State v. Davidson
| Decision Date | 11 June 1991 |
| Docket Number | No. CX-90-1304,CX-90-1304 |
| Parties | STATE of Minnesota, Respondent, v. Willard LeRoy DAVIDSON, Jr., Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
Minnesota's obscenity statute, Minn.Stat. Sec. 617.241 (1988), is overly vague and violative of the Minnesota constitutional guarantee of due process.
Hubert H. Humphrey, III, Atty. Gen., Paul R. Kempainen, Asst. Atty. Gen., St. Paul, Julius E. Gernes, Winona County Atty., Ann E. Merchlewitz, Asst. County Atty., Winona, for respondent.
John M. Stuart, State Public Defender, Cathryn Y. Middlebrook, Asst. Public Defender, Minneapolis, for appellant.
Considered and decided by AMUNDSON, P.J., and HUSPENI and RANDALL, JJ.
This is an appeal from a jury verdict finding appellant Willard LeRoy Davidson, Jr. guilty of one count of sale or distribution of obscene material in violation of Minn.Stat. Sec. 617.241, subd. 2(a) (1988). Appellant was sentenced to 91 days in jail and a fine of $3000, with a conditional stay of the jail time and $2500 of the fine. Appellant was ordered to pay $500 of the fine or to perform 100 hours of community service. All conditions were stayed pending appeal. Because the statute violates Minnesota's constitutional guarantee of due process, we vacate appellant's conviction.
Around November of 1988, members of the Winona Chapter of the Berean League decided to investigate the availability of pornography, if any, in the area of Winona, Minnesota. The Berean League is a Christian based organization which attempts to educate citizens on social, moral and political issues. Claiming to be concerned about adult bookstores in Winona, some of the members visited two stores in Winona on November 17th, the Ultimate Bookstore, which is an adult bookstore, and Video Hits, which is a video rental store with an adults-only section of rental movies. After viewing the stores and the materials for sale therein, the members complained to local police about the sale of hard core pornography at the Ultimate Bookstore.
Investigator Phil Goddis began an investigation acting upon the complaint of the Berean League. Goddis observed two signs on the outside of the Ultimate Bookstore. One advertised x-rated movies and the other stated that one must be 18 years of age to enter the store and have proof of age. Inside the store, Goddis observed racks of magazines and booths for coin operated videos. Goddis, without identifying himself, spoke to appellant, who was the store manager. Goddis purchased eight adult magazines.
On March 22, 1989, Goddis returned to the Ultimate Bookstore. He asked appellant about the coin-operated video machines in the booths. Appellant told him the movie played for approximately five minutes for fifty cents. Goddis viewed one of the movies for approximately ten minutes.
The movie and magazines showed numerous acts of sexual conduct. The material included detailed pictures of male and female genitals. The material protrayed sexual acts, including vaginal intercourse, anal intercourse, digital penetration, artificial stimulator penetration, masturbation, cunnilingus, fellatio and ejaculation. However, it is undisputed the material did not depict any independently illegal activity, such as beastiality or child pornography, and the material in question was sold only to consenting adults.
Goddis also went to Video Hits, a video rental store across the street from the Ultimate Bookstore. Video Hits has both general audience videos and an adults-only video section. Goddis observed films in the adults only section containing the same type of sexual acts as the materials he viewed in the Ultimate Bookstore.
On March 23, 1989, Goddis was granted a search warrant for the Ultimate Bookstore. During execution of the warrant, appellant told Goddis his full name and that he was the store manager. Appellant said he worked daily from 10:00 a.m. to 5:00 p.m. and his duties consisted of working the sales counter and writing down sales so supplies could be replaced. He did not determine what magazines were sold in the store. Appellant also said he did not have much to do with the coin-operated videos other than giving tokens or change to customers.
During the search, police seized a videotape entitled "Krazy for You" from one of the booths. Based on this videotape and the eight magazines purchased by Goddis, appellant was charged with distributing obscene material in violation of Minn.Stat. Sec. 617.241, subd. 2(a).
As part of his case, appellant presented testimony of Dr. Janice Amberson, an expert psychologist and consultant to residential treatment centers. Dr. Amberson had also worked for three years at the University of Minnesota where she had been the coordinator for a program in Human Sexuality and Research. At the University program, Dr. Amberson treated sex offenders, people with sexual dysfunction, and marital groups.
