Morrison v. State

• Decision Date: 03 September 1980
• Docket Number: No. F-77-399,F-77-399
• Citation: 619 P.2d 203
• Parties: Floyd Lee MORRISON, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 203

619 P.2d 203

Floyd Lee MORRISON, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-399.

Court of Criminal Appeals of Oklahoma.

Sept. 3, 1980.

Rehearing Denied Nov. 10, 1980.

An appeal from the District Court, Tulsa County; Richard V. armstrong, judge.

FLOYD LEE MORRISON, appellant, was convicted of the offense of Selling a Moving Picture Depicting Acts of Sexual Intercourse or Unnatural Copulation Which is Obscene; was sentenced to ten (10) years' imprisonment and assessed a fine of Twenty-Five Thousand Dollars ($25,000.00), with the last seven (7) years and Twenty-Two Thousand Dollars ($22,000.00) suspended, and appeals. Judgment and sentence MODIFIED to three years to serve with an additional two years suspended, and a fine of Three Thousand Dollars ($3,000.00) and otherwise AFFIRMED.

Don E. Gasaway, and Mac D. Finlayson, Woodson & Gasaway, Tulsa, for appellant.

Larry Derryberry, Atty. Gen., Duane N. Rasmussen, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Judge:

Floyd Lee Morrison appeals his conviction following a jury trial on a charge of Unlawful Sale of Movies Showing Acts of Sexual Intercourse or Unnatural Copulation, in violation of 21 O.S.1971, § 1040.51, in the Tulsa County District Court, Case No. CRF-76-101. Punishment was set at ten (10) years imprisonment and a fine of Twenty-Five Thousand Dollars $25,000.00), with the last seven (7) years and Twenty-Two Thousand Dollars ($22,000.00) suspended.

I

On appeal, the appellant asserts thirteen assignments of error, several of which are premised on propositions rejected by this Court in the recent case of Hunt v. State, Okl.Cr., 601 P.2d 464 (1979). These include the following:

Assignment of error No. 1: that 21 O.S.1971, § 1040.51, is unconstitutionally vague and overbroad. However, this provision implicitly incorporates each of the standards set out by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); and as so construed may be constitutionally applied. 601 P.2d at 466. ¹

Assignment of error No. 2: that the amended information which charged the offense in the language of the statute, with an additional allegation that the film was obscene, failed to state a cause of action since it did not further allege the Miller standards. However, the term 'obscene' is a word of art sufficiently conveying the gravamen of the charge and further allegations under the Miller standards are unnecessary. 601 P.2d at 466.

Assignment of error No. 3: that a magazine purchased at the same time as the film may not provide a basis for the appellant's subsequent arrest, and the film should have been suppressed. Even though the film was not viewed by the authorities prior to the arrest of appellant and his employee, other material purchased simultaneously and viewed by the officers may provide a basis for subsequent warrantless arrest. 601 P.2d at 466, 467. Moreover, the appellant's arrest was pursuant to an arrest warrant, which warrant is not challenged on appeal, and the magazine and film were acquired by purchase, not search and seizure.

Assignments of error Nos. 4 and 5: that the evidence was insufficient in that the State offered no testimony that the film was obscene, and the trial court's approval of this procedure impermissibly shifted the burden of proof to the appellant; and, that the burden shifted back to the State upon the production of defense testimony as to the level of contemporary community standards and was not satisfied by the prosecution. However, by introducing a film which depicted sexual intercourse, cunnilingus and fellatio, the State established a prima facie case, and special expert testimony was unnecessary. 601 P.2d at 467. See also Hildahl v. State, Okl.Cr., 536 P.2d 1292 (1975).

Assignment of error No. 7: that the punishment authorized by 21 O.S.1971, § 1040.51, is excessive and amounts to unconstitutionally cruel and unusual punishment, especially viewed against punishments prescribed by law for certain other crimes or for the same crime in other jurisdictions. However, the punishment prescribed by Section 1040.51--a maximum of fifteen (15) years' imprisonment and/or a fine of Twenty-Five Thousand Dollars ($25,000.00)--expresses the Oklahoma Legislature's great concern with the obscenity traffic and serves a valid legislative purpose. Arguments based on the relative severity of the range of punishment provided are best addressed to the Legislature, not the courts. 601 P.2d at 467.

