DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STEVEN LEIF ALEXANDER, JR.,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Nos. 4D19-529 and 4D19-530
[January 29, 2020]
Consolidated appeal from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Cheryl A. Caracuzzo, Judge; L.T. Case No.
502015CF008279AXXXMB.
Leonard S. Feuer of Leonard Feuer, P.A., West Palm Beach, for
appellant.
Ashley Moody, Attorney General, Tallahassee, and Luke R. Napodano,
Assistant Attorney General, West Palm Beach, for appellee.
CONNER, J.
Steven Leif Alexander, Jr., appeals his convictions and sentences after
a jury found him guilty of four counts of transmission of material harmful
to minors, and the trial court’s subsequent revocation of his probation on
prior felonies based on the new law violations. Alexander contends the
trial court erred in: (1) instructing the jury on one of the elements of
transmission of material harmful to minors; (2) revoking his probation
because his convictions for the four new law violations were improper; and
(3) denying his pretrial motion to dismiss and motion at trial for judgment
of acquittal on the basis of entrapment. We affirm the trial court on the
jury instruction issue and explain our reasoning. Because we affirm on
the jury instruction issue, the issue regarding revocation of probation is
moot. We affirm without discussion the trial court’s rulings on the
entrapment issue.
Background
In 2016, Alexander was placed on probation for burglary and grand
theft. In 2017, Alexander was charged with six new felonies, resulting in
a jury trial on the new charges and a nonjury trial on the violation of
probation. The six new felonies consisted of two counts of soliciting a child
for unlawful sexual conduct using a computer and four counts of
transmission of material harmful to minors by electronic device or
equipment.
The new charges resulted from an undercover investigation of Craigslist
internet advertisements. 1 A detective responded to an ad placed by
Alexander. The ad title stated “Searching for hot married, taken or prego
chics – m4w,” 2 and included a nude photo of Alexander from the chest
down, showing an erect penis. The detective responded to the ad by email,
using an undercover persona named “Tina,” clearly stating she was a 14
year old girl. The response generated a series of rapid succession emails
leading to Alexander and the detective exchanging cellphone numbers.
Thereafter, Alexander and the detective engaged in approximately 400 text
messages. Several photographs were attached to various text messages,
including four pictures of Alexander’s erect penis. The text messages with
the four pictures was the basis of the four counts of transmission of
material harmful to minors. In the text messages, Alexander sought
pictures of Tina, but the request was denied on the pretext of being shy.
Within nine messages, Alexander asked Tina if she wanted to “get naked
and dirty.” When the detective asked what he meant, Alexander explained
he wanted to engage in oral sex with her.
The record shows that the detective did not initiate any sexual
conversation in the emails or text messages and the text messages
Alexander used for the prosecution were situations in which the picture
was unsolicited by the detective. There were times when the detective
thought that continued contact had come to an end or she actually invited
an end to continued contact, and was surprised when Alexander
reinitiated the conversation. The reinitiated discussions by Alexander
involved him describing the sexual things he wanted to do with Tina.
The exchanges online between Alexander and the detective began with
the detective’s email response to Alexander’s ad on March 21, 2017, and
1 Craigslist is an internet service for posting classified ads, similar to classified
ads in newspapers. One component of the service includes “Personal” ads.
2 According to arguments made to the jury, “prego chicks” refers to pregnant
women. Testimony indicated “m4w” means “man for woman.”
2
ended with a text message received by the detective on April 13, 2017,
stating, “You’re a whore stop talking to my husband bitch.” Alexander was
subsequently arrested on the new charges on May 23, 2017.
