State v. Brenan

• Decision Date: 01 July 1999
• Docket Number: No. 98 KA 2368.,98 KA 2368.
• Citation: 739 So.2d 368
• Parties: STATE of Louisiana v. Christine D. BRENAN.
• Court: Court of Appeal of Louisiana — District of US

739 So.2d 368

STATE of Louisiana v. Christine D. BRENAN.

No. 98 KA 2368.

Court of Appeal of Louisiana, First Circuit.

July 1, 1999.

Writ Granted September 24, 1999.

Walter P. Reed, District Attorney, Covington, Dorothy Pendergast, Metairie, for Appellee State of Louisiana.

Douglas A. Allen, Jefferson, for Defendant/Appellant Christine D. Brenan.

Before: CARTER, C.J., SHORTESS, and WHIPPLE, JJ.

CARTER, C.J.

The defendant, Christine D. Brenan, was charged by bill of information with two counts¹ of promotion of obscene devices, in violation of LSA-R.S. 14:106.1. She pled not guilty and filed a motion to quash the statute as unconstitutional. After a hearing, the trial court denied the motion to quash. After trial by jury, the defendant was found guilty as charged. For each conviction, she received a sentence of two years at hard labor and a $1,500 fine. The trial court ordered the fines and sentences to run concurrently, suspended them, and placed her on probation for five years.

The defendant has appealed, alleging eight assignments of error, as follows:

1. The trial court erred when it declined to find the statute unconstitutional on its face because said statute does not require the trier of fact to apply the rule of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

2. The trial court erred when it refused to permit defense counsel to question prospective jurors about their views of contemporary community standards, prurient interests, patently offensive sexual conduct, or redeeming literary, artistic, political, scientific, or social value, and the privacy interests attendant thereto.

3. The trial court erred when it ruled that evidence required by Miller could not be presented to the jury for consideration because it was irrelevant.

4. The trial court erred when it refused to give an instruction to the jury requiring them to follow the rule in Miller, and by refusing to let counsel argue the Miller standards in opening and closing arguments.

5. The trial court erred when it declined to find the statute unconstitutional on its face and as applied because said statute is vague and overly broad.

6. The trial court erred when it permitted the State to introduce evidence which was not in violation of the statute but which was highly prejudicial and irrelevant.

7. The trial court erred when it declined to find the statute unconstitutional on its face and as applied because it violates the defendant's property rights.

8. The trial court erred when it declined to find the statute unconstitutional on its face and as applied because it violates the privacy rights of the defendant and her customers under Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and its progeny, and privacy rights as guaranteed by Article 1, § 5, of the Louisiana Constitution, and other rights retained by the people.

FACTS

On three separate occasions between January 1, 1996, and September 2, 1997, the defendant was arrested for selling obscene devices at her place of business, The Dance Box. The first two arrests occurred in July and October of 1996, when the defendant's business was located in a shopping center in Mandeville, Louisiana. On both occasions, the Mandeville Police seized items they believed to be obscene under the statute that were offered for sale in the store. These items were in a separate area of the store separated by latticework and labeled as being for adults only.

Sometime thereafter, the defendant lost her lease and moved the business to another shopping center located just outside the Mandeville city limits. On September 2, 1997, the defendant was again arrested for selling obscene devices at the new location, this time by St. Tammany Parish Sheriffs deputies, and again items offered for sale in this store were seized.

At the trial, the Mandeville City Attorney and several law enforcement officers testified about items observed in, and seized from, the defendant's two stores and about her arrests for these violations of the statute. The State also introduced into evidence the numerous items purchased by undercover officers or seized from these stores in conjunction with the defendant's arrests.