II

The appellant contends under his sixth assignment of error that the verdict is contrary to the law and the evidence in that 21 O.S.1971, § 172, should not be extended to an employer for an unlawful sale made by an employee.

Title 21 O.S.1971, § 172, provides as follows:

'Principals defined.--All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.'

This Court stated in Scroggs v. State, 65 Okl.Cr. 293, 85 P.2d 764 (1938), in the second paragraph of the Syllabus, the following:

'Where an attempt is made to convict a defendant and to hold him criminally responsible for the acts of his employee, it must be clearly shown that such act was reasonably within the scope of the agent's employment, or was an act done within the course of the principal's business.'

See also Simpson v. State, 14 Okl.Cr. 484, 173 P. 529 (1918), and United States v. Hall, 424 F.Supp. 508 (W.D.Okl.1975), affirmed, 536 F.2d 313 (10th Cir. 1976), cert. denied, 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285 (1976).

The appellant's liability under this test is clear. As noted in the next assignment of error, the appellant was the owner of the establishment, carefully selected the film at issue and others for viewing and sale in the store, was aware that these films were being sold in the store up to the very day of the arrest of his clerk, and was personally involved in making possible the sale involved here. This assignment of error is without merit.

The appellant contends in his eighth assignment of error that the trial court erred in refusing to give a jury instruction on the scienter element of the charged offense under 21 O.S.1971, § 1040.51. We agree that the trial court erred, but we are persuaded that the error was harmless, given the overwhelming evidence of scienter in this record.

Prosecution witness Carla Wood testified that she told the appellant over the telephone that she proposed to purchase 'hard core' materials. The appellant denied this from the witness stand. However, the appellant gave the following testimony: from July, 1975, until September, 1976, the appellant displayed the film underlying the instant charge and similar films on coin-operated machines at his place of business; the appellant had carefully selected these films by visiting other adult book stores in the Tulsa area and consulting the proprietors. On September 30, 1976, police raided his establishment, whereupon he stopped showing those films in the viewing machines. However, he continued to sell these types of films--the film at issue was one of a dozen or so such films in the inventory on September 30, 1976--to patrons until January 13, 1976, when the instant events underlying this prosecution occurred, believing all the while that the films were legal. These films and other relatively expensive items were kept in the display counter and in a small storage room. After Carla Wood called him, he telephoned approval for purchases by Wood to his clerk on duty, James Shirley.

The requirement of scienter serves to prevent imposing strict or absolute liability on book and film distributors, irrespective of their knowledge of the contents of the book and even if they lack the slightest notice of the character of the items sold. See Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959).

A requirement of scienter is implicit in 21 O.S.1971, § 1040.51, and an appropriate jury instruction has been mandated by this Court. See Hanf v. State, Okl.Cr., 560 P.2d 207 (1977). However, the prosecution need only show that accused knew the nature and character of what he is selling. Hunt v. State, Okl.Cr., supra.

Here, as in Hunt, it is clear that Appellant knew the character and nature of the film sold to Carla Wood. We believe that scienter is clearly established where the owner of an establishment carefully selects the films in the store inventory, fully contemplating and intending that the items may be sold in the course of business by an employee, and communicates special permission to his employee for the particular sale of films at issue.

The appellant contends in his ninth assignment of error that the trial court erred in refusing to give an instruction to the jury outlining the appellant's theory of consent, waiver of estoppel. The appellant does not allege on appeal selective enforcement by the authorities.

The only requested defense instruction appearing to cover this theory is instruction number 13, which recites in part as follows 'That Statute here requires that the Defendants acted knowingly. This means that the State must prove, beyond a reasonable doubt, that the Defendants had guilty knowledge. In other words, the proof must show, beyond a reasonable doubt, that the Defendants knew the contents of the films were obscene as specifically prohibited.

'. . . In other words, if you find that the Defendant relied on the implied consent of commissioned law enforcement officers of the City of Tulsa and State of Oklahoma, then you find that the Defendant had no guilty knowledge and must therefore acquit.'

It is clear that the instruction is based on an erroneous premise: the State need not only show that the accused is aware of the actual character and nature of the film. See Hunt v. State, supra, 601 P.2d at 469. Therefore statements by...