State v. Davidson

• Decision Date: 28 February 1992
• Docket Number: No. CX-90-1304,CX-90-1304
• Citation: 481 N.W.2d 51
• Parties: STATE of Minnesota, Petitioner/Appellant, v. Willard LeRoy DAVIDSON, Jr., Respondent.
• Court: Minnesota Supreme Court

Page 51

481 N.W.2d 51

STATE of Minnesota, Petitioner/Appellant, v. Willard LeRoy DAVIDSON, Jr., Respondent.

No. CX-90-1304.

Supreme Court of Minnesota.

Feb. 28, 1992.

Syllabus by the Court

(1) The use of "community standards" did not render Minnesota's obscenity statute, Minn.Stat. § 617.241 (1990), so vague as to deny respondent the due process of law guaranteed by art. I, § 7 of the Minnesota Constitution.

(2) Obscenity is not protected expression under art. I, § 3 of the Minnesota Constitution.

(3) The right to privacy guaranteed by the Minnesota Constitution does not extend to the commercial distribution of obscene materials.

(4) The evidence adequately supported the jury's determination that the materials distributed by respondent were obscene within the meaning of Minn.Stat. § 617.241.

Hubert H. Humphrey, III, Atty. Gen., Jocelyn F. Olson, Asst. Atty. Gen., St. Paul and Julius E. Gernes, Winona Co. Atty., Ann E. Merchlewitz, Asst. Co. Atty., Winona, for petitioner/appellant.

John Stuart, State Public Defender, Cathryn Middlebrook, Asst. State Public Defender, Minneapolis, for respondent.

Randall D.B. Tigue, Deborah Moore Gilman, Minnesota Civil Liberties Union, Minneapolis, amicus curiae for MN Civil Liberties Union.

Paul D. Baertschi, Minneapolis, and Robert W. Peters, Morality in Media, Inc., New York City, amicus curiae for Morality in Medica, Inc.

Alan E. Searns, Len L. Munsil, Phoenix, Ariz., and Thomas W. Prichard, St. Paul amicus curiae for Nat. Family Legal Foundation and The Berean League.

Marjorie Heins, ACLU Art Censorship Project, New York City, amicus curiae for ACLU Art Censorship Project.

Heard and decided by the court en banc.

TOMLJANOVICH, Justice

In this appeal, the State asks us to overturn a split decision of the court of appeals holding that the state's obscenity statute, Minn.Stat. § 617.241, is void for vagueness under art. I, § 7 of the Minnesota Constitution, thereby invalidating respondent's conviction for distributing obscene materials. Respondent cross appeals on the grounds that (1) the statute violates the free speech/press clause of Minn. Const. art I, § 3; (2) that the statute is overbroad in violation of the state due process clause, Minn. Const. art I, § 7; (3) that the statute violates the right of privacy guaranteed under the state constitution; (4) that the evidence was insufficient as a matter of law to support respondent's conviction; and (5) that respondent was denied a fair trial by a variety of evidentiary rulings.

We hold that Minn.Stat. § 617.241 passes state constitutional muster in all respects. We reject respondent's claim of insufficient evidence and uphold the challenged trial court rulings. We reverse the court of appeals and reinstate respondent's conviction.

In November 1988, a citizens group complained to Winona police about the sale of hard-core pornography at the Ultimate Bookstore. A police detective was assigned to investigate, and on March 20, 1989, he visited the store. Outside, he observed a sign advertising X-rated movies and another stating that persons must be at least 18 to enter. Inside, he observed several racks of magazines and several booths for coin-operated videos. The magazine covers all depicted sexual acts, visible through clear plastic wrappers.

The officer talked with respondent, the store manager who was working at the counter. The officer bought eight magazines, which were entered into evidence. They were entitled: "Cum Eaters," "Oral Women II," "Horny Women," "Hot for Cock," "Wet Pussy Lips," "Hard and Wet No. II," "Girls on the Make," and "Hard Video No. 4." The magazines feature explicit color photographs of vaginal intercourse, anal intercourse, digital penetration and oral-genital sex. Two days later, the officer returned to the store and asked respondent about the coin-operated video machines in the booths. He was told that the movies play about five minutes for 50 cents. He entered a booth, deposited two quarters and watched a video for 10 minutes, observing numerous sex acts.

