The “Invisible Audience”: How Judges Ignore the Law to Preserve Convictions

By: John Guidry

Anyone out there watch ABC’s Castle? It is a solve-the-murder-flirting-detectives show (a la Moonlighting) that follows the same formula as every other crime show. You know they haven’t found the killer in the first 15 minutes because if they did, what would they talk about for the remaining 45?

There is always that one character early on who says, “We’ve found the killer, let’s go have some drinks.” But no, the lead detective (Beckett) has a hunch. She knows something isn’t right, and she peels back the layers to uncover the truth.

Believe it or not, this happens in real criminal cases, too. In our case today, we find an intellectually lazy majority opinion written to preserve a conviction, and one dissenting judge who stands up to peel back the layers of dishonesty.

All of this excitement can be found in Jenrette-Smith v. State, 114 So. 3d 427 (2d DCA 2013).

Convicted of a crime based on a twisted interpretation of the law?

The statute means what it says. Call John today at (407) 423-1117.

The Rule: Ambiguity Goes to the Accused

Before we delve into the case, let’s review the rules. Florida Statute 775.021(1) contains a mandatory rule: When the language of a criminal statute is susceptible to differing constructions, it shall be construed most favorably to the accused.

Easy enough, right? If the law is confusing, the tie goes to the defendant. But as you will discover, knowing the law and choosing to follow it are two different things.

The Facts: Photos in a Mattress

Mr. Jenrette-Smith received 30 years in prison after a jury convicted him of “Promoting a Sexual Performance by a Child.”

• The Scenario: He let a 16-year-old runaway (“M.S.”) live in his home.
• The Photos: They took sexual pictures of themselves. No one else was around. No audience.
• The Development: They had the pictures developed at Walgreens.
• The Stash: M.S. testified the pictures were stashed in his mattress.

The First Problem: Possession Did he actually “possess” the photos? M.S. couldn’t remember who carried them from Walgreens or if Jenrette-Smith ever looked at them. The majority reasoned that because he paid for them and they were in his bed, he possessed them. (Weak, but let’s move on to the real issue).

The Real Problem: Where is the “Audience”?

The crime was Promoting a Sexual Performance. The statute defines “Performance” as:

“Any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience.”

It is those last four words—“exhibited before an audience”—that matter. In this case, there was no audience. Just him and the girl. No one else saw them.

The Lazy Majority: The majority opinion simply ignored this requirement. They essentially ruled that “audience” doesn’t really mean “audience.”

The Brilliant Dissent (Judge Northcutt): It took the sharp legal mind of Judge Northcutt to expose this faulty reasoning. In one of the best dissents I’ve read, he blasted the majority:

“The statute might be read to mean that only ‘any other visual representation’ must be exhibited before an audience… On the other hand, it is also reasonable to interpret the phrase as qualifying the entire list… Because the latter construction narrows the scope… it is the one that must prevail.”

Judge Northcutt correctly argued that “exhibiting to an audience connotes volitional acts aimed at displaying something to someone else.” Since Jenrette-Smith showed the photos to no one, there was no audience. Therefore, no “performance.” Therefore, no crime.

“Cows Eat Corn, But Corn Isn’t Hamburger”

Judge Northcutt wasn’t done. He also tore apart the idea that Jenrette-Smith “possessed” the images the moment he took the photo (before it was developed).

“That is an absurd proposition: the fact that cows eat corn does not mean that corn qualifies as hamburger. It is just as absurd to suggest that a single step in the photographic process… constitutes what is commonly understood to be a photograph.”

The majority upheld a 30-year sentence by twisting the English language until it broke.

John’s 2026 Update: The Statute Has Evolved

Note: The specific statute number has shifted, but the danger remains.

1. The “Audience” Loophole is Still Ignored As of 2026, Florida Statute 827.071 still defines “Performance” as a visual representation “exhibited before an audience.”

• Despite Judge Northcutt’s brilliant argument, most appellate courts continue to side with the Jenrette-Smith majority. They refuse to let defendants off on the “technicality” that no one else saw the photos.
• Our Strategy: We still preserve this argument for appeal. If the Supreme Court ever decides to read the statute literally, all these convictions could be overturned.

2. The “Possession” Charge is Easier In 2026, prosecutors often skip the “Promoting” charge and go straight for Possession of Child Pornography (F.S. 827.071(5)).

• This statute is much broader. It does not require an audience. It only requires that you knowingly possessed or viewed the image.
• The “Cloud” Danger: Today, “possession” includes images in your cloud storage or browser cache, even if you didn’t download them to a hard drive. The “Cows eat Corn” argument is harder to make when digital images exist instantly.

Don’t Let Them Twist the Words

If you are charged with a crime based on a stretched interpretation of a statute, we need to fight it. The law says what it says, not what the judge wishes it said.

Call me at (407) 423-1117. Let’s make them follow the rules.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.