Based on her experience and work as a sex therapist, Dr. Amberson testified about the difference between a healthy and unhealthy interest in sex. In her opinion, the seized video and magazines appealed to a healthy interest in sex. Dr. Amberson stated she uses similar videos and magazines in the treatment of her patients and, in her opinion, the magazines and video portrayed normal sexual conduct between consenting adults.
Margaret Hansen, the manager of Video Hits, also testified for the defense. Video Hits carries all types of videos, including adults-only titles. Hansen testified her customers represent all professions and that approximately one-half of her total rental business comes from her adult video selection. She testified that Video Hits never had any legal problems or community complaints that she knew of.
The jury found appellant guilty as charged. The trial court denied appellant's motions for a judgment of acquittal not withstanding the jury's verdict and for a new trial. Davidson appeals his conviction.
1. Does Minn.Stat. Sec. 617.241 violate the freedom of speech and press provisions of article I, section 3, of Minnesota's own state constitution?
2. Is Minn.Stat. Sec. 617.241 void for vagueness or overbreadth so as to violate the guarantee of due process contained in the Minnesota constitution as applied here?
3. Does Minn.Stat. Sec. 617.241 violate the right to privacy as guaranteed by the Minnesota Constitution?
4. Was appellant denied his right to a fair trial by the trial court's exclusion of expert testimony on the margin of error of a six-person jury in determining contemporary community standards; the trial court's failure to suppress the video "Krazy for You;" the trial court's refusal to instruct the jury that if they were unable to determine what community standards are, then appellant was entitled to an acquittal; and by defining patent offensiveness in terms of acceptance rather than in terms of tolerance?"
Freedom of speech and press
We start with the knowledge the United States Supreme Court has found obscene material to be outside the normal protections afforded by the first amendment to the United States Constitution. 1 Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973). Appellant argues correctly that Minnesota may give more protection to individual liberties under our state constitution than the protection given under the federal constitution. See State v. Hershberger, 462 N.W.2d 393, 397 (Minn.1990) (religious liberties); State v. Fuller, 374 N.W.2d 722, 726 (Minn.1985) (double jeopardy clause); Wegan v. Village of Lexington, 309 N.W.2d 273, 281 n. 14 (Minn.1981) (equal protection); O'Connor v. Johnson, 287 N.W.2d 400, 405 (Minn.1979) ().
Article I, section 3, of the Minnesota Constitution provides:
The liberty of the press shall forever remain inviolate, and all persons may freely speak, write and publish their sentiments on all subjects, being responsible for the abuse of such rights.
Appellant argues that although Minnesota's constitutional provision for free speech and press and the first amendment to the Bill of Rights are similar, Minnesota is free to acknowledge a difference between the two, and the difference should be recognized as providing more freedom under our state constitution. A state is free to provide more protections to its citizens than the U.S. Constitution, but it cannot provide less. See State v. Gray, 413 N.W.2d 107, 111 (Minn.1987).
The current Miller standard for obscenity provides:
(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 or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Miller, 413 U.S. at 24, 93 S.Ct. at 2615, (1973) (citations omitted).
The Minnesota obscenity statute, Minn.Stat. Sec. 617.241, subd. 2(a), provides in relevant part:
It is unlawful for a person, knowing or with reason to know its content and character, to:
(a) exhibit, sell, print, offer to sell, give away, circulate, publish, distribute or attempt to distribute any obscene material;
The term "obscene" is defined in Minn.Stat. Sec. 617.241, subd. 1 as follows:
(a) "Obscene" means that the work, taken as a whole, appeals to the prurient interest in sex and depicts or describes in a patently offensive manner sexual conduct and which, taken as a whole, does not have serious literary, artistic, political, or scientific value. In order to determine that a work is obscene, the trier of fact must find:
(i) that the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest in sex (ii) that the work depicts sexual conduct...
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State v. Davidson
...all stayed, and a fine of $3,000, of which $2,500 was stayed for two years. A splintered court of appeals reversed. State v. Davidson, 471 N.W.2d 691 (Minn.App.1991). Judges Randall and Amundson, writing separately, held the obscenity statute unconstitutionally vague. They also held the sta......