Parker v. State, 81 So. 3d 451

Danny Parker appeals convictions and sentences for possession of child pornography under Fla. Stat. § 827.071(5) after a negotiated plea and partial nolle prosequi.
He challenged the trial court’s denial of his motion to dismiss the information, arguing the conduct depicted did not constitute child pornography.
The State’s photographs included heads of children superimposed on adult bodies, with some images showing sexual activity; none were computer-generated.
The majority reverses as to seven photographs (counts 1, 2, 3, 5, 6, 7, 10) based on Stelmack v. State, holding they do not meet the statute’s requirement of sexual conduct by a child.
The court also reverses on counts 4, 8, and 9, finding the depictions involve sexual activity but conclude the images do not involve conduct by a child under the statute.
The decision discusses the statutory definition of ‘sexual conduct’ and the meaning of ‘simulated,’ comparing Florida law to federal precedents (e.g., Hotaling) and distinguishing Stelmack.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does possession of morphed child images violate § 827.071(5)?	Parker: images include child sexual conduct.	Parker contends the statute reaches morphs with child conduct.	No, as to the seven photos; lacks child sexual conduct.
Do depictions of sexual activity with a child’s head on an adult body constitute child pornography under § 827.071(5)?	Parker argues they do.	Parker’s view aligns with the dissent’s broad reading.	No, the conduct is adult; not ‘by a child.’
Does Stelmack control the outcome for photos depicting lewd activity with child-adult composites?	Stelmack limits to lewd exhibition by a child.	Stelmack should be distinguished; morphs with explicit activity reach § 827.071(5).	Partially controls; majority reverses as to counts 4, 8, 9 per Stelmack guidance with distinctions.
Are the three photographs depicting sexual activity protected by the First Amendment?	Zidel-like reasoning should apply to protect morphed images.	Hotaling supports criminalization of morphed images of identifiable children.	The majority finds no First Amendment protection for these morphs; statute applies.
Should the court affirm or remand on the First Amendment/constitutional questions?	Constitutionality arguments were not essential to outcome.	Constitutionality may be implicated; dissents discuss Zidel/Hotaling.	Remand/partial reversal consistent with Stelmack; constitutional question left unresolved.

Stelmack v. State, 58 So.3d 874 (Fla. 2d DCA 2010) (only lewd exhibition by a child constitutes conduct)
State v. Beckman, 547 So.2d 210 (Fla. 5th DCA 1989) (constitutional facial challenge acknowledged in Florida)
United States v. Bach, 400 F.3d 622 (8th Cir. 2005) (morphed images fall within § 2256(8)(C) analysis)
Hotaling, 599 F. Supp. 2d 306 (N.D.N.Y. 2008) (court held morphed minor images criminal under PROTECT Act § 2256(8)(C))
Zidel, 156 N.H. 684, 940 A.2d 255 (N.H. 2008) (morphed images lacking child sexual conduct not punishable; First Amendment concerns)
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (overbreadth of prior morphed-image statute addressed; CPPA evolution)
New York v. Ferber, 458 U.S. 747 (1982) (legislative interest in protecting children in sexual content)