Com. v. Rosenberg

• Decision Date: 10 December 1979
• Parties: , 5 Media L. Rep. 2339 COMMONWEALTH v. Nathan ROSENBERG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 451

398 N.E.2d 451

379 Mass. 334, 5 Media L. Rep. 2339

COMMONWEALTH v. Nathan ROSENBERG.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 4, 1979.

Decided Dec. 10, 1979.

William P. Homans, Jr., Boston, for defendant.

William L. Pardee, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, LIACOS and ABRAMS, JJ.

ABRAMS, Justice.

The central issue on appeal is whether the part owner and manager of Sam's Spa, a neighborhood variety store in Everett, was properly convicted of knowingly disseminating obscene matter in violation of G.L. c. 272, § 29. ¹

After a trial by jury, Nathan Rosenberg was found guilty of disseminating the May, 1976, issue of Hustler magazine, knowing it to be obscene. ² Rosenberg appealed from the denial of his motion for a directed verdict made at the close of the Commonwealth's case, and we granted direct review on our own motion.

Rosenberg claims that the Commonwealth failed to produce sufficient evidence to allow the jury to conclude beyond a reasonable doubt that he knew the magazine to be obscene at the time he sold it. We agree, and hold that Rosenberg's conviction must therefore be reversed.

The Commonwealth's evidence consisted of the testimony of Nicholas Addonizio, an Everett police department detective, and one copy each of the May, 1976, issues of Hustler and Penthouse magazines.

Addonizio's testimony indicated that on the afternoon of April 23, 1976, as the result of a conversation with a superior officer, he went to Sam's Spa "looking for two magazines, Penthouse and Hustler magazines." Detective Addonizio was familiar with the store, since he lived in the neighborhood and had visited the store repeatedly over a period of twenty years. He knew Rosenberg, and Rosenberg knew Addonizio was a police officer.

Addonizio described the defendant as the owner of the store, and Rosenberg's father-in-law as the previous owner. The store merchandise consisted of groceries and "odds and ends like that."

When Detective Addonizio entered the store, he went first to a magazine rack on his right, but was unable to find a copy of Hustler or Penthouse there. He then turned to a second magazine rack, to the left of the door, next to a counter, and in this rack found a May, 1976, issue of each magazine.

This second rack contained approximately three or four rows of magazines. Detective Addonizio could not recall what the rack was made of but did recall that Hustler and Penthouse were located in the middle of the rack, approximately five feet above the floor. The rack contained several copies of each magazine. All magazines in the rack were displayed so that only the top portion of each magazine, containing its title, was exposed.

This second rack was not separated from the rest of the store by any barrier. There were no signs specifically describing the magazines in the second rack as "adult" or distinguishing them in any way from the magazines located in the other rack. Detective Addonizio, although asked to do so, was unable to describe the other magazines in the rack from which he had taken Hustler and Penthouse. He testified that he was familiar with what is meant by "men's" or "adult" magazines, but could not recall whether such magazines were located in the rack from which Hustler was taken. He could not recall the title of any other magazine located in this rack, and added only that Playboy magazine was located "near" this rack.

Having located the magazines, Detective Addonizio removed them from the rack and walked to the nearby counter, behind which Rosenberg was standing. Rosenberg approached him, and the detective asked how much the magazines cost; Rosenberg told him the amount, and Addonizio paid it. (At trial, Detective Addonizio was unable to recall the amount paid. The cover of the May, 1976, issue of Hustler lists a price of $1.75.)

In the course of paying for the magazines, Addonizio placed them on the counter, front cover facing up. Rosenberg did not examine the magazines, however. And when asked if Rosenberg "did anything" prior to giving him the price for the magazines, Addonizio replied, "No, he did not."

Standard of review. "In reviewing the denial of a motion for directed verdict, we consider only the evidence introduced up to the time the Commonwealth rested its case." Commonwealth v. Borans, --- Mass. ---, --- ^A, 393 N.E.2d 911, 922 (1979). Commonwealth v. Kelley, 370 Mass. 147, 150, 346 N.E.2d 368 (1976). We must determine whether this evidence "considered in its light most favorable to the Commonwealth, was sufficient to permit the jury to infer the existence of the essential elements of the crime charged." Commonwealth v. Dunphy, --- Mass. ---, --- - --- ^B, 386 N.E.2d 1036, 1038 (1979). "(T)he evidence and the inferences permitted to be drawn therefrom must be 'of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of (guilt) beyond a reasonable doubt.' " Commonwealth v. Latimore, --- Mass. ---, --- ^C, 393 N.E.2d 370, 374 (1979), quoting from Commonwealth v. Cooper, 264 Mass. 368, 373, 162 N.E. 729 (1928). Finally, since the Commonwealth must produce such evidence in regard to each element necessary to obtain a conviction under G.L. c. 272, § 29, In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), such evidence must exist in regard to proof that Rosenberg sold the May, 1976, issue of Hustler "knowing it to be obscene."