The defendant described her business as a "family woman's oriented boutique" and explained that it sold adult and children's dancewear, costumes, tights, etc., as well as lingerie, sexual novelty items, and adult toys. She testified that her business did not sell pornographic videos or magazines, but she offered the adult items as an alternative to traveling into the French Quarter or Jefferson Parish "for women who were afraid to go into high risk areas, low rent areas that did not feel comfortable alone, though they wanted the product ...." The defendant testified that children were not allowed in the adult section of the store and that her employees had instructions to ask for identification to establish age. She indicated that she had difficulty understanding which devices were prohibited by the statute and which ones were not and that she had received many conflicting views on the subject.

ASSIGNMENTS OF ERROR NOS. SEVEN AND EIGHT:

In assignment of error number seven, the defendant contends that the trial court erred in denying the motion to quash on the basis that the statute violates her property rights. Specifically, noting that obscene devices can be owned, used, possessed, even purchased, she contends that a prohibition on the sale of these devices is an unreasonable restriction on selling one's property and/or engaging in business. In assignment of error number eight, the defendant contends that the trial court erred in denying the motion to quash on the basis that the statute unconstitutionally interferes with the right to privacy.

The defendant's contention that she should be free to sell her private property, which is otherwise not illegal to own or possess and is not classified as contraband, is derived mainly from LSA-Const. art. I, § 4, which provides in pertinent part:

Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.

* * * * * *

Personal effects shall never be taken. But the following property may be forfeited and disposed of in a civil proceeding, as provided by law: contraband drugs; property derived in whole or in part from contraband drugs; property used in the distribution, transfer, sale, felony possession, manufacture, or transportation of contraband drugs; property furnished or intended to be furnished in exchange for contraband drugs; property used or intended to be used to facilitate any of the above conduct; or other property because the above described property has been rendered unavailable.

The defendant's contention that the statute constitutes an invasion of the right to privacy is based upon both federal constitutional law and the right to privacy guaranteed Louisiana citizens in LSA-Const. art. I, § 5, which provides:

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

Individuals are protected from incursions by the State into certain areas of their lives by the Fourteenth Amendment of the United States Constitution, and a statute would be overbroad and, thus, constitutionally defective, if it extends State criminal authority beyond the proper reach of government into one of these protected areas. In order for the principle of overbreadth to apply, a constitutionally protected right must be abridged by the prosecution. State v. Griffin, 495 So.2d 1306, 1309-10 (La.1986).

Initially, we note that several other states have considered the constitutionality of similar statutes, with conflicting conclusions. Obscene devices statutes have withstood constitutional attacks under various grounds in Georgia (Sewell v. State of Georgia, 1238 Ga. 495, 233 S.E.2d 187 (1977), appeal dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978)) and Texas (Regalado v. State of Texas, 872 S.W.2d 7 (Tex.App.), cert. denied, 513 U.S. 871, 115 S.Ct. 194, 130 L.Ed.2d 126 (1994); Yorko v. State of Texas, 690 S.W.2d 260 (Tex.Crim.App.1985)). In Yorko, the Texas Court of Criminal Appeals found their statute to be a legitimate exercise of state police power, justified under the rationale of protecting the societal interest in order and morality. 690 S.W.2d at 266.

On the other hand, the Supreme Courts of Kansas (State of Kansas v. Hughes, 246 Kan. 607, 792 P.2d 1023 (1990)), and Colorado (People ex rel. Tooley v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348 (Colo.1985)) have struck down their obscene devices statutes on constitutional grounds of overbreadth and violation of privacy rights.

Recently, in Williams v. Pryor, 41 F.Supp.2d 1257 (N.D.A1.1999), a federal district judge issued a permanent injunction against the enforcement of an obscene devices statute in Alabama after determining that it lacked a reasonable, rational relationship to a legitimate state interest and, therefore, violated the Fourteenth Amendment Due Process Clause. For the reasons which follow, we agree with the rationale of Williams v. Pryor and likewise find the instant statute lacks a reasonable, rational relationship to a legitimate state interest.

Police power is the power of a governmental body to regulate reasonably the actions of its individual citizens in order to protect or promote the public health,...