State v. Canal, No. 8-324/07-1051 (Iowa App. 5/14/2008), 8-324/07-1051

• Decision Date: 14 May 2008
• Docket Number: No. 8-324/07-1051,8-324/07-1051
• Parties: STATE OF IOWA, Plaintiff-Appellee, v. JORGE CANAL, JR., Defendant-Appellant.
• Court: Iowa Court of Appeals

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STATE OF IOWA, Plaintiff-Appellee, v. JORGE CANAL, JR., Defendant-Appellant.

No. 8-324/07-1051

Court of Appeals of Iowa.

Filed May 14, 2008

Appeal from the Iowa District Court for Dallas County, Virginia Cobb, Judge.

Defendant appeals his conviction for disseminating obscene material to a minor.

AFFIRMED.

Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant Attorney General, Wayne Reisetter, County Attorney, and Sarah Pettinger, Assistant County Attorney, for appellee.

Considered by Miller, P.J., and Vaitheswaran and Eisenhauer, JJ.

EISENHAUER, J.

After a jury trial, Jorge Canal Jr. was found guilty of dissemination and exhibition of obscene material to a minor in violation of Iowa Code section 728.2 (2005).¹ On appeal he argues the photograph sent to the minor was not obscene and argues his counsel was ineffective. We affirm.

Canal sent three pictures to a fourteen-year-old girl's e-mail from his cell phone. One picture included a close-up photograph of his erect penis. Additionally, one e-mail included the message header, "I Love You." Canal argues the evidence was insufficient to support his conviction because the photograph was nudity depicting a normal biological occurrence and is not obscene.²

We review challenges to the sufficiency of the evidence supporting a guilty verdict for correction of errors at law. State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003). We will uphold a verdict if substantial record evidence supports it. Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id. We review the evidence in the light most favorable to the State. Id.

Iowa regulates obscene materials "on the basis they are unsuitable for minors." State v. Robinson, 618 N.W.2d 306, 316 (Iowa 2000). Because the State has an interest in preventing the distribution of objectionable material to children, the concept of obscenity varies according to whether the material is directed towards adults or towards children. Ginsberg v. New York, 390 U.S. 629, 636, 88 S. Ct. 1274, 1278-79, 20 L. Ed. 2d 195, 202 (1968). Obscene material is defined in Iowa Code section 728.1(5):

"Obscene material" is any material depicting . . . the genitals . . . which the average person, taking the material as a whole and applying contemporary community standards with respect to what is suitable material for minors, would find appeals to the prurient interest and is patently offensive; and the material, taken as a whole, lacks serious literary, scientific, political or artistic value.

This statutory language was incorporated into jury instruction number eighteen, which also explained: "The definition of obscenity includes the term `prurient interest.' Prurient interest is defined as shameful or morbid interest in nudity, sex, or excretion."

There is no requirement the prosecution offer expert testimony concerning the obscenity of the material "when the allegedly obscene material itself is placed in evidence." State v. Groetken, 479 N.W.2d 298, 301 (Iowa 1991). The jurors, as the factfinders, determine the factual "issues of contemporary community standards for appeal to the prurient interest and patent offensiveness." Id. The term "contemporary community standards" is the yardstick the jury uses to "evaluate the material." Id. at 303. Further, courts have determined "lewd exhibitions of the genitals" can be patently offensive. Miller v. California, 413 U.S. 15, 25, 93 S. Ct. 2607, 2615, 37 L. Ed. 2d 419, 431 (1973).

When viewing the evidence in the light most favorable to the State, we conclude there is substantial evidence in the record to support the jury's verdict. While Canal's attorney argued the photograph only indicated a "natural interest in sex" as opposed to a "shameful or morbid" interest, the jury was not persuaded. The jury, using contemporary community standards, could conclude the picture of Canal's erect penis, shot in a close-up view and accompanied by an "I Love You" message, was not suitable material for a minor, was patently offensive, and appealed to a shameful or morbid interest in nudity or sex. We therefore uphold the jury's verdict.

Canal also argues his trial counsel was ineffective because the jury was not properly instructed on the applicable law when his trial counsel failed to request an instruction stating mere nudity did not constitute obscenity. We normally preserve ineffective-assistance-of-counsel claims for postconviction relief proceedings, however, direct appeal is appropriate when the record is adequate to determine as a...