STEVEN LEIF ALEXANDER, JR.

v.

STATE OF FLORIDA

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]

CORRECTED OPINION

Consolidated appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Cheryl A. Caracuzzo, Judge; L.T. Case No. 502015CF008279AXXXMB and 502017CF005147AXXXMB.

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.

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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

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:

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[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;

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

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

“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.”