State v. Evenson

• Decision Date: 30 October 2001
• Docket Number: No. 1 CA-CR 00-0621.,1 CA-CR 00-0621.
• Citation: 33 P.3d 780,201 Ariz. 209
• Parties: STATE of Arizona, Appellee, v. Jerome Henry EVENSON, Appellant.
• Court: Arizona Court of Appeals

33 P.3d 780

201 Ariz. 209

STATE of Arizona, Appellee, v. Jerome Henry EVENSON, Appellant.

No. -0621.

Court of Appeals of Arizona, Division 1, Department E.

October 30, 2001.

Janet Napolitano, Attorney General, by Randall M. Howe, Chief Counsel, Criminal Appeals Section, Phoenix, Attorneys for Appellee.

Jones, Skelton & Hochuli, P.L.C., by A. Melvin McDonald, Phoenix, Attorneys for Appellant.

Jennings, Strouss & Salmon, P.L.C., by Stephen E. Lee, Phoenix, Attorneys for Amicus Curiae, Arizona Civil Liberties Union.

OPINION

RYAN, Judge.

¶ 1 Jerome Evenson appeals his convictions and sentences on thirteen counts of displaying, selling, or offering to sell from a vending machine material that is harmful to minors. See Ariz.Rev.Stat. ("A.R.S.") § 13-3513 (Supp.1997). Evenson has raised several issues on appeal. However, because only our resolution of the constitutional challenges to A.R.S. § 13-3513 merits publication, we have addressed the remaining issues in a separate memorandum decision. See ARCAP 28(g); Ariz. R. Sup.Ct. 111(h); State v. Benak, 199 Ariz. 333, 334, ¶ 4, 18 P.3d 127, 128 (App.2001).

¶ 2 We conclude that A.R.S. § 13-3513 is narrowly tailored to achieve a compelling governmental interest and therefore does not violate Evenson's First Amendment rights. We further conclude that § 13-3513 satisfies the requirements of equal protection and due process. Therefore, we affirm.

BACKGROUND

¶ 3 The primary issue before us is whether A.R.S. § 13-3513 is an unconstitutional restriction on freedom of speech. See U.S. Const. amend. I; Ariz. Const. art. 2, § 6. Accordingly, we must "make an independent examination of the whole record" to assure ourselves there has not been a "forbidden intrusion on the field of free expression." New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (citation omitted).

¶ 4 Evenson is the owner and publisher of The Beat, an adult-oriented weekly publication. He has published The Beat in Arizona since 1964. The tabloid-style newspaper contains news, editorials, and photographs, but primarily consists of sexually oriented advertisements for adult bookstores, numerous "escort" and "model" services, and the like. Dozens of these ads contain photographs of partially nude and completely nude women posing in a variety of positions.¹ However, no genitalia are displayed in any of the photographs. Additionally, The Beat contains "strictly personal" classified ads for persons seeking various sexual encounters with others.

¶ 5 In 1997, the Arizona Legislature passed A.R.S. § 13-3513. The statute reads as follows:

A. It is unlawful for any person to knowingly display, sell or offer to sell in any coin-operated or slug-operated vending machine or mechanically or electronically controlled vending machine that is located in a public place, other than a public place from which minors are excluded, any material that is harmful to minors as defined in § 13-3501.

B. It is a defense in any prosecution for a violation of subsection A that the defendant has taken reasonable steps to ascertain that the person is eighteen years of age or older and has taken either of the following measures to restrict access to the material that is harmful to minors:

1. Required the person receiving the material that is harmful to minors to use an authorized access or identification card to use the vending machine and has established a procedure to immediately cancel the card of any person after receiving notice that the card has been lost, stolen or used by persons under eighteen years of age or that the card is no longer desired.

2. Required the person receiving the material that is harmful to minors to use a token in order to use the vending machine.

C. A person who violates this section is guilty of a class 6 felony.

¶ 6 "Harmful to minors" is defined at A.R.S. § 13-3501 (1989). The definition was adopted by the Arizona Legislature in 1974 to conform with the test for obscenity promulgated by the United States Supreme Court in Miller v. California, 413 U.S. 15, 24-26, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). See S.B. 1227, Summary Analysis (Ariz.1974). Section 13-3501 requires the average adult to apply contemporary state standards with respect to what is suitable for minors. For an item to be harmful to minors, it must depict "nudity, sexual activity, sexual conduct, sexual excitement, or sadomasochistic abuse" in a patently offensive way, and it must appeal to the prurient interest and lack serious literary, artistic, political, or scientific value for minors when taken as a whole. Id. Actually furnishing such material to minors has been against the law in this state for some time. See A.R.S. § 13-3506(A) (1989).²

¶ 7 Although not entirely clear from the record, it appears that part of the impetus for the passage of A.R.S. § 13-3513 was a February 1997 newspaper article recounting complaints from mothers of young children about the availability of the Arizona Swinger and the Pleasure Guide, two competitor publications often sold in vending machines near those of The Beat.³ After passage of the statute, both the Swinger and the Pleasure Guide began blocking out any nudity in the photographs they published.

