State v. Cooley
| Decision Date | 01 March 1989 |
| Docket Number | No. 14793,14793 |
| Citation | 766 S.W.2d 133 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Valerie COOLEY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Errol Copilevitz, Richard E. Standridge, Copilevitz, Bryant, Gray & Jennings, Kansas City, for defendant-appellant.
William J. Fleischaker, David C. Dally, Joplin, for plaintiff-respondent.
The defendant was convicted of promoting pornography in the second degree. § 573.030, RSMo 1978 (now repealed). The statutes under which she was convicted defined the third element of pornography as "applying contemporary community standards: ... It lacks serious literary, artistic, political or scientific value." § 573.010(1)(c), RSMo 1978, (now repealed). She contends her conviction was invalid because Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) in relevant part has defined pornography as "whether a reasonable person would find such value in the material, taken as a whole." Id., 481 U.S. at 501, 107 S.Ct. at 1921, 95 L.Ed.2d at 445 (footnote omitted). Her contention is denied.
The following is an outline of the history and facts of the case. An information charged that the defendant violated § 573.030, RSMo 1978, (now repealed) by promoting pornographic material, for pecuniary gain, such material being the magazines "Eat Me, Number 1" and "Hot Flesh, Volume I, Number I." Before trial she waived sentencing by jury. § 557.036.
The only witness testified to the following facts. On September 23, 1985, he and two associates entered an "adult" bookstore in Joplin. They perused approximately 200 magazines displayed in the store. They selected the two in question. They took them to the defendant sales clerk and told her they wanted to purchase the magazines. She told them the price was $17.98. She accepted the purchase price from the witness and rang it up on the cash register. The jury found the defendant guilty. The court fixed her punishment at a fine of $300. The defendant appealed to this court.
While the case was pending in this court, the United States Supreme Court decided Pope v. Illinois, supra. This court transferred the case to the Supreme Court of Missouri as the constitutionality of § 573.010(1), RSMo 1978, (now repealed) was at issue. That court has retransferred the case to this court. State v. Cooley, 756 S.W.2d 531 (Mo. banc 1988).
The defendant's principal point is that her conviction must be reversed because § 573.030, RSMo 1978, (now repealed), incorporating § 573.010(1), RSMo 1978, (now repealed) was unconstitutional because it "criminalized 'pornography' by relying upon a standard which required that serious literary, artistic, political or scientific value be determined by contemporary community standards...." A corollary point is that the trial court committed plain error because the verdict directing instruction incorporated a definition of pornography that "required that literary, artistic, political or scientific value be determined by the application of contemporary community standards rather than the standard of a reasonable person." These contentions do not require an extended discussion. The appeal has been "retransferred to the Court of Appeals, Southern District, for consideration under Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987), and State v. McKinney, 756 S.W.2d 527 (Mo. banc 1988)." State v. Cooley, supra, at 532.
The provisions of former § 573.010(1), RSMo 1978, (now repealed) defining pornography and its replacement § 573.010(8), RSMo Supp.1987, defining obscenity are set forth in State v. McKinney, supra. The same is true of § 573.030, RSMo 1978, (now repealed) and its replacement § 573.030 R.S.Mo Supp.1987. Those sections and their history need not be restated here. The provisions and history of those sections are for practical purposes the same as the provisions and history of the Illinois legislation considered in Pope.
To consider the case under Pope, this court has been directed:
Under these circumstances, we see no reason to require a retrial if it can be said beyond a reasonable doubt that the jury's verdict in this case was not affected by the erroneous instruction.
....
While it was error to instruct the juries to use a state community standard in considering the value question, if a reviewing court concludes that no rational juror, if properly instructed, could find value in the magazines, the convictions should stand.
Pope, 481 U.S. at 502-03, 107 S.Ct. at 1922, 95 L.Ed.2d at 947 (emphasis added) (footnotes omitted).
To consider this case under State v. McKinney, supra, this court is directed as follows. "In these circumstances, there is no reason to order retrials if it can be said beyond a reasonable doubt that the convictions in these cases were not affected by the erroneous wording of the statute." State v. McKinney, supra, at 530 (emphasis added).
