The defendant in the case of Stelmack v. State, 35 Fla. L. Weekly D2672 (Fla. 2d DCA December 3, 2010) appealed from a conviction of possessing child pornography in violation of Fla. Stat. § 827.071(5). This statute makes it illegal to knowingly possess a photograph that depicts sexual conduct by a child.
The photographs in question were crudely prepared by pasting the head of a child onto a photograph of an adult female. The female in the pictures was a 19 year old model who was lewdly exposing her genitals.
At the close of the state's case the defense moved for a judgment of acquittal arguing that the images of the genitals were that of an adult, not a child.
The Court of Appeals noted that Fla. Stat. § 827.071(5) and its legislative history, did not apply to the pictures. To violate this statute the picture must depict a child lewdly exhibiting his or her genitals. The pictures in possession of the defendant exhibited only the face of a child and the lewd exhibition of genitals of an adult. Therefore, the Court of Appeals reversed the conviction and remanded the case for the trial court to discharge the defendant.