On March 23, 1989, police executed a search warrant at the Ultimate Bookstore and seized the video "Krazy for You." In addition, police videotaped and photographed the store's interior to show the kinds of items for sale and how they were displayed.

At trial, respondent called Dr. Janice Amberson, a psychologist and consultant who has treated sex offenders, marital groups and people with sexual dysfunction. Dr. Amberson testified that in her opinion the seized materials depicted normal sexual conduct between consenting adults, which was not shameful or degrading. She stated her opinion that healthy sex encompasses any mutually enjoyable act between consenting adults. She said sex becomes unhealthy if it involves force or a wide disparity in maturity. She testified that she would use materials like those at issue to treat patients, although she has not done so.

The defense also called the manager of a mainstream video rental store that includes an adult movie section. The manager testified that in the previous three years the store had 3,000 to 5,000 members, from all walks of life, and accounts with area schools. She testified that half of all rentals were from the adult section. The trial court denied respondent's request to call Ronald Anderson, a University of Minnesota sociology professor. He would have testified as an expert on public opinion sampling and the margin of error when six jurors try to discern "community standards."

Respondent was convicted of gross misdemeanor distribution or sale of obscene material in violation of Minn.Stat. § 617.241. He was sentenced to 91 days in jail, 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 statute was not overbroad and that respondent had not been denied a fair trial. They did not address respondent's arguments that the obscenity statute (1) violates Minn. Const. art. I, § 3; (2) that the statute violates the right to privacy; and (3) that the conviction was not supported by the evidence. Judge Huspeni dissented. She would have upheld the trial court in all respects.

We begin our analysis by pointing out that Minnesota's obscenity statute withstands scrutiny under the federal Constitution. Minn.Stat. § 617.241 provides:

Subd. 2(a): It is unlawful for a person, knowing or with reason to know its contents and character, to:

(a) exhibit, sell, print, offer to sell, give away, circulate, publish, distribute or attempt to distribute any obscene material.

Subd. 1(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 specifically defined by clause (b) in a patently offensive manner, and

(iii) that the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Subd. 1(b) [defining sexual conduct]:

(i) An act of sexual intercourse, normal or perverted, actual or simulated, including genital-genital, anal-genital, or oral-genital intercourse, whether between human beings or between a human being and an animal.

(ii) Sadomasochistic abuse, meaning flagellation or torture by or upon a person who is nude or clad in undergarments or in a sexually revealing costume or the condition of being fettered, bound, or otherwise physically restricted on the part of one so clothed or who is nude.

(iii) Masturbation, excretory functions, or lewd exhibition of the genitals including any explicit, close-up representation of a human genital organ.

(iv) Physical contact or simulated physical contact with a clothed or unclothed pubic areas or buttocks of a human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual gratification.

This statute satisfies federal guarantees of free speech and press, due process and privacy because Minn.Stat. § 617.241 tracks, virtually verbatim, the United States Supreme Court's obscenity cases, particularly Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Therefore, the statute is invalid only if the demands of the state constitution exceed those of the federal Constitution. We will address respondent's claims one at a time.

Vagueness

The defendant argues, and two court of appeals judges held, that the "community standards" element of Minn.Stat. § 617.241 makes it void for vagueness, in violation of the state constitution. The argument is that unless s/he is a mind reader, a person in respondent's position cannot know in advance whether his or her conduct is illegal.

Minn. Const. art. I, § 7 provides that no person "shall be held to answer for a criminal offense without due process of law * * *." And it has been held that due process requires that criminal statutes be sufficiently clear and definite to warn a person of what conduct is punishable. State v. Simmons, 258 N.W.2d 908, 910 (Minn.1977). The goal is to prevent arbitrary, standardless enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). Due process will bar an obscenity conviction if the defendant does not have fair warning of what materials are prohibited. State v. Welke, 298 Minn. 402, 411, 216 N.W.2d 641, 648 (1974).

The Supreme Court has rejected the argument that "community...