Davis v. State

• Decision Date: 12 April 1996
• Docket Number: No. F-94-1232,F-94-1232
• Citation: 916 P.2d 251,1996 OK CR 15
• Parties: Anthony Aloysius DAVIS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 251

916 P.2d 251

Anthony Aloysius DAVIS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-94-1232.

Court of Criminal Appeals of Oklahoma.

April 12, 1996.

William R. Holmes, Norman, for Appellant at Trial.

Nancy Walker-Johnson, Norman, for Appellant on Appeal.

Lori Nettleton, Assistant District Attorney, Oklahoma City, for Appellee at Trial.

W.A. Drew Edmondson, Attorney General of Oklahoma, Patrick T. Crawley, Assistant Attorney General, for Appellee on Appeal.

OPINION

LANE, Judge:

Appellant, Anthony Aloysius Davis, was convicted by jury trial in the District Court of Oklahoma County in Case No. CF-93-4859 before the Honorable Richard W. Freeman, District Judge. Appellant was found guilty on five counts resulting primarily from his operation of a computerized bulletin board system ¹ where he trafficked in obscene pictures. He was convicted of the following:

Counts I and II: Distribution of Obscene Pictures in violation of 21 O.S.1991, § 1021(A)(3);

Count III: Possession of Obscene Material in violation of 21 O.S.1991, § 1024.2;

Count IV: Trafficking in Obscene Pictures in violation of 21 O.S.1991, § 1040.51; and,

Count V: Using a Computer to Violate Oklahoma Statutes in violation of 21 O.S.1991, § 1958.

The jury fixed punishment at five years imprisonment and a fine of $1,000.00 on each of the first three counts. In addition, the jury set punishment at five years imprisonment and a $25,000.00 fine for Count IV and five years imprisonment and a $5,000.00 fine for Count V. The jury recommended concurrent sentencing, but the trial court ordered the sentences to run consecutively and suspended the sentences in Counts III, IV and V. The trial court also ordered the Appellant to perform 500 hours of community service. Appellant has perfected his appeal and raises seven propositions of error in his brief-in-chief.

The present case involves novel issues for the Court with regard to the application of Oklahoma's obscenity statutes to the use of computer technology. We find that obscene material stored in electronic media and systems operators, or "sysops," of commercial computer bulletin board systems can be subject to the obscenity statutes. We affirm the judgment and sentence.

SUMMARY OF FACTS

In April of 1993, Lieutenant Tony Gregory of the Oklahoma City Police Department received a telephone call from an anonymous source that "obscene CDs" were being sold by an individual from a business called "Teleco," located at 1501 Southeast 66th Street in Oklahoma City. Sergeant Tony Gracey was assigned to investigate the caller's tip. Gracey spoke to the Appellant in the Teleco business office in late May, 1993. When Gracey asked if the Appellant had any interactive CD-ROMs, the Appellant replied that he did not, but that he could get some "adult" CD-ROMs.

Gracey returned to the Appellant's business on June 4, 1993. After the Appellant's secretary ushered Gracey into Appellant's office, Gracey said, "I'm here to talk to you about the adult CD-ROMs." Appellant closed his office door and produced a stack of eight CD-ROM discs. To Gracey's question, "Are these hard core?" Appellant replied, "They don't get any harder core than this." Appellant told Gracey the discs were illegal in Oklahoma, but were legal in Texas, and the local district attorney "was trying to clean up the county" and was "real bad on pornography." Gracey purchased one of the eight CD-ROM discs which was entitled "Triple X Extreme." Gracey paid $99.90 in cash for the disc. The disc held a number of subdirectories with names of sexual or erotic themes. At trial, Gracey entered "Triple X Extreme" into a computer's disc drive. He displayed images from the disc's files to the jury and proceeded to read the subtitles of a narrated story line accompanying moving images of various sexual acts portrayed by human actors.

