Main Street Movies, Inc. v. Wellman
| Decision Date | 03 January 1997 |
| Docket Number | No. S-94-988,S-94-988 |
| Citation | 251 Neb. 367,557 N.W.2d 641 |
| Court | Nebraska Supreme Court |
| Parties | MAIN STREET MOVIES, INC., a Nebraska Corporation, Appellee, and TV Cats, Inc., et al., Intervenors-Appellees, v. Michael WELLMAN, County Attorney, Sarpy County, Nebraska, Appellee, and State of Nebraska ex rel. Don Stenberg, Attorney General, Intervenor-Appellant. |
Syllabus by the Court
1. Declaratory Judgments. An action for declaratory judgment is sui generis, and whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute.
2. Obscenity: Evidence. While a jury may ascertain the sense of the average person, applying contemporary community standards without the benefit of expert evidence, a defendant in a criminal obscenity case nonetheless has a right to introduce evidence pertaining to the community standard.
3. Rules of Evidence. Where the statutes embodying the rules of evidence apply, the admission of evidence is controlled by rule and not by judicial discretion, except where judicial discretion is a factor involved in assessing admissibility.
4. Trial: Expert Witnesses: Appeal and Error. There is no exact standard for determining when one qualifies as an expert, and a trial court's factual finding that a witness qualifies as an expert will be upheld on appeal unless clearly erroneous.
5. Expert Witnesses. Whether one qualifies as an expert depends on the factual basis or reality underlying the witness' title or claim to expertise.
6. Trial: Evidence: Records: Appeal and Error. The erroneous admission of evidence in a bench trial of a law action, including a criminal case, is not reversible error if other relevant evidence, admitted without objection or properly admitted over objection, sustains the trial court's necessary factual findings; in such case, reversal is warranted if the record shows that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through the use of erroneously admitted evidence.
Don Stenberg, Attorney General, and James H. Spears for appellant.
Michael A. Kelley and Christopher D. Jerram, of Kelley & Lehan, P.C., and Richard J. Dinsmore, Omaha, for appellee Main Street Movies and intervenors-appellees.
This declaratory judgment action brought by the plaintiff-appellee, Main Street Movies, Inc., against the defendant-appellee, Michael Wellman, County Attorney of Sarpy County, Nebraska, seeks a determination as to whether certain so-called "adult" videotaped movies, explicitly depicting a variety of sexual acts, offered for sale and rental to the public are criminally obscene. The remaining appellees, TV Cats, Inc.; Vichaty, Inc.; and Movietime, Inc., intervened as plaintiffs, and the appellant, State of Nebraska ex rel. Don Stenberg, Attorney General, intervened as a defendant. Following a bench trial, the district court entered a judgment declaring that the six movies here at issue were not criminally obscene. In challenging that ruling before the Nebraska Court of Appeals, the State asserted, among other things, that the district court erred in its evidential rulings. We thereafter granted the State's petition to bypass the Court of Appeals and now reverse the district court's judgment and remand the matter for further proceedings.
An action for declaratory judgment is sui generis, and whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute. See Donaldson v. Farm Bureau Life Ins. Co., 232 Neb. 140, 440 N.W.2d 187 (1989). As the issue here is whether the movies in question are obscene in the sense that selling or making them available for rental would violate a criminal statute, we review this matter as a criminal case at law.
The plaintiffs collectively own seven stores in Sarpy County and allege that they are engaged in the sale and rental to the public of sexually explicit, videotaped movies. Neb.Rev.Stat. § 28-813 (Reissue 1995) makes it unlawful and a Class I misdemeanor for one to, among other things, possess "with intent to sell [or] rent ... any obscene material...." This action was brought under the provisions of Neb.Rev.Stat. § 28-820 (Reissue 1995), which, among other things, permits one having a "genuine doubt" as to the obscenity of material to bring a declaratory judgment action against the chief law enforcement officer of the area in which the material is sold or rented.
In the fall of 1991, the Attorney General's office sent letters to the Sarpy County video stores, stating that the Attorney General had received a complaint about such stores distributing obscene material and that legal action would be brought against stores that continued to distribute such material. The Attorney General further encouraged Wellman to bring an action against various video stores in Sarpy County. While Wellman chose not to do so, the Attorney General was prepared to prosecute.
Neb.Rev.Stat. § 28-807(10) (Reissue 1995) provides:
Obscene shall mean (a) that an average person applying contemporary community standards would find that the work, material, conduct, or live performance taken as a whole predominantly appeals to the prurient interest or a shameful or morbid interest in nudity, sex, or excretion, (b) the work, material, conduct, or live performance depicts or describes in a patently offensive way sexual conduct specifically set out in sections 28-807 to 28-829, and (c) the work, conduct, material, or live performance taken as a whole lacks serious literary, artistic, political, or scientific value.
Neb.Rev.Stat. § 28-814(2) (Reissue 1995) declares that
the guidelines in determining whether a work, material, conduct, or live exhibition is obscene are: (a) The average person applying contemporary community standards would find the work taken as a whole goes substantially beyond contemporary limits of candor in description or presentation of such matters and predominantly appeals to the prurient, shameful, or morbid interest; (b) the work depicts in a patently offensive way sexual conduct specifically referred to in sections 28-807 to 28-829; (c) the work as a whole lacks serious literary, artistic, political, or scientific value; and (d) in applying these guidelines to the determination of whether or not the work, material, conduct or live exhibition is obscene, each element of each guideline must be established beyond a reasonable doubt.
Called as a witness by the plaintiffs, Wellman testified that he began working in the Sarpy County Attorney's office in 1975, was the chief deputy county attorney from 1977 until 1990, and has been the Sarpy County...
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