At trial, Alexander admitted that he regularly used Craigslist to seek
sexual encounters. He explained that many times people responding to
his ad were not really interested in following through with a sexual
encounter or were people interested in identity theft or blackmail. He
testified that over time he learned that in order to determine if people
responding to his ad were seriously interested in a sexual encounter, he
needed to request that the person responding send a picture of herself and
give him a cellphone number. He further testified that he could tell if a
responder was a “catfish” by whether the person would avoid or couldn’t
answer simple questions or would not send a picture of herself. If he
figured out a responder was a “catfish,” he frequently would make a game
out of the experience. His defense at trial was that he knew from the initial
contact with Tina that she was a “catfish.”
The jury returned a verdict finding Alexander guilty of all four counts
of transmission of material harmful to minors, but could not agree on a
verdict as to the two counts of soliciting a child for unlawful sexual
conduct using a computer. The trial court granted a mistrial as to those
counts, whereupon the State nolle prossed them. The trial court
adjudicated Alexander guilty of the four counts of transmission of material
harmful to minors, designated him as a sexual offender on all four counts,
revoked his probation, and imposed prison sentences for the four new
charges and the two felonies for which Alexander was on probation.
Alexander gave notice of appeal.
Appellate Analysis
Alexander was charged by information with four counts of transmission
of material harmful to minors by electronic device or equipment, a violation
of section 847.0138(2), Florida Statutes (2017). The statute proscribes:
(2) Notwithstanding ss. 847.012 and 847.0133, any person
who knew or believed that he or she was transmitting an
image, information, or data that is harmful to minors, as
defined in s. 847.001, to a specific individual known by the
defendant to be a minor commits a felony of the third degree
....
§ 847.0138(2), Fla. Stat. Section 847.001(6), Florida Statutes (2017),
defines “harmful to minors” as:
3
[A]ny reproduction, imitation, characterization, description,
exhibition, presentation, or representation, of whatever kind
or form, depicting nudity, sexual conduct, or sexual
excitement when it:
(a) Predominantly appeals to a prurient, shameful, or morbid
interest;
(b) Is patently offensive to prevailing standards in the adult
community as a whole with respect to what is suitable
material or conduct for minors; and
(c) Taken as a whole, is without serious literary, artistic,
political, or scientific value for minors.
§ 847.001(6), Fla. Stat. (2017).
Using Florida Standard Jury Instruction (Criminal) 11.21, the jury was
instructed as follows:
To prove the crime of material harmful to minors by electronic
device or equipment, the state must prove the following three
elements beyond a reasonable doubt with this photograph:
(1) Steven Alexander knowingly sent an image,
information, or data he knew or believed to be
harmful to minors;
(2) Steven Alexander sent the image,
information, or data to a specific individual who
was either actually known to him to be a minor or
believed by him to be a minor; and
(3) Steven Alexander sent the image,
information, or data via electronic mail.
An image, information, or data that is harmful to a minor
means any reproduction, imitation, characterization,
description, exhibition, presentation, or representation of
whatever kind or form depicting nudity, sexual conduct, or
sexual excitement when it:
(a) predominantly appeals to a prurient,
shameful, or morbid interest;
4
(b) is patently offensive to prevailing standards in
the adult community as a whole with respect to
what is suitable material or conduct for minors;
and
(c) taken as a whole is without serious literary,
artistic, political, or scientific value for minors.
....
A “prurient interest” in sex is a shameful or morbid interest in
sex, nudity, or excretion. Material does not appeal to a
prurient interest if the average person today can view the
material candidly, openly, and with a normal interest in sex.
Alexander argues that the trial court erred in giving the standard jury
instruction for transmission of material harmful to minors, because the
instruction does not instruct the jury to consider whether the allegedly
obscene material violates a community standard regarding prurient
interest. He further argues that the standard jury instruction does not
comport with the requirements imposed by the First Amendment regarding
alleged obscenity as explained by the Supreme Court in Miller v. California,
413 U.S. 15 (1973). Specifically, Alexander argues that the standard jury
instruction is deficient because the “prurient interest” prong of the
definition of “harmful to minors” does not describe or relate itself to any
community standard in evaluating whether the material is “prurient.”