Proof of scienter. The Commonwealth contends that the fact that Rosenberg was the active owner and manager of Sam's Spa supports an inference that he had actual knowledge of the magazine's contents, and therefore knowingly disseminated obscene material. Beyond this, the Commonwealth argues that the jury could reasonably have inferred that Rosenberg had constructive knowledge of the magazine's contents from viewing the magazine's cover at the time it was sold. Finally, the Commonwealth suggests that as owner and manager of the Spa, Rosenberg had constructive knowledge of the contents of his entire stock-in-trade, including the May, 1976, issue of Hustler magazine. We disagree.

As a general matter, proof of knowledge must be personal to the defendant but may be had "by inference from all the facts and circumstances developed at the trial." Commonwealth v. Holiday, 349 Mass. 126, 128, 206 N.E.2d 691, 693 (1965).

More specifically, the "knowing" required by G.L. c. 272, § 29, is defined by G.L. c 272, § 31, ³ as "a general awareness of the character of the matter" disseminated. We have had occasion to construe this statutory language. See Commonwealth v. 707 Main Corp., 371 Mass. 374, 382-383, 357 N.E.2d 753, 760 (1976); Commonwealth v. Thureson, 371 Mass. 387, 389-391, 357 N.E.2d 750 (1976). In doing so we have noted that "(t)he Massachusetts definition of 'knowledge' . . . emphasizes that knowledge of legal obscenity is not required." Commonwealth v. 707 Main Corp., supra, 371 Mass. at 383, 357 N.E.2d at 760. "To require proof of a defendant's knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law." Hamling v. United States, 418 U.S. 87, 123, 94 S.Ct. 2887, 2910, 41 L.Ed.2d 590 (1974).

We have also stressed, however, that the Massachusetts definition "does not dispense . . . with the constitutional requirement that a defendant have knowledge of the matter's contents and general character before a criminal conviction for its dissemination may be obtained." Commonwealth v. 707 Main Corp., supra, 371 Mass. at 383, 357 N.E.2d at 760. Absent evidence of such knowledge, "a criminal case will not pass the directed verdict stage." Id.

Proof of scienter is required in order "to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity." Mishkin v. New York, 383 U.S. 502, 511, 86 S.Ct. 958, 965, 16 L.Ed.2d 56 (1966). In holding that protection of First Amendment rights requires proof of scienter even in the case of sales to minors, we noted that "(a)bsent the scienter requirement, booksellers, unable to familiarize themselves with all the material on their shelves, would tend to restrict sales . . . to the relatively few books of which they had some knowledge of the contents or character. The result would be an impediment to the sale . . . not only of unprotected matter but also of that which is constitutionally protected." Commonwealth v. Corey, 351 Mass. 331, 334, 221 N.E.2d 222, 224 (1966).

While knowledge of both ⁴ the character and contents of the material disseminated is thus a required element of the offense described in G.L. c. 272, § 29, the "knowing" called for by the statute may be something less than actual knowledge. Just as the Supreme Court reasoned that requiring knowledge of the legal status of the material sold would immunize all those who conscientiously avoided "brush(ing) up on the law," Hamling v. United States, 418 U.S. 87, 123, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), the adoption of a requirement of actual knowledge would allow a disseminator of obscenity to immunize himself by studiously maintaining his ignorance regarding the specific contents of the materials he sells. See State v. Hudson County News Co., 41 N.J. 247, 258, 196 A.2d 225, 231 (1963) ("Otherwise, a bookseller need only close his eyes to the material he handles to avoid prosecution under an obscenity statute").

The Commonwealth need not produce an eyewitness to testify that an alleged disseminator such as Rosenberg actually read or viewed the materials at issue. Commonwealth v. Thureson, 371 Mass. 387, 389, 357 N.E.2d 750 (1976). Smith v. California, 361 U.S. 147, 154, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). Rather, "(t)he prosecution must produce evidence from which a jury could conclude beyond a reasonable doubt that the defendant had seen, or...