vs.
Respondent.
) Case No. 10-3319PL
On September 24, 2010, a duly-noticed hearing was held in Starke, Florida, before Lisa Shearer Nelson, an Administrative Law Judge.
The issue to be presented is whether Respondent failed to maintain good moral character as alleged in the Administrative Complaint, in violation of Section 943.1395(7), Florida Statutes, and if so, what penalty should be imposed?
On May 24, 2010, Petitioner, Florida Department of Law Enforcement (Petitioner or FDLE), filed an Amended Administrative Complaint against Respondent, William McLeod. The Amended Administrative Complaint alleges that he knowingly and unlawfully possessed a photograph or other presentation which he knew to include any sexual conduct by a child, and that by such conduct Respondent failed to maintain good moral character by violating the provisions of Section 827.071(5), Florida Statutes, thereby violating Section 943.1395(7), Florida Statutes.
On March 8, 2010, Respondent filed an Election of Rights form indicating that he disputed the facts alleged in the Amended Administrative Complaint and requested a hearing pursuant to Section 120.57(1), Florida Statutes. On June 16, 2010, the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge.
On June 24, 2010, a Notice of Hearing was issued, scheduling the matter for hearing on August 27, 2010. At the request of Petitioner, the matter was continued and rescheduled for September 24, 2010, and proceeded as scheduled.
At hearing, Petitioner presented the testimony of Linda Paige Bell, E.B.H. (a minor), and Benton Ebberson. Petitioner's Exhibit numbered 1 was admitted into evidence. Respondent testified on his own behalf and presented the testimony of Jeff
Anderson. Respondent's Exhibit numbered 1 was also admitted into evidence.
The transcript of the proceedings was filed with the Division on October 13, 2010. At the request of Respondent, the deadline for submission of proposed recommended orders was extended to November 5, 2010. Both parties timely filed Proposed Recommended Orders, which have been carefully considered in the preparation of this Recommended Order. Unless otherwise indicated, all references to the Florida Statutes are to the 2008 version.
At all times material to the allegations in the Administrative Complaint, Respondent was certified as a law enforcement officer by the Florida Department of Law Enforcement, having been issued certificate number 281123.
Respondent was employed by the City of Madison Police Department from December 2008 through July 2009.
At the beginning of 2009, Respondent was 23 years old.
Sometime in late December 2008 or early in 2009, Respondent received the telephone number for E.B.H. from Paige Bell, a friend of E.B.H.'s. At the time Ms. Bell gave Respondent E.B.H.'s number, E.B.H. was 16 years old.
Respondent knew that E.B.H. was under the age of 18.
Although the exact time-frame of the communications is unclear, in approximately January or February of 2009, Respondent
and E.B.H. texted and called each for a one to two-week period. They never met in person.
During their short period of communication, the two sent each other pictures of themselves so that each knew what the other looked like.
E.B.H. testified that the first pictures sent were normal photos where she was clothed. After receiving those, she testified that Respondent asked her for "sexy" photos of herself wearing no underclothing. In response, E.B.H. sent him two pictures of herself, either nude or partially nude.
The communication between Respondent and E.B.H. was brief, lasting no more than a few weeks. Once E.B.H. learned that Respondent was a law enforcement officer, she stopped texting him because she did not want either of them to get in trouble.
Sometime after the texting stopped, the police chief for City of Madison Police Department received an anonymous complaint alleging that Respondent had possession of nude pictures of a minor female. On July 7, 2009, Sergeant Benton Ebberson was assigned to conduct an internal investigation in response to the complaint.
As part of his investigation, Sergeant Ebberson spoke to several individuals who did not testify at hearing. What those individuals told him during the investigation is clearly hearsay. However, from these interviews, Sergeant Ebberson was
able to gather enough information to get descriptions of the photos and identify E.B.H. as the subject of the photos.
