State v. Brenan

• Decision Date: 16 May 2000
• Docket Number: No. 99-KA-2291.,99-KA-2291.
• Citation: 772 So.2d 64
• Parties: STATE of Louisiana v. Christine D. BRENAN.
• Court: Louisiana Supreme Court

772 So.2d 64

STATE of Louisiana v. Christine D. BRENAN.

No. 99-KA-2291.

Supreme Court of Louisiana.

May 16, 2000.

Richard P. Ieyoub, Attorney General, Walter P. Reed, District Attorney, Dorothy Ann Pendergast, Metairie, Counsel for Applicant.

Doug Allen, Jr., Jefferson, Counsel for Respondent.

JOHNSON, J.¹

The fundamental question presented in this case is whether Louisiana Revised Statute § 14:106.1, which bans the promotion of obscene devices, is constitutional. The defendant, Ms. Christine Brenan, was charged by bill of information with two counts of promotion of obscene devices in violation of La. R.S. § 14:106.1. She was convicted as charged and appealed, arguing that the statute was unconstitutional and violated the Fourteenth Amendment due process clause. The First Circuit Court of Appeal reversed the decision of the trial court finding that the obscene device statute lacked a rational relationship to a legitimate state interest and, therefore, violated the Fourteenth Amendment due process clause. After review of the record, legislative history, and applicable law, we affirm for the following reasons.

FACTS AND PROCEDURAL HISTORY

Ms. Christine Brenan was arrested on three occasions for selling obscene devices at her dance-wear boutique, The Dance Box. The first two arrests by Mandeville Police occurred in July and October of 1996 when the defendant's business was located in a Mandeville shopping center. Shortly thereafter, the defendant lost her lease and moved the business to another shopping center outside of the Mandeville city limits. In September of 1997, Ms. Brenan was arrested again by St. Tammany Parish sheriffs deputies for selling obscene devices at her new location. The devices were located in an area of the boutique separated by latticework and labeled "For adults only." Most of the items seized were in the form of human genitals or packaged explicitly as a means to stimulate the male or female genitals. One device, however, the Mini Mite Massager, is neither shaped in the form of genitals nor packaged as a sexual device, but promoted as an instrumentality for stimulating scalp and muscle massage. Other devices are designed for stimulation of the anus. All of the devices, which were purchased by undercover police officers or seized pursuant to the defendant's arrest, were introduced into evidence at trial.

The defendant pled not guilty to the charges and filed a motion to quash the indictment on constitutional grounds. The trial court denied defendant's motion to quash and a six person jury found Ms. Brenan guilty as charged. The trial court sentenced her to two years in prison at hard labor for each count with sentences to run concurrently. The sentences were suspended and Ms. Brenan was placed on probation for five years, and fined $1,500 for each count. On appeal, defendant raised eight assignments of error. The court of appeals examined assignments of error numbers seven and eight. In assignment of error number 7, the defendant alleged that the statute was "unconstitutional on its face and as applied because it violates the defendant's property rights." In assignment of error number 8, the defendant further alleged that the statute "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 privacy rights retained by the people."

The First Circuit Court of Appeal reversed the defendant's convictions concluding that La. R.S. § 14:106.1 was unconstitutional. State v. Brenan, 98-2368 (La. App. 1st Cir.7/1/99), 739 So.2d 368. In finding the statute unconstitutional, the court of appeal adopted the rationale of a federal district court determining the constitutionality of Alabama's obscene device statute. See Williams v. Pryor, 41 F.Supp.2d 1257 (N.D.Al.1999). The federal court found that the Alabama obscene device statute supported no reasonable, rational relationship to a legitimate state interest and was therefore, in violation of the Fourteenth Amendment due process clause. Id. at 1295. The federal court declined to apply a heightened scrutiny analysis, finding that the right to privacy did not extend to protect the promotion of sexual devices. Id. The First Circuit Court of Appeal followed suit, recognizing that the state's legitimate interest in the protection of minors and unconsenting adults was within the scope of its police power. In testing the statute's reasonableness, the appellate court found that the statute swept too broadly when the same result could have been accomplished through less restrictive means. Brenan, 98-2368, pp. 6-7, 739 So.2d at 372. Having resolved the constitutional issue by finding the statute "overly broad" and violative of the Fourteenth Amendment due process clause, the court of appeal pretermitted the other six assignments of error.² We granted the State's writ application and docketed the matter as an appeal pursuant to La. Const. art. 5, § 5 to determine whether La. R.S. § 14:106.1 is constitutional. State v. Brenan, 99-2291 (La.9/24/99), 750 So.2d 962.

