FOBURG v. STATE (2002)

Richard Foburg appeals his convictions and sentences for one count of battery, three counts of contributing to the delinquency of a minor, and one count of showing obscene material to a minor.   We affirm the convictions and sentences on all the misdemeanor charges without comment but reverse the felony conviction regarding the obscene material.

Foburg was charged with showing obscene material to a child in violation of section 847.0133, Florida Statutes (1995).   The only evidence the State presented that tended to show that the material was obscene, as that term has been defined by section 847.001, was contained in the testimony of the victim named in the information and that of another teenage girl.   After reviewing that testimony, we agree with Foburg that the evidence was insufficient to make a prima facie showing that the material was obscene.   Accordingly, we conclude that the trial court erred in failing to grant a judgment of acquittal as to count V. Therefore, the conviction and sentence for showing obscene material to a minor are reversed.

Affirmed in part, reversed in part, and remanded with directions that the trial court discharge Foburg as to count V.

I concur as to the affirmance of Foburg's misdemeanor conviction.   I respectfully dissent as to the reversal of his felony conviction of showing obscene material to a minor.

I believe the State presented a prima facie case which created an issue to be decided by the trier of fact.

Concurs in part, dissents in part.

DAVIS, Judge.

NORTHCUTT, J., Concurs. WHATLEY, J., Concurs in part, dissents in part, with opinion.