The State responds that the standard jury instruction is not erroneous
because it: (1) is a correct statement of statutory law; and (2) applies the
standard set forth by the Supreme Court in Ginsberg v. New York,
390
U.S. 629 (1968), which determined the obscenity standard to be used with
regards to minors. Additionally, the State argues that even if the Miller
standard is applied in this case, any error is harmless.
We agree with the State’s counter-arguments. However, with regards
to the State’s first counter-argument, Alexander does not dispute that the
standard jury instruction tracks the statutory language, and he does not
argue the statute is unconstitutional, facially or as applied. Instead,
Alexander focuses his argument on the fact that the statutory offense
addresses material and conduct protected under the First Amendment as
freedom of speech. Thus, Alexander contends that in order to properly
convict for transmission of material harmful to minors by electronic device
or equipment, the jury must be instructed in a way that does not violate
constitutional protections. Consequently, we proceed to explain our
5
agreement with the State’s arguments regarding Ginsberg and harmless
error.
Obscenity Standards under Miller and Ginsberg
In 1957, a majority of the Supreme Court explained in Roth v. United
States,
354 U.S. 476 (1957), that obscenity is not protected by the First
Amendment.
Id. at 492. A little more than ten years later, the Court
specifically addressed a New York obscenity statute which prohibited the
sale to minors under 17 years of age of material defined to be obscene as
to minors but not adults. Ginsberg,
390 U.S. at 631. In Ginsberg, a
majority of the Court agreed with and quoted the New York Court of
Appeals that:
[T]he concept of obscenity or of unprotected matter may vary
according to the group to whom the questionable material is
directed or from whom it is quarantined. Because of the
State’s exigent interest in preventing distribution to children
of objectionable material, it can exercise its power to protect
the health, safety, welfare and morals of its community by
barring the distribution to children of books recognized to be
suitable for adults.
Id. at 636 (quoting Bookcase, Inc. v. Broderick,
218 N.E.2d 668, 671 (N.Y.
1966)). Thus, the majority concluded that it could not “say that the statute
invades the area of freedom of expression constitutionally secured to
minors.” Id. at 637. More specifically, the majority wrote:
We do not regard New York’s regulation in defining obscenity
on the basis of its appeal to minors under 17 as involving an
invasion of such minors’ constitutionally protected freedoms.
Rather [the statute] simply adjusts the definition of obscenity
“to social realities by permitting the appeal of this type of
material to be assessed in term of the sexual interests . . .” of
such minors. That the State has power to make that
adjustment seems clear, for we have recognized that even
where there is an invasion of protected freedoms “the power
of the state to control the conduct of children reaches beyond
the scope of its authority over adults[.]”
Id. at 638 (second alteration in original) (citations omitted). Importantly,
a majority of the Court concluded that “[t]o sustain state power to exclude
material defined as obscenity by [a statute directed to the protection of
minors] requires only that we be able to say that it was not irrational for
6
the legislature to find that exposure to material condemned by the statute
is harmful to minors.” Id. at 641. Important to our resolution of the
instant appeal, the majority in Ginsberg determined that New York’s
statutory definition of “harmful to minors” was a permissible
constitutional basis to restrict access of children to sexual material. The
New York statute provided:
“Harmful to minors” means that quality of any description or
representation, in whatever form, of nudity, sexual conduct,
sexual excitement, or sadomasochistic abuse, when it:
(i) predominantly appeals to the prurient, shameful or morbid
interest of minors, and
(ii) is patently offensive to prevailing standards in the adult
community as a whole with respect to what is suitable
material for minors, and
(iii) is utterly without redeeming social importance for minors.
Id. at 646.