As a consequence, Sergeant Ebberson located and, with the permission of her parents, interviewed E.B.H. She admitted sending the photos to Respondent, but no longer had possession of the phone from which the texts were sent or copies of the pictures. Her father had discovered her actions and the pictures earlier in the year, and had deleted the photos and confiscated her telephone.
Respondent also was interviewed as a consequence of the internal investigation. Consistent with the information he gave during his interview, he denies asking for the photos and claims
E.B.H. sent them to him on her own volition. Whether he asked for the pictures is not particularly relevant. There is no dispute that E.B.H. sent and Respondent received at least two pictures of E.B.H. in which E.B.H. was wearing little or no clothing.
Respondent claims that, while he received the pictures and looked at them, he did not know they were pictures of E.B.H., and therefore a minor, because the pictures did not include her face. However, he knew that the pictures were received from E.B.H.'s telephone number. Respondent did not report receiving the pictures to either his supervisors or to E.B.H.'s parents.
Respondent also claims that upon receiving the pictures, he simply deleted them. His testimony to this effect
is not credible. E.B.H. testified credibly that while she had sent inappropriate photographs to a former boyfriend on a separate occasion, she had sent these photographs to Respondent only. Regardless of the possible motives involved for complaining, it makes no sense that anyone would be able to complain to the police department and that the photos could be described in sufficient detail for Sergeant Ebberson to be able to locate E.B.H. unless Respondent either talked about receiving the photos or showed the photos to someone else.
The photos, however, are not in evidence. E.B.H. knew she was either completely nude or only partially dressed, but could provide very little other information about the photos. No evidence was presented to indicate that the photos included a depiction of sexual conduct.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes (2010).
The Criminal Justice Standards and Training Commission is responsible for the certification and regulation of law enforcement officers, correctional officers and instructors.
§ 943.12, Fla. Stat.
In this case, the Commission seeks to take disciplinary action against Respondent's certification as a law enforcement
officer. This disciplinary action by Petitioner is a penal proceeding, and Petitioner bears the burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Sterne & Co., 670 So. 2d 932 (Fla. 1996); Ferris v.
Turlington, 510 So. 2d 292 (Fla. 1987).
The burden to prove the allegations in the Administrative Complaint by clear and convincing evidence is a significant burden. As reiterated by the Supreme Court of Florida,
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Section 943.13, Florida Statutes, establishes the minimum qualifications for certification of law enforcement officers and correctional officers in the State of Florida. Among those qualifications is the requirement that a law enforcement officer possess good moral character, as determined
by a background investigation under procedures established by the Commission.
Once an officer is certified, Section 943.1395(7), Florida Statutes, authorizes the Commission to define good moral character by rule for the purpose of imposing discipline. Subsection (6) outlines the procedure the Commission follows upon receiving a complaint against a law enforcement officer. Subsection 943.1395(7) provides:
(7) Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s. 943.13(7), the commission may enter an order imposing one or more of the following penalties:
Revocation of certification.
Suspension of certification for a period not to exceed 2 years.
Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.
Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.
Issuance of a reprimand.
Pursuant to the mandate in Section 943.13(7), the Commission has defined good moral character for the purposes of discipline. Florida Administrative Code Rule 11B-27.0011(4) provides in pertinent part:
For the purposes of the Criminal Justice Standards and Training Commission’s implementation of any of the penalties
specified in Section 943.1395(6) or (7), F.S., a certified officer’s failure to maintain good moral character required by Section 943.13(7), F.S., is defined as:
The perpetration by an officer of an act that would constitute any felony offense, whether criminally prosecuted or not.
The pertinent allegations in the Administrative Complaint provide as follows:
On or between June 1, 2009 and June 30, 2009, the Respondent, William McLeod, did knowingly and unlawfully possess a photograph, exhibition, representation, or other presentation, which, in whole or in part, he knows to include any sexual conduct by a child.
