Hunter v. State, 44454

• Decision Date: 05 November 1987
• Docket Number: No. 44454,44454
• Citation: 257 Ga. 571,361 S.E.2d 787
• Parties: HUNTER v. The STATE.
• Court: Georgia Supreme Court

Page 787

361 S.E.2d 787

257 Ga. 571

HUNTER v. The STATE.

No. 44454.

Supreme Court of Georgia.

Nov. 5, 1987.

Harold A. Horne, Jr., Sakas & Horne, Atlanta, for Walter J. hunter.

Robert E. Wilson, Dist. Atty., J. Thomas Morgan, Asst. Dist. Atty., Decatur, for the State.

MARSHALL, Chief Justice.

The appellant was indicted under OCGA § 16-6-4 on charges of child molestation, and he was also indicted under OCGA § 16-12-103(a)(1) on charges of exhibiting to a minor a motion picture depicting sexually explicit nudity and sexual conduct harmful to minors. The jury was unable to reach a unanimous verdict on the child-molestation charge, and a mistrial was declared with respect thereto. However, the appellant was convicted of the other charge. He appeals his conviction to this court, challenging the constitutionality of the statutory provisions under which he was convicted. For reasons which follow, we reverse.

1. OCGA §§ 16-12-102, 16-12-103, and 16-12-104 were amended by Section 3 of Georgia Laws 1984, pp. 1495, 1496 et seq. See American Booksellers Assn., Inc. v. Webb, 590 F.Supp. 677, 688 (N.D.Ga.1984) (referred to as Webb I ). See also American Booksellers Assn., Inc. v. Webb, 744 F.2d 784 (11th Cir.1984); American Booksellers Assn., Inc. v. Webb, 254 Ga. 399, 329 S.E.2d 495 (1985); American Booksellers Assn., Inc. v. Webb, 643 F.Supp. 1546 (N.D.Ga.1986) (referred to as Webb II ).

As recognized in Webb I, 590 F.Supp., supra, at p. 687, § 3 of the 1984 Act is divisible into five component parts.

(1) OCGA § 16-12-103(a), ¹ which, as previously stated, is the statutory provision under which the appellant in the present case was convicted, is the distribution component, and it prohibits any person from selling or otherwise furnishing to a minor any variously described materials that are sexually explicit and "harmful to minors."

(2) OCGA § 16-12-103(b) ² is the exhibition component, and this provision generally prohibits any person from allowing a minor to enter premises whereon there is exhibited a motion picture or other presentation which is sexually explicit and "harmful to minors."

(3) OCGA § 16-12-103(e) ³ is the display component, and this provision makes it unlawful for any person to knowingly display in public at newsstands or any other business or commercial establishment or at any other public place frequented by minors, any variously described written or pictorial material which is sexually explicit and "harmful to minors."

(4) OCGA § 16-12-104 ⁴ is the exemption component, and this provision states that § 16-12-103 shall not apply to any public library or any other library operated as part of any school, college, or university.

(5) OCGA § 16-12-102 ⁵ is the definition component, and this provision defines, among other things, the term "harmful to minors," within the meaning of the prior statutory components.

2. As amended by the 1984 Act, § 16-12-103(a), the distribution component, provides that "[i]t shall be unlawful for any person knowingly to sell or loan for monetary consideration or otherwise furnish or disseminate to a minor: (1) Any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors."

Under OCGA § 16-12-102(1), the definition component, " 'harmful to minors' means that quality of description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it: (A) Taken as a whole, predominately appeals to the prurient, shameful, or morbid interest of minors; (B) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and (C) Is, when taken as a whole, lacking in serious literary, artistic, political, or scientific value for minors."

The foregoing definition of "harmful to minors" "is based directly on the definition contained in the New York statute upheld by the Supreme Court in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), as modified in light of the three-part test of obscenity announced by the Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973)" (footnote omitted). Webb I, supra, 590 F.Supp. at p. 688. Under the Miller obscenity test, a work may not be judged obscene unless the work: (1) Taken as a whole, appeals to prurient interest in sex; (2) Portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) Taken as a whole, does not have serious literary, artistic, political, or scientific value. See Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987). The first and third prongs of the Miller test require the work to be viewed "as a whole," whereas the second prong does not. American Booksellers Assn., Inc. v. Webb, 590 F.Supp., supra, at p. 688. And the first and second prongs of the Miller test are decided with reference to "contemporary community standards," whereas the third prong is decided with reference to whether an "ordinary member of any given community" would find serious value in the allegedly obscene material. Pope v. Illinois, supra.