The contents of "Eat Me" and "Hot Flesh" need not be described in detail. Their principal content is pictures of nude or partially nude men and women engaging in various actual or simulated acts of vaginal intercourse, cunnilingus and fellatio. They constitute unadulterated and unmitigated smut. This court determines that no rational person could find either magazine, taken as a whole, to have any literary, artistic, political or scientific value. The defendant's principal point and its corollary have no merit and are denied.
The defendant's third point is that the evidence is insufficient to support her conviction because the state did not prove beyond a reasonable doubt she knew the content and character of the magazines. She argues that
In presenting this point, the defendant overlooks the basic principles by which the sufficiency of the evidence is to be measured.
On that issue we consider the evidence and all inferences reasonably to be drawn therefrom in the light most favorable to the verdict, and disregard all contrary evidence and inferences.... The test is whether the evidence, so viewed, was sufficient to make a submissible case from which rational jurors could have found beyond a reasonable doubt that defendant was guilty.
State v. Marvel, 756 S.W.2d 207, 209 (Mo.App.1988) (citations omitted).
It is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials. To require proof of a defendant's knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law.
Hamling v. United States, 418 U.S. 87, 123, 94 S.Ct. 2887, 2910-2911, 41 L.Ed.2d 590, 624 (1974). This knowledge may be established by circumstantial evidence. State v. Triplett, 722 S.W.2d 633 (Mo.App.1986).
In this case the circumstances of the defendant's sale of the magazines include the following: On the front and back covers of each magazine is a lurid picture of what has been categorized as "hard core pornography." Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The price of one magazine was $9.95 and the other $7.00. The prices were shown on the front cover of the magazines. The defendant was employed in an "adult" bookstore, surrounded by sexually oriented books, magazines, videos and sex toys and artificial sex organs. The circumstances were much as in Commonwealth v. Bono, 7 Mass.App. 849, 384 N.E.2d 1260 (1979). In that case the court appropriately observed the following.
While the publication was stapled shut at the time of its purchase, the large printed legends and vivid photographs on its front and back covers make its obscene content abundantly clear at a glance, and Bono could scarcely have avoided noticing at least one of those covers when it was presented to him for purchase; it is especially difficult to imagine how he could otherwise have determined the price to charge, which is printed in relatively small type on the front cover.
Id. 384 N.E.2d at 1262. Also see United States v. Grassi, 602 F.2d 1192 (5th Cir.1979). There was sufficient evidence from which any rational juror could find beyond a reasonable doubt the defendant knew the character and content of the magazines. Burns v. State, 256 Ark. 1008, 512 S.W.2d 928 (1974); People v. Moore, 53 Ill.App.3d 75, 11 Ill.Dec. 35, 368 N.E.2d 586 (1977); State v. Triplett, supra.
The defendant's fourth point is as follows.
The trial court erred in overruling defendant's motion for new trial because defendant's First and Fourteenth Amendment rights were violated when defendant was brought to trial under the procedure contained in § 545.250 R.S.Mo as applied to Chapter 573 R.S.Mo in that allowing a private citizen to initiate criminal prosecution involving written material that is presumptively protected by the First Amendment is violative of the First and Fourteenth Amendments and has a pronounced impermissible 'chilling affect' upon the free exercise of First Amendment rights.
Section 545.250 provides that any person who has knowledge of the commission of a crime may file a complaint and that "it shall be the duty of the prosecuting attorney to file an information" thereon. The defendant's point refers to the fact that the individual who purchased the magazines in question was a member of the Citizens For Decency Through Law (CDL) and he filed a complaint based upon that purchase.
The essence of the defendant's argument to support that point is as follows.
Similarly the CDL was able to initiate prosecution in this case without reason or findings. Their sole object was to enforce their views upon the rest of their community. This private goal is not a proper...
To continue reading
Request your trial
-
St. Louis County v. B.A.P.
.... in the local community" of videos of that nature. The trial court refused the introduction of the evidence based on State v. Cooley, 766 S.W.2d 133 (Mo. App. S.D. 1989). In Cooley, the appellate court construed section 573.050, which addresses the admissibility of evidence in obscenity an......