Dunlap v. State

• Decision Date: 17 September 1990
• Docket Number: No. CR,CR
• Citation: 303 Ark. 222,795 S.W.2d 920
• Parties: Allen DUNLAP, Appellant, v. STATE of Arkansas, Appellee. 90-79.
• Court: Arkansas Supreme Court

Page 920

795 S.W.2d 920

303 Ark. 222

Allen DUNLAP, Appellant, v. STATE of Arkansas, Appellee.

No. CR 90-79.

Supreme Court of Arkansas.

Sept. 17, 1990.

John Wesley Hall, Jr., Little Rock, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

GLAZE, Justice.

Allen Dunlap, appellant, is the owner and operator of two "adult" entertainment establishments in Little Rock--American Arcade and United Arcade. As a result of a vice investigation conducted in 1987 and 1988 by the Little Rock Police Department, appellant was charged with promoting obscene materials in violation of Ark.Code Ann. § 5-68-303 (1987). Appellant's first trial resulted in a mistrial because the jury could not reach a unanimous verdict.

When the appellant was retried, the state introduced into evidence two video tape movies, "Nasty Habits Are Hard to Break" and "Girls on F Street", and a magazine, "Black Girls White Cocks." These pornographic materials were bought in the appellant's establishments by Detective Carlos Corbin during the investigation. Appellant was convicted and sentenced to six years imprisonment and a $10,000 fine. He argues five points of error on appeal. We find no error and therefore affirm.

Under Ark.Code Ann. § 5-68-303, unless certain defenses contained in Ark.Code Ann. § 5-68-308 apply, a person commits promoting obscene materials if he knowingly promotes, or has in his possession with the intent to promote, any obscene material. Obscene material means material which does the following:

(A) Depicts or describes in a patently offensive manner sadomasochistic abuse, sexual conduct, or hard-core sexual conduct;

(B) Taken as a whole, appeals to the prurient interest of the average person, applying contemporary standards; and

(C) Taken as a whole, lacks serious literary, artistic, political or scientific value.

Ark.Code Ann. § 5-68-302(4) (1987).

In one of his points on appeal, the appellant argues that our Obscenity Law is unconstitutional under the first and fourteenth amendments to the United States Constitution. We summarily dismiss this point by stating that we rejected this same argument in an earlier case involving the appellant. Dunlap v. State, 292 Ark. 51, 728 S.W.2d 155 (1987). Our Obscenity Statutes were drafted pursuant to the guidelines set out by the Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), which has recently been reaffirmed in Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989).

We next address the appellant's sufficiency of the evidence argument. Appellant argues that the trial court erred in denying his motion for a directed verdict because the state failed to prove the scienter element of the offense--that he knowingly promoted obscene materials. Specifically, appellant states that he was not present when the pornographic materials were purchased by Detective Corbin and that he had not seen either of the two films.

While knowingly is not defined under the Arkansas Obscenity Law, it is defined under the general criminal statutes as the following:

A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

Ark.Code Ann. § 5-2-202(2) (1987). In obscenity cases, the Supreme Court has stated that it is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). It is not necessary to prove that a defendant had knowledge of the legal status of the materials. Id.

As we have stated numerous times, we treat directed verdicts as challenges to the sufficiency of the evidence. See, e.g., Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). In reviewing the sufficiency of the evidence, this court views the evidence in the light most favorable to the appellee, and affirms if there is any substantial evidence in support of the verdict. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990). Substantial evidence, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). In determining the sufficiency of the evidence, it is permissible for the court to only consider the testimony that tends to support the verdict of guilt. Id.

Here, appellant is the sole owner and proprietor of both "adult" establishments, and all the utility and tax records are in his name. As shown by photographs introduced into evidence by the appellant, both of the "adult" business establishments had magazines, movie tape boxes and sexual devices displayed on the walls. Since the magazines were in clear plastic covers, their front covers were in plain view of anyone in the store. Appellant testified that he and his employees screen the movies and admitted that most of his stock was "pretty well" hard-core sexual conduct.

Sexually explicit photographs visible on the covers of magazines on display have been held sufficient to demonstrate that the defendant knowingly promoted and sold obscene material. See State v. Simmer, 772 S.W.2d 372 (Mo.1989). Here, the cover of the magazine, "Black Girls White Cocks," featured a lurid photograph of a woman showing her genitalia and being penetrated in the anus by a man. On the back cover, two naked women are pictured with men ejaculating on their breasts. In addition, the magazine's front cover contained sexually explicit language stating the magazine contained pictures of sexual intercourse and oral sex between women and men. Considering appellant's ownership and personal involvement in the business along with the sexually explicit materials on display on the premises, the jury, at the very least, surely could have reasonably inferred appellant was aware of the contents or character of the magazines and other materials that were for sale or rent.

If any doubt of appellant's knowledge still lingered after such evidence, we would also note that the jury learned from the appellant's own testimony that he had been convicted under this same obscenity statute before. See Dunlap v. State, 292 Ark. 51, 728 S.W.2d 155 (1987). Evidence of prior arrests or convictions for violations of obscenity laws has been held to be probative in showing the defendant's knowledge. See State v. McKinney, 718 S.W.2d 583 (Mo.App.1986). We believe the evidence presented below was more than sufficient to support the jury's determination that the appellant had knowledge of the contents, nature and character of the pornographic materials.

In his second point, appellant argues that the trial court erred in admitting the video movie "Girls on F Street" into evidence. The movie, "Girls on F Street," was not listed in the information or shown at the first trial. Before this second trial, a pre-trial conference was conducted and the appellant and the deputy prosecutor discussed the evidence to be presented. The deputy prosecutor informed the court and the appellant that he intended to limit the sexual materials to be introduced to those items that had been purchased rather than those obtained in a search. In this connection, the state announced it planned to introduce two movies, "Nasty Habits" and "Girls on F Street." The prosecutor further indicated that he would not show the movie "Cheek to Cheek," which was shown at the first trial, and defense counsel acknowledged that this change in evidence would shorten the trial by an hour and a half.

At trial, appellant interposed his objection to the showing of "Girls on F Street," saying that "it had not dawned on [him] until opening statement that 'Girls on F Street' was not in the last trial." Appellant said that allowing "Girls on F Street" to be shown would amount to amending the information. The prosecutor interjected that he understood appellant agreed to the showing of this "purchased" movie, and after appellant acknowledged he was not surprised and was aware of the movie, the trial court overruled the appellant's objection.

We have held that it is only necessary that an indictment name the offense and the party to be charged. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988); Ark.Code Ann. § 16-85-405 (1987). Defendants may be...