Having established in Ginsberg that the standards for obscenity can be
different for minors, as compared to adults, a majority of the Court five
years later in Miller reevaluated the standards for determining what is
obscene with regards to adults. The Court explained the need for
reevaluation:
While Roth presumed “obscenity” to be “utterly without
redeeming social importance,” Memoirs[ 3] required that to
prove obscenity it must be affirmatively established that the
material is “utterly without redeeming social value.” Thus,
even as they repeated the words of Roth, the Memoirs plurality
produced a drastically altered test that called on the
prosecution to prove a negative, i.e., that the material was
“utterly without redeeming social value”—a burden virtually
impossible to discharge under our criminal standards of
proof.
3 A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney
General of Massachusetts,
383 U.S. 413 (1966), which is frequently referred to as
“Memoirs v. Massachusetts.”
7
....
Apart from the initial formulation in the Roth case, no majority
of the Court has at any given time been able to agree on a
standard to determine what constitutes obscene, pornographic
material subject to regulation under the States’ police power.
Miller,
413 U.S. at 21-22 (emphasis added). After observing that “State
statutes designed to regulate obscene materials must be carefully limited,”
the majority went on to hold that for adults as possessors or recipients of
sexual material,
[t]he basic guidelines for the trier of fact must be: (a) whether
“the average person, applying contemporary community
standards” would find that the work, taken as a whole,
appeals to the prurient interest[]; (b) whether the work depicts
or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c)
whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value. We do not adopt as a
constituional [sic] standard the “utterly without redeeming
social value” test of Memoirs v. Massachusetts,
383 U.S., at
419,
86 S.Ct., at 977; that concept has never commanded the
adherence of more than three Justices at one time.[] If a state
law that regulates obscene material is thus limited, as written
or construed, the First Amendment values applicable to the
States through the Fourteenth Amendment are adequately
protected by the ultimate power of appellante [sic] courts to
conduct an independent review of constitutional claims when
necessary.
Id. at 24-25 (emphasis added).
Two years after Miller, a majority of the Court again affirmed that “[i]t
is well settled that a State or municipality can adopt more stringent
controls on communicative [sexual] materials available to youths than on
those available to adults”. Erznoznik v. City of Jacksonville,
422 U.S. 205,
212 (1975) (citing to Ginsberg). Important to our analysis, the Court wrote
in footnote that “[w]e have not had occasion to decide what effect Miller will
have on the Ginsberg formulation.”
Id. at 213 n.10.
We deem it important to note that on the subject of standards for
judging obscenity, or the areas of sexual material that can be
8
constitutionally restricted by government, the Supreme Court has many
plurality decisions and few majority decisions. Focusing on the majority
opinions issued in Roth, Ginsberg, Miller, and Erznoznik, we glean the
following clear legal principles:
(a) Obscenity is not protected by the First Amendment.
(b) Standards for restricting access to sexual materials or conduct by
governments can be constitutionally permissible for minors, even
though the same standards would not be permissible for adults.
(c) Governments can restrict the access of minors to sexual materials
and conduct if it is harmful to minors.
(d) The statutory definition of “harmful to minors” reviewed in Ginsberg
was deemed to not violate the First Amendment.
Applying the above clear legal principles, we conclude that the standard
jury instruction used in this case is an accurate statement of Florida law,
including the definition of “harmful to minors,” which has been determined
by the Supreme Court to properly allow the state to restrict the access to
minors of certain sexual material and conduct. We reject Alexander’s
argument that Miller changed the status of constitutional law regarding
minors as stated in Ginsberg. More specifically, we hold that until a
majority of the United States Supreme Court or the Florida Supreme Court
holds otherwise, the jury does not need to be specifically instructed that it
is to use a community standard, statewide or countywide in determining
if material or conduct is prurient.
In addition to our reliance on the majority opinions in Roth, Ginsberg,
Miller, and Erznoznik, we find additional support for our holding from our
reading of the Florida Supreme Court’s opinion in Simmons v. State,
944
So. 2d 317 (Fla. 2006), as well as a provision of the standard jury
instruction not discussed by either side in the briefs.
