Child porn verdict reversed

It is not a crime to paste images of children's faces on pornographic pictures, a state appeals court ruled Friday, overturning the conviction of a former Polk County school principal who is serving five years in prison.

John Stelmack, 63, was found guilty of child pornography last year after authorities said he superimposed the faces of two girls on photos of nude women to make it appear as if the girls were in lewd poses.

The girls were students at schools where Stelmack had worked, investigators said.

However, the 2nd District Court of Appeal ruled that Circuit Judge Mark Carpanini should have set aside the conviction because the state law under which Stelmack was charged "requires sexual conduct by a child and the only sexual conduct in the images is that of an adult."

The appeals court ruling was correct, said Charles Rose, a professor at Stetson University College of Law.

"What that guy did, I mean it was creepy, it was perhaps morally repugnant, but it was not a crime," he said.

"And if we're not happy with that, then we as a state should change the statutes," Rose said.

Although the court ordered the case be discharged, Stelmack will remain in prison until an official order is issued, his appellate attorney said. That typically takes about 15 days.

"We hope to have him out by the holidays," Lawrence Walters said.

Walters said he had spoken to Stelmack's wife but not to Stelmack.

"I'm sure he'll be very pleased," he said. "It's been a long road for him and he's ill. That's been one of our motivating factors in getting him out quickly."

Prosecutors do not plan to appeal.

"We have consulted with the state attorney general's office and there simply isn't an avenue of appeal," said Chip Thullbery, spokesman for the state attorney's office for Polk County.

The ruling likely will affect another Polk case. Danny Lynn Parker, 41, a volunteer Sunday school teacher, is also serving five years in prison for producing child pornography after authorities said he took photographs of children and superimposed their faces over adult images.

Thullbery said Parker's case is pending before the 2nd District Court of Appeal.

In the Stelmack case, the state appeals court found the images were disturbing but not illegal. Among other things, the court noted the law was intended to protect children from exploitation in sexual performance, "and no children engaged in sexual performances to create the composite images in this case."

The U.S. Supreme Court in 2002 overturned a federal law that made computer-simulated child pornography illegal. The high court ruled that because the computer-generated depictions were not the product of the actual sexual abuse of children they were protected by the First Amendment.

esilvestrini@tampatrib.com

(813) 259-7837

News Channel 8 reporter Jennifer Leigh contributed to this report.