Possession of Child Pornography

To prove the crime of [Possession] [Control] [Intentional Viewing] [Solicitation] of Child Pornography, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) [knowingly possessed] [knowingly controlled] [intentionally viewed] [knowingly solicited] a[n] [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation].

2. The [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation] included, in whole or in part, child pornography.

3. (Defendant) knew that the [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation] included child pornography.

Possession. Give if applicable.
To prove (defendant) possessed a[n] [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation] that included child pornography, the State must prove beyond a reasonable doubt that [he] [she] a) knew of the nature of the material in the [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation]; and b) intentionally exercised control over that [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation].

Control can be exercised over an item whether the item is carried on a person, near a person, or in a completely separate location. Mere proximity to an item does not establish that the person intentionally exercised control over the item in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the item or the present ability to direct its control by another.

Joint possession. Give if applicable.
Possession may be sole or joint, that is, two or more persons may possess a[n] [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation].

Give if applicable.
“Intentionally view” means to deliberately, purposefully, and voluntarily view. Proof of intentional viewing requires establishing more than a single image, motion picture, exhibition, show, image, data, computer depiction, representation, or other presentation over any period of time.

Give if applicable.
“Solicited” means to try to obtain.

§ 827.071(1), Fla. Stat.
“Child pornography” means:
1. Any image depicting a minor engaged in sexual conduct;

or

2. Any image that has been created, altered, adapted, or modified by
electronic, mechanical, or other means, to portray an identifiable
minor engaged in sexual conduct.

“Identifiable minor” means a person:
1. Who was a minor at the time the image was created, altered, adapted,
or modified, or whose image as a minor was used in the creating,
altering, adapting, or modifying of the image;

and

2. Who is recognizable as an actual person by the person's face, likeness,
or other distinguishing characteristic, such as a unique birthmark, or
other recognizable feature.

The term may not be construed to require proof of the actual identity of
the identifiable minor.

“Minor” means any person, whose identity is known or unknown, younger
than 18 years of age.

“Sexual conduct” means actual or simulated sexual intercourse, deviate
sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse;
actual or simulated 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. [A mother’s breastfeeding of her
baby does not under any circumstance constitute “sexual conduct.”]

“Deviate sexual intercourse” means sexual conduct between persons not
married to each other consisting of contact between the penis and the anus, the
mouth and the penis, or the mouth and the vulva.

“Sadomasochistic abuse” means flagellation or torture by or upon a
person, or the condition of being fettered, bound, or otherwise physically
restrained, for the purpose of deriving sexual satisfaction from inflicting harm
on another or receiving such harm oneself.

“Actual or simulated lewd exhibition of the genitals” may be evidenced by
the overall contents of an image taking into account the age of the minor
depicted and including, but not limited to whether, the focal point of the image
is on the minor’s genitals, the setting of the image is sexually suggestive or in a
place or pose generally associated with sexual conduct, the minor is depicted in
an unnatural pose or in inappropriate attire considering the age of the minor,
the image suggests sexual coyness or a willingness to engage in sexual conduct
or the image is intended or designed to elicit a sexual response in the viewer.

“Sexual battery” means oral, anal, or female genital* penetration by, or
union with, the sexual organ of another or the anal or female genital penetration
of another by any other object[; however, “sexual battery” does not include an
act done for a genuine medical purpose].

“Female genitals”* includes the labia minora, labia majora, clitoris, vulva,
hymen, and vagina.

Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013).
“An object” includes a finger.

Phillips v. State, 238 So. 3d 308 (Fla. 4th DCA 2018).
“Union” means contact.

“Sexual bestiality” means any sexual act between a person and an animal
involving the sex organ of the one and the mouth, anus, or female genitals of the
other.

“Simulated” means the explicit depiction of “sexual conduct,” as defined
above, which creates the appearance of such conduct and which exhibits any
uncovered portion of the breasts, genitals, or buttocks.