The actions of the Respondent did violate the provisions of Section 827.071(5) or any lesser included offenses, Section 943.1395(7), Florida Statutes and Rule 11B- 27.0011(4)(a), Florida Administrative Code, in that Respondent has failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a Law Enforcement officer in the State of Florida have good moral character.
Paragraph three of the Administrative Complaint is a word-for-word duplication of the allegations in paragraph 2.
Petitioner contends that the conduct by Respondent would be a violation of Section 827.071(5), Florida Statutes. That section provides in pertinent part:
(5) It is unlawful for any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child. The possession of each such photograph, motion picture, exhibition,
show, representation, or presentation is a separate offense. Whoever violates this subsection is guilty of a felony of the third degree, punishable as provided in s.775.082, s.775.083, or s.775.084.
"Sexual conduct" is defined in subsection (1) of the statute as follows:
(g) “Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual 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.”
There is no testimony that the photos sent by E.B.H. and received by Respondent depicted actual or simulated intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, or 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. The only question is whether the photos included "actual lewd exhibition of the genitals."
There are a number of cases that have interpreted the
definition of "sexual conduct" contained in Section 827.07(1)(g), Florida Statutes. Nudity alone does not constitute sexual conduct under the statute. Schmitt v. State, 590 So. 2d 404, 411 (Fla. 1991); State v. Jenkins, 910 So. 2d 934 (Fla. 2d DCA 2005); State v. Pasko, 815 So. 2d 680 (Fla. 2d DCA), rev. denied, 835 So. 2d 268 (Fla. 2002). Even in those instances where a defendant has secretly taped minor girls dressing, showering, and performing acts of female hygiene or where a father has set up cameras in his minor daughters' bedrooms and bathrooms have not met the standard for depiction of sexual conduct. Fletcher v.
State, 787 So. 2d 232 (Fla. 2d DCA), rev. denied, 796 So. 2d 537 (Fla. 2001); Lockwood v. State, 588 So. 2d 57 (Fla. 4th DCA 1991).
In State v. Brabson, 7 So. 3d 1119 (Fla. 2d DCA 2008), rev. denied, 17 So. 3d 1226 (Fla. 2009), the Second District Court of Appeal discussed the requirements of Section 827.071(1)(g), Florida Statutes, at length, and relied upon factors enumerated in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), to determine whether pictures of two under-aged girls met the definition of "lascivious exhibition of the genitals or pubic area of any person," part of the definition of "sexually explicit conduct" in a statute similar to Section 827.071, Florida Statutes. The Dost court stated:
[T]his Court feels that, in determining whether a visual depiction of a minor constitutes a "lascivious exhibition of the genitals or pubic area" under § 2255(2)(E),
the trier of fact should look to the following factors, among any others that may be relevant in the particular case:
whether the focal point of the visual depiction is on the child's genitalia or pubic area;
whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
whether the child is fully or partially clothed, or nude;
whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
Of course, a visual depiction need not involve all of these factors to be a "lascivious exhibition of the genitals or pubic area." The determination will have to be made based on the overall content of the visual depiction, taking into account the age of the minor.
Id. at 832.
Five of the factors the Dost court identifies require examination of the pictures themselves, in order to determine what focus, setting, or pose suggests or emphasizes. The problem in this case, of course, is that the photographs are not in evidence and apparently no longer exist. It is impossible for the undersigned to determine whether the factors identified in Dost would apply. Respondent's conduct in texting and exchanging pictures with a girl that is clearly a minor was questionable at best, and did not exhibit good judgment. However, given that
under Florida case law, nudity alone is insufficient to satisfy the definition of sexual conduct under Section 827,071(1)(g), Florida Statutes, it cannot be determined by clear and convincing evidence that Respondent is guilty of the charges alleged in the Administrative Complaint.
RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint in its entirety.
DONE AND ENTERED this 14th day of December, 2010, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2010.
Kerra A. Smith, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Ernest M. Page, IV, Esquire Post Office Box 167
Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
