City of Farmington v. Stansbury

• Decision Date: 13 November 1991
• Docket Number: No. 12927,12927
• Citation: 113 N.M. 100,1991 NMCA 129,823 P.2d 342
• Parties: CITY OF FARMINGTON, Plaintiff-Appellant, v. Gerald STANSBURY, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 342

823 P.2d 342

113 N.M. 100

CITY OF FARMINGTON, Plaintiff-Appellant, v. Gerald STANSBURY, Defendant-Appellee.

No. 12927.

Court of Appeals of New Mexico.

Nov. 13, 1991.

[113 NM 101] Jay B. Burnham, Deputy City Atty., Farmington, James P. Mueller, Children's Legal Foundation, Phoenix, Ariz., for plaintiff-appellant.

Thomas J. Hynes, Hynes, Hale & Thrower, Farmington, for defendant-appellee.

OPINION

BLACK, Judge.

Prior to the initiation of this action, the City of Farmington (City) prosecuted defendant under Farmington Municipal Code, Section 21-50.1 (the Ordinance), for distributing two videotapes, "X-Dreams" and "Horny Housewives." The matter went to trial before a jury. The jury in that case returned a general verdict of not guilty.

The City then brought the present charges against defendant for distributing two other videotapes, "Sex Games" and "Cat Alley." The Farmington municipal court found defendant guilty, and he appealed to the district court. Defendant then moved the district court for an order dismissing the charges, arguing that the prior acquittal collaterally estopped the City from prosecuting him further. The district court granted defendant's motion and ordered the case dismissed.

The City argues that the district court erred in applying the doctrine of collateral estoppel to this matter. While we are mindful of the potential misuse of serial prosecutions, based on the facts before us we must agree with the City and reverse.

In a memorandum opinion to the parties, the district court gave two reasons for granting the motion. First, the court determined that, as a matter of fact, all four movies were essentially the same, saying "the plots in these movies are shallow at best. The purpose of the movies is to depict various sexual interludes with the plot as a flimsy vehicle for the assignations to take place." The district court noted that if the first trial resolved the issue of obscenity against the City on the first two videos, and the second two movies depicted similar sex acts, then collateral estoppel would prevent subsequent prosecutions of similar material.

Second, the district court expressed concern that defendant had available for rental 800 of these types of videos at his place of business. Based on the fact that each of the two prosecutions was based on only two movies, the district court surmised that the City could be expected to bring another 398 prosecutions against defendant. "Two by Two," said the district court, "is an appropriate way to load an Ark, but a terrible way to bring things to the Courthouse." The court therefore concluded that judicial economy also mandated application of collateral estoppel principles.

The parties do not dispute that these movies had different titles, actors, directors, "plots," etc. The City relies on these differences to support the argument for reversal. Defendant's basic argument is that the trial court is correct because, though the movies are different in their particulars, the numerous sex acts are essentially the same in each movie. We believe defendant's argument is premised upon a fundamental misunderstanding of how the doctrine of collateral estoppel applies to obscenity prosecutions.

The doctrine of collateral estoppel prevents an issue of ultimate fact, once determined by a valid final judgment, from being litigated between the same parties or their privities in any future lawsuit. Buhler v. Marrujo, 86 N.M. 399, 524 P.2d 1015 (Ct.App.1974). In criminal prosecutions the principle of collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy. State v. Nagel, 87 N.M. 434, 535 P.2d 641 (Ct.App.1975). Double jeopardy thus comes into play when an ultimate fact has been determined at a previous trial. State v. Orosco, 99 N.M. 180, 655 P.2d 1024 (Ct.App.1982). Obviously, the Constitution only requires the application of collateral estoppel when there has been an acquittal on the issues actually raised in the first trial. State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975).

The doctrine of collateral estoppel undoubtedly applies in criminal obscenity prosecutions. Suki, Inc. v. Superior Court, 60 Cal.App.3d 616, 131 Cal.Rptr. 615 (1976); People v. Chang, 86 Misc.2d 272, 382 N.Y.S.2d 611 (1976). However, the doctrine must be very carefully tailored because of the nature of the test for obscenity. In Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973), the Court set forth the basic guidelines for determining whether a work is obscene: (1) whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes sexual conduct specifically defined by applicable state law in a patently offensive way; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. While it was not included in the record, it would appear the City Ordinance tracks the Miller test and enumerates several specific acts which might be considered "patently offensive" under the second prong of Miller. The Miller standard, then, requires the literary, artistic, political, and/or scientific value of each work to be judged in light of the community standards where the work is alleged to be obscene.

The first prong of the Miller test requires average people in each community to apply contemporary standards at the place and time defendant is charged. The fact that another person has been acquitted on obscenity charges for exhibiting the work in another community does not collaterally estop the state from subsequently prosecuting a different defendant for exhibiting the same work in a different community. Woodford v. Municipal Court, 37 Cal.App.3d 874, 112 Cal.Rptr. 773 (1974); cf. Cinema Assocs. v. City of Oakwood, 417 F.Supp. 146 (S.D.Ohio 1976) (recent determination by federal court that film was not obscene estopped prosecution of same film by local officials within geographical boundaries of that federal district).

The Miller test also recognizes community standards may vary, not only geographically, but over time. In McKinney v. Alabama, 424 U.S. 669, 96 S.Ct. 1189, 47 L.Ed.2d 387 (1976), the Court recognized that an equity judge's declaration that a work was obscene could not later be used to estop a defendant from presenting that same work to the jury in defendant's criminal trial, so that the jury could apply their interpretation of then-prevailing community standards to determine its obscenity vel non. In his concurrence, Justice Brennan pointed out that community standards may change over time. 424 U.S. at 689-90, 96 S.Ct. at 1200-01.

The second prong of the Miller test requires an examination of whether the work violates the specific ordinance under which charges are filed. It has thus been held the fact that defendant has been convicted of violating a municipal obscenity ordinance does not collaterally estop the state from filing charges under a state statute based on performance of the same play on a different occasion. State v. Ell-Gee, Inc., 255 So.2d 542 (Fla.Dist.Ct.App.1971). It has also been stated a finding that magazines were not obscene under a state statute would not collaterally estop the federal government from a prosecution under a federal statute. United States v. Luros, 243 F.Supp. 160 (N.D.Iowa), cert. denied, 382 U.S. 956, 86 S.Ct. 433, 15 L.Ed.2d 361 (1965). But see Cinema Assocs., 417 F.Supp. at 148.

Finally, and most pertinent herein, each work has to be individually evaluated to determine whether, taken as a whole, it lacks serious literary, artistic, political, or scientific value. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Various Articles of Merchandise, 600 F.Supp. 1383 (N.D.Ill.1985); KMA, Inc. v. City of Newport News, 228 Va. 365, 323 S.E.2d 78 (Va.1984), cert. denied, 471 U.S. 1100, 105 S.Ct. 2324, 85 L.Ed.2d 842 (1985). Logic therefore requires that collateral estoppel may not be used to transfer the finding of obscenity for one work to an entirely different work, merely because both depict...