State v. Bonynge

• Decision Date: 09 January 1990
• Docket Number: No. C6-89-578,C6-89-578
• Citation: 450 N.W.2d 331
• Parties: STATE of Minnesota, Respondent, v. Robert Walter BONYNGE, Appellant.
• Court: Minnesota Court of Appeals

Page 331

450 N.W.2d 331

STATE of Minnesota, Respondent, v. Robert Walter BONYNGE, Appellant.

No. C6-89-578.

Court of Appeals of Minnesota.

Jan. 9, 1990.

Review Denied Feb. 21, 1990.

Syllabus by the Court

1. Warrant authorizing seizure of videotapes involving violations of bestiality and child pornography statutes was sufficiently particular to permit seizure of those videotapes admitted into evidence.

2. Adversary hearing prior to seizure of videotapes depicting bestiality was not required.

3. Seizure of all videotapes in appellant's home did not mandate suppression of videotapes properly seized.

4. Sexual acts with a dog, including masturbation, depicted in videotapes constitute bestiality under Minn.Stat. § 609.294 (1988).

Hubert H. Humphrey, III, Atty. Gen., Marsh J. Halberg, Edina Pros. Atty., Thomsen, Nybeck, Johnson, Bouquet, Vanvalkenburg, Ohnstead & Smith, P.A., Edina, for respondent.

Randall D.B. Tigue, Minneapolis, for appellant.

Heard, considered, and decided by WOZNIAK, C.J., and PARKER and CRIPPEN, JJ.

OPINION

WOZNIAK, Chief Judge.

Appellant challenges his conviction for one count of bestiality and four counts of aiding and abetting bestiality. Appellant argues first that the videotapes admitted into evidence were seized in violation of his first, fourth, and fourteenth amendment rights. Appellant also contends that the evidence at trial was insufficient to support his conviction of bestiality under Minn.Stat. § 609.294 (1988). We affirm.

FACTS

In June 1988, a police officer received information from a confidential, reliable informant. The informant stated that, while at appellant's residence on several occasions, the informant had observed a film depicting a sixteen-year-old girl engaged in sex with a Rottweiler dog.

The officer applied for a search warrant for appellant's residence. The affidavit accompanying the application reiterated the information received from the informant and stated that the officer sought the search warrant "to seize any film involving child pornography and bestiality." The warrant, dated June 15, 1988, permitted seizure of the following:

Pornography films involving female juveniles and a Rottweiler dog and any other contraban [sic] which would violate the new Mn. State Statute governing the pornography laws. Any filming equipment and duplicating equipment.

On June 16, 1988, the police executed the search warrant at appellant's residence. A police lieutenant observed the Rottweiler dog on the premises and numerous video cassettes, 8 millimeter movies, photographs, and magazines depicting sexual scenes involving young females, possibly juveniles. The officers seized hundreds of films and photographs, including several commercial videotapes of popular motion pictures. The officer stated that it was his experience that "obscene material is planted in the middle of what appears to be a commercial tape to make it difficult to locate."

In July 1988, appellant moved to suppress and return the videotapes seized pursuant to the search warrant. The trial court denied the motion, holding that the warrant was not deficient for want of particularity. The court concluded that "the purpose of the search was to locate material violative of the Minnesota Statutes governing the production and distribution of child pornography and bestiality." The trial court found that language regarding the obscenity statute was included to ensure that if such material were incidentally seized, it would not be subject to suppression. This was appealed.

Prior to this court's ruling on the appeal, appellant was charged with five counts of gross misdemeanor bestiality in violation of Minn.Stat. § 609.294 (1988). This court then dismissed the appeal on October 18, 1988 because the trial court's order was not appealable. See Bonynge v. City of Minneapolis 30 N.W.2d 265 (Minn.Ct.App.1988).

In January 1989, the trial court denied appellant's motion to dismiss the charges against him. Among other things, the trial court held that:

acts of masturbating a dog, acts of performing oral sex on a dog, and vaginal penetration of a human being by a dog fall within the ambit of "carnally know[ing]" an animal under Minn.Stat. § 609.294.

On February 14, 1989, the matter was tried to the court on stipulated facts. At that time, appellant renewed his motion to suppress and the court denied the motion. Among other things, the parties stipulated to the following facts:

7. The videotapes were filmed by the Defendant at the Defendant's home * * *.

8. The voice heard on the videotapes, other than that of the female individuals, is that of the Defendant.

* * * * * *

12. That all of the videotapes show sexual penetration of the dog's penis into the women's vaginas, the women sucking the dog's penis and masturbation of the dog's penis by the women.