In Simmons, our supreme court approved the decision of the First
District declaring section 847.0138 to be a valid statute after it was
attacked by Simmons as being facially unconstitutional.
Id. at 321. The
facially unconstitutional claim was grounded on arguments that the
statute violates the First and Fourteenth Amendments because it is overly
broad in its proscription.
Id. at 322. Although the court did not address
any issue concerning jury instructions, in upholding the constitutionality
of the statute, the court wrote:
9
The term “harmful to minors” is defined in section 847.001(6),
Florida Statutes (2002), and incorporates the constitutional
standard for obscenity established by the United States
Supreme Court in Miller v. California,
413 U.S. 15,
93 S.Ct.
2607,
37 L.Ed.2d 419 (1973), as modified for juveniles in
Ginsberg v. New York,
390 U.S. 629,
88 S.Ct. 1274,
20
L.Ed.2d 195 (1968).
Id. at 325. Thus, it seems clear that our supreme court agrees that the
Miller standard for obscenity applicable to adults is modified by the
Ginsberg standard applicable to minors.
We also deem it significant that the standard jury instruction for
section 847.0138 instructs the jury that:
A “prurient interest” in sex is a shameful or morbid interest in
sex, nudity, or excretion. Material does not appeal to a
prurient interest if the average person today can view the
material candidly, openly, and with a normal interest in sex.
Fla. Std. Jury Instr. (Crim.) 11.21 (emphasis added). If it is the case that
Miller imposes a requirement that the prurient interest prong for defining
obscenity be determined by using a community standard, in our view the
definition of “prurient interest” in the standard jury instruction meets that
requirement.
For the reasons discussed above, we hold that the trial judge did not
err in using standard jury instruction 11.21.
Harmless Error Analysis
The State argues that even if the standard jury instruction was
deficient, any error is harmless because no jury would find that the four
pictures used by the prosecution did not predominantly appeal to a
prurient, shameful, or morbid interest. We agree with the State’s
argument.
In Pope v. Illinois,
481 U.S. 497 (1987), the Supreme Court addressed
whether a national or local community standard applied to the literary,
artistic, political, or scientific value prong for assessing whether material
is obscene for adults.
Id. at 498-99. In that case, the trial court instructed
the jury to apply a community standard from a local viewpoint. The
Supreme Court clarified in Pope that a local viewpoint standard is to be
applied for the prurient interest and patent offensiveness prongs of Miller’s
10
three-part assessment, but a national viewpoint standard is to be applied
to the value prong.
Id. at 500-01. Because the trial court used the wrong
standard, the Court went on to determine whether the error was harmless.
Id. at 501. The Court noted that “[a]lthough we plainly have the authority
to decide whether, on the facts of a given case, a constitutional error was
harmless under the standard of Chapman v. California,
386 U.S. 18,
87
S.Ct. 824,
17 L.Ed.2d 705 (1967), we do so sparingly.” Id. at 504. The
Court also determined in Pope that the instruction using the wrong
community standard was harmless, reasoning that:
[I]n the present cases the jurors were not precluded from
considering the question of value: they were informed that to
convict they must find, among other things, that the
magazines petitioners sold were utterly without redeeming
social value. While it was error to instruct the juries to use a
state community standard in considering the value question,
if a reviewing court concludes that no rational juror, if
properly instructed, could find value in the magazines, the
convictions should stand.
Id. at 503.
Similarly, if we were to agree with Alexander that the jury was
improperly instructed on the correct standard to be used in evaluating
whether the pictures used by the prosecution met the prurient interest
prong of Miller, we are satisfied that the record clearly establishes that no
rational juror would find the standard was not met, if properly instructed.
Conclusion
Having determined that the trial court did not err in instructing the
jury, denying the pretrial motion to dismiss and motion for judgment of
acquittal based on entrapment, and revoking probation, we affirm
Alexander’s convictions, revocation of probation, and sentences.
Affirmed.
LEVINE, C.J., and KUNTZ, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
11