The first and third prongs of § 16-12-102(1) require the work to be viewed "as a whole," and the second prong requires the adult community to be viewed "as a whole" in determining standards in the adult community with respect to what is suitable for minors.

3. In this case, the § 16-12-103(a)(1) charge against the appellant was based on his exhibiting to a minor an allegedly pornographic motion picture. The jury was allowed to view a videotape of this motion picture, which was found during a search of the appellant's home. However, at some point during the showing of this film, defense counsel stipulated that the film was sexually explicit, and the remainder of the film was not shown to the jury.

As a result of this truncation of the jury's view of the film, we conclude that there was insufficient evidence under which the jury could have found the appellant guilty of this charge. As previously stated, in order to be adjudged obscene under § 16-12-103(a)(1), the work must depict sexually explicit nudity and be harmful to minors; in order to be adjudged harmful to minors, the work must meet the three-part test set out in subsections (A), (B), and (C) of § 16-12-102 (1); in order to determine whether the work meets the tests set out in subsections (A) and (C), the work must be viewed "as a whole." Accord, New York v. P.J. Video, Inc., 475 U.S. 868, 106 S.Ct. 1610, 89 L.Ed.2d 871 (1986).

4. In view of the foregoing holding, it becomes necessary to decide whether, as argued by appellant, any retrial of him is barred under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), which essentially holds that the Double Jeopardy Clause prohibits retrial of a criminal defendant where the conviction has been reversed for evidentiary insufficiency, although retrial is permitted where reversal of the conviction is predicated on trial error.

Here, the prosecution's failure to present to the jury sufficient evidence to support the conviction resulted from an erroneous ruling of the trial court, which ruling was invoked by the appellant. Under these circumstances, we are of the opinion that, under Burks, the appellant has waived his right to obtain a judgment of acquittal due to evidentiary insufficiency. Consequently, we hold that a new trial is not barred by the Double Jeopardy Clause.

5. Next, the appellant advances a two-pronged attack on the constitutionality of OCGA § 16-12-103(a).

(a) First, the appellant argues that the state's application of this statute to him in this case invades his constitutionally protected right of privacy, under the Due Process Clause of the Fourteenth Amendment, with respect to personal decisions concerning family relationships, child rearing, and education.

As authority, he cites the line of United States Supreme Court decisions exemplified by Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). However, the appellant is not a parent of the alleged victim. And, unlike Pierce and Carey, he has no economic or non-economic relationship ⁶ with those third parties, i.e., parents, whose rights he seeks to vindicate. See Division 6(a), infra. Consequently, we conclude that he lacks standing to assert this claim. Accord, Webb I, 590 F.Supp., supra, at pp. 689-690.

(b) Citing Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), the appellant also argues that the application of OCGA § 16-12-103(a) to him in this case constitutes an unconstitutional intrusion into his right of personal privacy within the private and non-commercial boundaries of his home.

As stated by the appellant, Stanley holds that, "[a] State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." 394 U.S. at p. 565, 89 S.Ct. at p. 1248. We conclude that Stanley is inapposite, because, unlike Stanley, the present case does not involve "a man, sitting alone in his own house." Id. Nor does it involve "mere possession [of obscene material] by the individual in the privacy of his home." Id. at p. 568, 89 S.Ct. at p. 1250. Rather, it involves the exhibition of such material to a child, and antisocial conduct engaged in by the appellant in connection therewith. Consequently, Stanley is distinguishable, and Ginsberg is controlling. Id. at p. 567, 89 S.Ct. at p. 1249.

6. Finally, the appellant contends that he cannot now be prosecuted for violating OCGA § 16-12-103(a), inasmuch as this statutory provision has been held to be...