¶ 8 Shortly after § 13-3513 became effective, Phoenix vice officers received a telephone complaint from a man named Alfred Nelson concerning copies of The Beat being sold from a vending machine on Seventh Avenue. A vice detective met with Nelson, who showed the detective a copy of the August 22-28, 1997 issue (Vol.33, No. 29), which Nelson believed was inappropriate for minors. The detective then obtained a search warrant, and on August 27, 1997, officers from Phoenix, Mesa, and Chandler seized as evidence fifteen of the 200-plus area vending machines selling The Beat at 50-cents per copy.⁴

¶ 9 The vice detective who seized the eight vending machines impounded in Phoenix testified that they were "so well dispersed around the Valley, all you have to do is drive any direction if you are looking for them, and you'll find them." The detective said that two of the machines he impounded were located near high schools. In fact, Sunnyslope High School appears in the background of a photograph of a seized vending machine, and one of the two machines that completely sold out before the warrant could be executed was near a "Christian high school." A third machine was next to a Dairy Queen, a fourth was outside a pizza restaurant, and all eight machines seized in Phoenix were in close proximity to residential areas.

¶ 10 Similarly, a Mesa sergeant testified that one of the five vending machines he seized was in front of a post office "a little bit down the way" from a church and a school; another was near other churches; a third machine was across from the Mesa Community College; and all were located short distances from residential areas. It also appears that one of the two vending machines seized in Chandler was positioned within blocks of three different schools. Throughout Phoenix, Mesa, and Chandler, many machines were placed near convenience stores.

¶ 11 The grand jury indicted Evenson on fifteen counts of violating A.R.S. § 13-3513. Evenson's first trial ended in a hung jury. A second jury convicted him on thirteen counts, but acquitted him on the other two, apparently because two of the vending machines had sold out by the time the officers impounded them. The trial court placed Evenson on three years probation and imposed substantial fines. This appeal followed.

DISCUSSION

I. First Amendment

¶ 12 Evenson contends that A.R.S. § 13-3513 violates the First Amendment to the United States Constitution and Article 2, § 6 of the Arizona Constitution.⁵ The constitutionality of a statute is a matter of law that we review de novo. State v. Korzuch, 186 Ariz. 190, 192, 920 P.2d 312, 314 (1996)

.

¶ 13 Statutory limitations on free speech are subject to varying levels of scrutiny, depending on whether the limitation is content-based or content-neutral. Here, the parties agree that A.R.S. § 13-3513 is a content-based restriction, and as such is subject to strict scrutiny. See United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000)

(federal statute limiting sexually explicit programming on cable television is content-based restriction subject to strict scrutiny); Reno v. ACLU, 521 U.S. 844, 874, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) ("Reno I") (ban on sending obscene or indecent material over Internet is a content-based restriction); Sebago, Inc. v. City of Alameda, 211 Cal.App.3d 1372, 259 Cal.Rptr. 918, 923-24 (1989) (restricting sites of vending machines for adult newspapers is a content-based restriction). Under strict scrutiny analysis, content-based regulations must be "narrowly tailored to promote a compelling Government interest." Playboy, 529 U.S. at 813,

120 S.Ct. 1878 (citing Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989)). In the free speech context, a statute is narrowly tailored "if [the Government] chooses the least restrictive means to further the articulated interest." Sable, 492 U.S. at 126,

109 S.Ct. 2829 (1989). In addition, content-based restrictions are "presumptively invalid" and the state bears the burden of rebutting that presumption. Playboy, 529 U.S. at 817,

120 S.Ct. 1878 (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)).

¶ 14 Evenson argues that A.R.S. § 13-3513 violates the First Amendment because the State presented no evidence that the statute addressed a compelling state interest. Specifically, Evenson contends that under the Supreme Court's decision in Playboy, the State was required to show that minors had purchased, possessed, seen, and were harmed by The Beat. Alternatively, Evenson argues that even if A.R.S. § 13-3513 furthers a compelling interest, the State has failed to prove that it is the...