13. In the videotape, GVL-200, the Defendant masturbates the dog's penis for the dog to have an erection.

* * * * * *

16. All females depicted in the videotapes in question were age eighteen or older at the time the videotapes were made.

Appellant reserved the right to challenge the admissibility of the videotapes and the applicability of Minn.Stat. § 609.294 to the actions committed by himself and the women. The trial court adopted the stipulation and found appellant guilty of all five counts.

ISSUES

1. Were the videotapes seized in violation of appellant's first, fourth, and fourteenth amendment rights?

a. Was the warrant of insufficient particularity to authorize seizure of the videotapes?

b. Was the warrant issued without a sufficient showing of probable cause?

c. Was the warrant invalid because appellant was not given a prior adversary hearing?

d. Does the action of the police in seizing every videotape and film at appellant's residence require suppression of the videotapes in evidence here?

2. Is the evidence sufficient to sustain appellant's conviction?

ANALYSIS

1. A trial court's admission of physical evidence will be upheld unless it constitutes an abuse of discretion. State v. Daniels, 361 N.W.2d 819, 827 (Minn.1985). A defendant claiming that the trial court erred in admitting evidence has the burden of showing both the error and the prejudice resulting from the error. State v. Darveaux, 318 N.W.2d 44, 48 (Minn.1982) (citation omitted).

Appellant claims that the seizure of the videotapes violated his first, fourth, and fourteenth amendment rights. The fourth amendment gives individuals the right to be free from unreasonable search and seizure and declares that warrants shall "particularly describ[e] the place to be searched and the person or things to be seized." U.S. Const. amend. IV; Minn. Const. art. I, § 10. The particularity requirement was intended to invalidate general searches and ensure that "nothing is left to the discretion of the officer executing the warrant." Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927).

A special situation exists when books, films, or photographs are to be seized. Seizure of these materials on the basis of content implicates first amendment considerations. New York v. P.J. Video, Inc., 475 U.S. 868, 873, 106 S.Ct. 1610, 1614, 89 L.Ed.2d 871 (1986). While obscenity and child pornography fall outside the protection of the first amendment, the United States Supreme Court has set standards for regulating them. See Miller v. California, 413 U.S. 15, 23-24, 93 S.Ct. 2607, 2614-2615, 37 L.Ed.2d 419 (1973); New York v. Ferber, 458 U.S. 747, 763-64, 102 S.Ct. 3348, 3357-58, 73 L.Ed.2d 1113 (1982). These standards are codified in Minn.Stat. § 617.241, subd. 1 (1988) and Minn.Stat. §§ 617.246-.247 (1988).

Generally, the difference in the constitutional standards for regulating obscenity and child pornography dictates the scope of permissible seizures under the fourth amendment and the particularity with which a warrant must describe the materials to be seized. The procedure required of law enforcement officials before obscenity may be seized must be designed to ensure that the magistrate can "focus searchingly on the question of obscenity." Marcus v. Search Warrants of Property, 367 U.S. 717, 732, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127 (1961). Consequently, a reference merely to "obscene materials" in a warrant is insufficient, since warrants may not issue based on the conclusory assertions of a police officer that the materials are obscene. Id.; Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637, 88 S.Ct. 2103, 2104, 20 L.Ed.2d 1313 (1968).

On the other hand, references to the portrayal of sexual conduct specifically defined as child pornography require no expert training or experience on the part of the officer and are sufficient to limit the officer's discretion at the time of the seizure. See United States v. Smith, 795 F.2d 841, 848 n. 7 (9th Cir.1986), cert. denied, 481 U.S. 1032, 107 S.Ct. 1964, 95 L.Ed.2d 535 (1987); United States v. Hurt, 795 F.2d 765, 773 (9th Cir.1986), as amended by 808 F.2d 707, 708 (9th Cir.1987), cert. denied, 484 U.S. 816, 108 S.Ct. 69, 98 L.Ed.2d 33 (1987). Therefore, what is constitutionally acceptable for child pornography warrants may be insufficient to authorize seizure of obscenity.

a. Appellant contends that the section of the search warrant authorizing seizure of "pornography films involving female juveniles and a Rotweiller dog" only permitted the police to seize films which contained both juveniles and dogs. Since the parties stipulated that none of the tapes depict juveniles, appellant asserts that the tapes were not properly admitted into evidence.

There are two plausible interpretations of the warrant's authorization: either the warrant permits seizure of pornography films containing both juveniles and a dog within the same film or it authorizes seizure of pornography films containing either juveniles or dogs. Because either construction is reasonable, the trial court did not abuse its discretion in choosing the broader of the two...