Second Motion To Dismiss

SECOND MOTION TO DISMISS

(Counts 3, 29, and 30)

COMES NOW the Defendant, by and through his undersigned counsel, pursuant to Rule 3.190, Fla. R. Crim. P., and respectfully moves this Honorable Court to dismiss Counts 3, 29, and 30 of the Information of the above-styled cause, and, as grounds therefore, states as follows:

INTRODUCTION
1. The Defendant is charged in this case by Information.
2. Count 3 of the Information alleges tampering with physical evidence (that is, destruction of a computer hard drive), in violation of §918.13, Fla. Stat., a third degree felony.
3. Count 29 of the Information alleges promoting sexual performance by a child (that is, the Defendant allegedly did, “record a video depicting the lewd exhibition of the penis of M.S.”), in violation of §827.071(3), Fla. Stat., a second degree felony.
4. Count 30 of the Information alleges lewd and lascivious conduct (that is, the Defendant allegedly did “unlawfully touch … M.S. to kiss him with an open mouth”), in violation of §800.04(6)(b), Fla. Stat., a second degree felony.

MEMORANDUM OF LAW

A. Count 3 – Tampering with Physical Evidence

The State has alleged, in Count 3 of their Information, that the Defendant:
… did alter, destroy, conceal or remove a hard drive with the purpose to impair its verity or availability in a proceeding or investigation knowing that a criminal trial, proceeding or investigation by a duly constituted law enforcement agency of this state was pending or was about to be instituted …

(emphasis added).

This “hard drive” was seized during the time of the July 16 search of the Defendant’s house. That hard drive is subject to suppression, as demonstrated in the Defendant’s contemporaneously filed Motion to Suppress Evidence (the content of which is incorporated and adopted herein). Thus, assuming suppression is granted, the Court need not necessarily reach the merits of this motion.
As demonstrated in the Defendant’s Motion to Suppress Evidence, the July 16 Search Affidavit did not provide probable cause for the seizure, and/or later search, of a “hard drive.” Thus, the “hard drive” the Defendant allegedly “altered, destroyed, concealed or removed” was not evidence that could be legally seized by the State. Since it could not be lawfully seized, it was factually and legally impossible for the Defendant to have committed the crime charged.

Moreover, since the Affidavit contained no probable cause the Defendant was engaged in possession of child pornography, which Affiant has further admitted, under oath in his sworn deposition, the searching officers could not have been lawfully conducting an “investigation” of any items containing child pornography – including the hard drive.

Similarly, the Defendant had no knowledge of the existence, and certainly did not have knowledge of the content, of the Affidavit or the Search Warrant. Indeed, the Warrant was not served on him until after the officers had entered his home (and the Affidavit was not disclosed until days later). Thus, he did not know the nature of their “investigation,” let alone that the investigation involved alleged possession of child pornography (which, as noted, it did not, because Affiant, admittedly, and as revealed on the face of the Affidavit, had no probable cause the Defendant was in possession of child pornography).

By law, the State has to prove both the (1) existence of an “investigation” related to the items allegedly destroyed, and, (2) knowledge on the part of the Defendant of the existence of that “investigation.” §918.13, Fla. Stat.; Fla. Std. Jury Instr. (Crim.) 21.8.

To establish a violation of the statute, “the State must prove a defendant ‘had knowledge of an impending investigation and destroyed evidence in order to impair its availability for the investigation.’” Costanzo v. State, 152 So.3d 737 (Fla. 4th DCA 2014) (emphasis added), citing State v. Major, 30 So.3d 608, 609 (Fla. 4th DCA 2010) (quoting C.K. v. State, 753 So.2d 617, 618 (Fla. 4th DCA 2000)).

All reported case recite that statutory element of knowledge, such that, to establish a violation of the statute governing tampering with physical evidence, the state must prove the defendant had knowledge of an impending investigation and destroyed evidence in order to impair its availability for the investigation. Reinlein v. State, 75 So.3d 853 (Fla. 2d DCA 2011); State v. Major, 30 So.3d 608 (Fla. 4th DCA 2010)

As noted, since the issuance of the search warrant was accomplished in secret, the Defendant would not possible have known of the subject matter or scope of the warrant, let alone that it [improperly] sought evidence of child pornography.

This knowledge element is integrally related to the Constitutional rights under the Fifth Amendment. Thus, in order to punish a defendant for an act associated with his constitutional right not to bear witness against himself, proof beyond reasonable doubt is required that defendant harbored proscribed intent of tampering with evidence to impair its availability was proof in criminal proceeding or investigation. McNeil v. State, 438 So.2d 960 (Fla 1st DCA 1983). Again, no such intent can exist where the defendant has not been made aware of the nature and scope of the “investigation,” such as is the case here, with a secret search warrant.

Moreover, as the State well knows – the hard drive was not destroyed. The State retains its full capacity to retrieve its contents, which is an additional basis for granting this motion.

Costanzo, at 738, further stated:
Similarly, in Evans v. State, 997 So.2d 1281 (Fla. 4th DCA 2009), we held that the trial court erred in denying a motion for judgment of acquittal on a charge of tampering with evidence where the defendant threw a crack cocaine rock onto sandy ground as officers approached for a stop. We held that the fact the officers were unable to find the drugs due to the nature of the surface of the ground did not demonstrate the necessary specific intent to tamper with or conceal the evidence. Id. at 1284.

Such equivocal conduct differs from that conduct that completely destroys potential evidence, such as swallowing an object. See State v. Jennings, 666 So.2d 131, 133 (Fla.1995); McKenzie v. State, 632 So.2d 276, 277 (Fla. 4th DCA 1994) (holding that “swallowing a substance” demonstrates the necessary intent to amount to a violation of section 918.13, just like “flushing it down a toilet”).
(emphasis added).

