Can a Defendant Be Charged In Multiple Counts for Undeveloped Photographs Involving Child Pornography ?
In Schneider v. State, 700 So. 2d 1239 (Fla. 4th DCA 1997), the defendant was charged in multiple counts with violating section 827.071(5).
The evidence reflected that the defendant induced two boys, ages 12 and 13, to pose for a photographic session in the nude and engage in sexual acts with each other.
The police later confiscated the defendant's camera with undeveloped film in it.
The subsequently developed film depicted nine pictures of the boys in sexual positions.
In addressing the question of whether the state had improperly charged the defendant for possession of each of the nine pictures, the court ruled:
We affirm defendant's conviction and sentence on multiple counts, including nine counts of possessing material that includes sexual performance by a child. ... the statute is unambiguous. We construe it, applying plain and ordinary meaning to its wording.
The statutory language is both clear and applicable.
The dictionary lends further credence to our construction.
Webster's defines the term photograph as 'a picture or likeness obtained by photography' with the root word photography defined as the 'the art or process of producing images on a sensitized surface (as a film) by the action of radiant energy and esp. light.' Merriam Webster's Collegiate Dictionary 857 (10th ed. 1993)). . . . . Hence, by definition, a photograph is the exposure of the film at the time the picture is snapped.
A hard copy of the photograph is a print and the developed film would be a negative. . . . This court has recently recognized that possession a computer image of child pornography is punishable under this statute. State v. Cohen, 696 So. 2d 435 (Fla. 4th DCA 1997).