The Appellant received a telephone call from Gracey on July 2, 1993. Gracey told Appellant he wanted another CD-ROM disc and Appellant replied he had plenty which were available. When Gracey arrived at Teleco, Appellant again presented Gracey with a stack of seven or eight discs. Gracey asked which disc was the best, and Appellant replied, "they [were] pretty much all the same." Gracey purchased a disc entitled "Volcano Hot Pics" for $100.00 in cash. Gracey returned this disc to the Appellant on July 12th and told the Appellant he did not like what it had on it, because it was not as hard core as he expected. Gracey asked for another disc in exchange for "Volcano Hot Pics." Appellant became upset with Gracey and stated that because the cartridge had already been opened Appellant would not take it back. Appellant was reminded by Gracey that the cartridge had already been opened when he purchased it. Appellant presented Gracey with a stack of CD-ROM discs and said, "Well, pick one and that's it this time." Gracey exchanged "Volcano Hot Pics" for a disc entitled "Ecstasy Hot Pics." At trial, the prosecution showed images from certain software files stored on the "Ecstasy Hot Pics" disc at trial. The obscenity evidence from this CD-ROM disc took the form of still pictures, or a slide show of images, rather than an animated projection on the computer monitor. These pictures were reproduced from a video capture board and scanner which translated pictures on film into digitized binary data capable of being held on disc.

On July 19, 1993, District Judge Virgil Black viewed the images accessed from the data held on the discs Sergeant Gracey purchased from Appellant. After determining that "Triple X Extreme" and "Ecstasy Hot Pics" contained obscene material under 21 O.S.1991, § 1024.2, Judge Black issued a search warrant and Oklahoma City police officers executed the warrant the following day. After the police arrived at Teleco on July 20th, the Appellant cooperated in allowing them to obtain evidence. He voluntarily showed them twenty-five "adult" compact discs in a box. The Appellant told the police that he had more "adult" discs in his office. The police seized six more discs situated on top of Appellant's desk which included the discs entitled "Triple X Extreme" and "Ecstasy Hot Pics." During the search, the police seized four more compact discs which were housed within a CD-ROM disc changer attached to a larger computer system. The police obtained a total of fifty-three compact discs of various titles. The police also seized the Appellant's business records which included mail order invoice forms showing that he had distributed "adult" discs to customers as far away as Australia and Hong Kong.

The State introduced photographs of four disc cartridges for the discs held within the CD-ROM disc changer used for allowing subscribers to access the files of the discs for their own viewing. The titles of these discs had cryptic names such as "Storm II Giflited Gif's," "BB Graphic Software, Volume I," "FAO CD-ROM Disc, Vol. 2, Profit Publishing," and "FAO CD-ROM Disc, Vol. 3, Profit Publishing." The four discs held within these cartridges formed the basis of the trafficking charge in Count IV. The Appellant operated a computer bulletin board named Oklahoma Information Exchange. Subscribers could access the images contained on the discs played on the computer system, such as the four discs playing within the computer system's disc changer when the police arrived. Before being transported to jail, the Appellant told the police that a person could call up his system and view what the discs were playing.

Nine telephone lines were attached to modems connected to the computer system. The modems were connected to two central processing computer units. A subscriber would call in by telephone through a modem attached to his personal computer to one of the Appellant's modems. The Appellant's modem would then translate an anti-lock signal into an additional signal which the Appellant's computer system would then process. The signals allowed the person calling in to use a software program that allowed him to access and download (i.e. copy) the files contained within the computer discs being played. ² Thus, a subscriber using a personal home computer at a different location could select a file from one of the CD-ROM discs being played on Appellant's computer system, download the file into his personal home computer, and then with the aid of translation software view the images from the file on his monitor.

Before accessing the obscene files, a subscriber must first obtain a password from the Appellant. The Appellant only gave the password to subscribers who submitted a written request to subscribe to the Adults Only Section of the Oklahoma Information Exchange bulletin board and who claimed to be over twenty-one years of age. Every subscriber paid a fee of $35.00 for six months use of the bulletin board. No extra charge was levied for access to the Adults Only Section. The Appellant advertised in the May, 1993 issue of Monitor, a local computer interest newspaper published by the OKC Personal Computer Users' Group, that more than 40,000 of the 190,000 computer files available on the Oklahoma Information Exchange bulletin board were of an "adult" or sexually explicit nature.

FAIR WARNING UNDER OKLAHOMA'S OBSCENITY STATUTES

In the first of his seven propositions of error, the Appellant argues CD-ROM discs containing obscene material are not prohibited in Oklahoma and that he was deprived of his constitutional right to due process on all five counts on the grounds the statutes did not provide fair warning of the conduct for which he was prosecuted and convicted. He does not challenge the jury's finding that the images shown at trial were obscene, and he explicitly states in his brief that he does not argue that the statutes in question are vague or over broad.

The Court's commitment to the constitutional right to fair notice, or fair warning, is not in conflict with the Court's commitment to proper statutory interpretation. In construing a...