Lastly, the Court will note that Count 2 charges the identical statutory crime – but as it involves the iPhone that was the subject of the search. Even if the Defendant had been given a copy of the Search Affidavit, prior to the search, the only probable cause he would have read would have been as to his iPhone, which further demonstrates he could not possibly have had knowledge of any investigation involving child pornography, such that Count 3 is particularly appropriate for dismissal.
For the reasons stated herein, the State cannot prove either of these required elements.

B. Count 29 – Promoting Sexual Performance by a Child

The State has alleged, in Count 29 of their Information, that the Defendant:
… on or between January 1 and July 13, in the County of ST. JOHNS and State of Florida, did produce, direct or promote a sexual performance, to wit: did record a video depicting the lewd exhibition of the penis of M.S., a child less than 18 years of age, while knowing the character and content thereof, contrary to Florida Statute 827.07(3).

(emphasis added).
This video is contained in a flash drive which was seized during the time of the July 16 search of the Defendant’s house. That flash drive (identified by the State as a USB flash drive) is subject to suppression, as demonstrated in the Defendant’s contemporaneously filed Motion to Suppress Evidence (the content of which is incorporated and adopted herein). Thus, assuming suppression is granted, the Court need not necessarily reach the merits of this motion.

§827.071(3) proscribes “promoting sexual performance by a child when … [the performance] includes sexual conduct.” (emphasis added). In turn, “sexual conduct” is defined in §827.071(1)(h) as follows:

“Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.

(emphasis added – to the only portion of this statute applicable to Count 29).

The State asserts that the “exhibition of the penis of M.S.,” recited in Count 29, involves a photograph taken while M.S., then 8 years old, was taking a bath. None of the conduct defined as “sexual conduct” by the statute can possibly apply to this video, other than the “actual lewd exhibition of the genitals” part of the definition of sexual conduct. Indeed, that is precisely what Count 29 alleges.

However, any such exhibition must be “in a vulgar, indecent, lewd, or lascivious manner.” There is no definition “lewd” in Fla. Std. Jury Instr. (Crim) 16.9. However, that term is defined in several other Florida Statutes and jury instructions, including Fla. Std. Jury Instr. (Crim.) 11.9. That jury instruction contains definitions that inform us as to the meaning of the term “lewd,” as follows:
As used in regard to this offense the words “vulgar,” “indecent,” “lewd,” and “lascivious” mean the same thing. They mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act.

Acts are not vulgar, indecent, lewd, or lascivious unless such acts cause offense to one or more persons viewing those acts or unless the acts substantially intrude upon the rights of others.

Clearly, a picture of the penis of an 8 year old, while taking a bath, cannot possibly qualify under that definition.

Florida case law has repeatedly held that mere nudity does not qualify as a lewd and lascivious exhibition of sexual organs. Duvallon v. State, 404 So.2d 196, 197 (Fla. 1st DCA 1981); Goodmakers v. State, 450 So.2d 888, 891 (Fla. 1st DCA 1984). Specifically, the sexual organs must be “in a state of arousal.” Goodmakers at 891. The State has no such evidence – nor could they, given the young age of M.S. Indeed, even public nudity does not qualify under the statute. United States v. A Naked Person Issued Notice of Violation No. P419490, 841 F.Supp. 1153 (MDF 1993).
To put a finer point on the failure of Count 29 to state an offense, even an adult taking a bath in the presence of a child does not qualify as lewd and lascivious. McKinley v. State, 244 P. 208 (33 Okla. Crim. Court of Appeals 1926). A fortiori, an 8 year old child taking a bath in the presence of an adult cannot possibly qualify as lewd and lascivious conduct.
In short, Count 29 fails to state an offense and should be dismissed.

C. Count 30 – Lewd and Lascivious Conduct

The State has alleged, in Count 30 of their Information, that the Defendant:
… on or between January 1 and July 13, in the County of ST. JOHNS and State of Florida, … did unlawfully and intentionally touch, M.S. a person less than 16 years of age, in a lewd or lascivious manner {or} did solicit to commit a lewd or lascivious act, by forcing M.S. to kiss him with an open mouth, contrary to Florida Statute § 800.04(6)(b).

(emphasis added).
This video is contained in a flash drive which was seized during the time of the July 16 search of the Defendant’s house. That flash drive (identified by the State as a USB flash drive) is subject to suppression, as demonstrated in the Defendant’s contemporaneously filed Motion to Suppress Evidence (the content of which is incorporated and adopted herein). Thus, assuming suppression is granted, the Court need not necessarily reach the merits of this motion.

§800.04(6)(b) proscribes “intentionally touching a person under 16 years of age in a lewd or lascivious matter.” (emphasis added). In turn, “lewd and lascivious manner” is defined in Fla. Std. Jury Insts. (Crim.) 11.10(d) as follows:
The words “lewd” and “lascivious” mean the same thing and mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act.

Obviously, “lewd and lascivious,” under Count 30, carries the same definition as it does under Count 29, and thus the law recited above is equally applicable.
More specifically, counsel has thoroughly researched §800.04(6)(a)1., and has not found a single case holding for the proposition that an open mouth kiss can possibly qualify as “lewd and lascivious” under this statute.

Thus, unless the State has such a case, it is clear that the conduct alleged in Count 30 fails to state an offense, and is subject to dismissal.
WHEREFORE, the Defendant respectfully requests that this Honorable Court dismiss Counts 3, 29, and 30 of the Information in the above-styled cause.