ANALYSIS

La. R.S. § 14:106.1, which criminalizes the promotion or wholesale promotion of obscene devices, provides in pertinent part:

A. For the purposes of this Section, the following definitions shall apply unless the context clearly requires otherwise:

(1) "Obscene device" means a device, including an artificial penis or artificial vagina, which is designed or marketed as useful primarily for the stimulation of human genital organs.

(2) "Promote" means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, distribute, circulate, disseminate, present, or exhibit, including the offer or agreement to do any of these things, for the purpose of sale or resale.

B. No person shall knowingly and intentionally promote an obscene device.

It is well established that statutes are presumed to be valid, and the constitutionality of a statute should be upheld whenever possible. State v. Griffin, 495 So.2d 1306, 1308 (La.1986) (citations omitted). Because a state statute is presumed constitutional, the party challenging the statute bears the burden of proving its unconstitutionality. The attack will fail if the court determines that a reasonable relationship between the law and the promotion or protection of a public good, such as health, safety or welfare exists. Theriot v. Terrebonne Parish Police Jury, 436 So.2d 515 (La.1983). Thus, we analyze La. R.S. § 14:106.1 within these guidelines.

La. R.S. § 14:106.1 is part of the larger statutory scheme set forth in La. R.S. § 14:106, which defines the crime of obscenity, describes its applicability, and provides for penalties therefrom. State v. Johnson, 343 So.2d 705 (La.1977). Although difficult to determine with particularity, obscenity is defined as those things that have a predominant appeal to one's prurient interests or those things in which a shameful or morbid interest in nudity, sex or excretion is expressed. Ward v. Illinois, 431 U.S. 767, 769, 97 S.Ct. 2085, 2087, 52 L.Ed.2d 738 (1977). Obscenity is not synonymous with sex. Sex is described as a "great and mysterious motive force in human life, [which] has indisputably been a subject of absorbing interest to mankind through the ages." Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Similarly, prurient interests should not be equated with normal, healthy interests in sex. Williams, 41 F.Supp.2d 1292 (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498, 105 S.Ct. 2794, 2799, 86 L.Ed. 394(1985)). Sex is a natural function. As natural as breathing. It is a normal urge present in all human beings and other successful life forms, and it is essential to the propagation of the species.

The United States Supreme Court, while reviewing the constitutionality of New York's and California's obscenity statutes, determined that obscenity is to be defined by community standards. Roth, 354 U.S. at 489,77 S.Ct. at 1311. This Court has also concluded that a juror must be permitted "to draw on knowledge of the community or vicinage from which he comes in deciding what conclusion `the average person applying contemporary community standards' would reach in a given case." State v. Amato, 343 So.2d 698, 702 (La.1977) (citing Hamling v. United States, 418 U.S. 87, 105, 94 S.Ct. 2887, 2901, 41 L.Ed.2d 590(1974)). Under both federal and state laws, obscenity must be defined by "contemporary community standards" in order to withstand attacks of constitutional infirmity. Jenkins v. Georgia, 418 U.S. 153, 157, 94 S.Ct. 2750, 2753, 41 L.Ed.2d 642 (1974). Without a requirement for "community standards," due process is violated.

In Roth, obscenity was equated with prurience and those materials found to be obscene were not entitled to First Amendment protection. 354 U.S. at 498, 77 S.Ct. at 1327. Nine years later, the decision in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), established a much more demanding three-part definition of obscenity, a definition that was in turn modified in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The basic difference between the Memoirs test and the Miller test was that Memoirs required that in order to be judged obscene, a work must be "utterly without redeeming social value," while Miller settled on the formulation, "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Memoirs, 383 U.S. at 418, 86 S.Ct. at 977; Miller, 413 U.S. at 24, 93 S.Ct. at 2614. Today, the Miller guidelines are well established for identifying obscenity, and include:

(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;

(b) whether the work depicts

...