State v. Harrold, S-97-1167

CourtSupreme Court of Nebraska
Citation256 Neb. 829,593 N.W.2d 299
Docket NumberNo. S-97-1167,S-97-1167
PartiesSTATE of Nebraska, Appellee, v. Scott A. HARROLD, Appellant.
Decision Date07 May 1999

Page 299

593 N.W.2d 299
256 Neb. 829
STATE of Nebraska, Appellee,
v.
Scott A. HARROLD, Appellant.
No. S-97-1167.
Supreme Court of Nebraska.
May 7, 1999.

Page 304

Syllabus by the Court

1. Constitutional Law: Obscenity. Obscenity is not within the area of constitutionally protected speech or press. Obscene speech can be prohibited or otherwise regulated without violating the prohibitions of the First Amendment to the U.S. Constitution.

2. Obscenity: Words and Phrases. The U.S. Supreme Court, in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), has limited the definition of obscenity to those materials which, taken as a whole, appeal to the prurient interest in sex; which portray sexual conduct in a patently offensive way; and which, taken as a whole, do not have serious literary, artistic, political, or scientific value. Sexually oriented materials are not obscene unless all three elements of the Miller test are satisfied.

3. Obscenity: Evidence: Appeal and Error. Case Disapproved. An appellate court's independent review of the evidence in obscenity cases does not require the appellate court to determine the issue of obscenity vel non as a matter of law, nor does it bar the appellate court from extending due deference to the trier of fact on essentially factual issues. Any language to the contrary in State v. American Theater Corp., 194 Neb. 84, 230 N.W.2d 209 (1975), is disapproved.

4. Constitutional Law: Obscenity. A determination of obscenity requires a two-stage inquiry that focuses first on the substantive content of the materials to see whether they depict or describe "hardcore" types of sexual conduct that the trier of fact could constitutionally label "patently offensive" according to contemporary community standards, i.e., whether it qualifies as possibly obscene; once such threshold condition is satisfied, the trier must then determine whether, as a matter of fact, the material taken as a whole predominantly appeals to the prurient interest or a shameful or morbid interest in nudity, sex, or excretion; is patently offensive; and lacks serious literary, artistic, political, or scientific value, as set forth in Neb.Rev.Stat. § 28-807(10) (Reissue 1995).

5. Constitutional Law: Obscenity: Appeal and Error. In reviewing a fact finder's determination that certain material is obscene, the first duty of an appellate court is to conduct an independent review and determine, as a matter of constitutional law, if the material falls within the substantive limitations set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), i.e., the depiction of certain hardcore sexual material that may be constitutionally regulated under the First Amendment. Thereafter, the appellate court must review the determinations of the [256 Neb. 830] trier of fact pursuant to the three-part obscenity standard set forth in Miller and Neb.Rev.Stat. § 28-807(10) (Reissue 1995).

6. Obscenity: Appeal and Error. In reviewing a fact finder's determination that certain material is obscene, the appellate

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court should give appropriate deference to the trier of fact regarding the first two prongs of the test set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), i.e., the "prurient interest" test and the "patently offensive" test, as they depend on knowledge of contemporary community standards that is uniquely within the province of the trier of fact. The appellate court should apply a de novo review in considering the third prong, i.e., "value" of the material at issue, since this determination does not depend upon community standards and is particularly amenable to appellate review.

7. Obscenity: Appeal and Error. In an obscenity case, an appellate court does not resolve conflicts in the evidence, pass on the credibility of the witnesses, or reweigh the evidence regarding the first two prongs of the test set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); such matters are within the fact finder's province for disposition.

8. Obscenity: Evidence: Juries. In determining an issue of fact in an obscenity case, each case must be determined on evidence peculiar to it alone and not by comparison to fact determinations made by another jury in a similar case.

9. Rules of Evidence. Pursuant to Neb.Rev.Stat. § 27-401 (Reissue 1995), relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

10. Rules of Evidence.. All relevant evidence normally is admissible, and conversely, evidence which is not relevant is not admissible.

11. Judges: Appeal and Error. The exercise of judicial discretion is implicit in determinations of relevancy, and a trial court's decision regarding it will not be reversed absent an abuse of discretion.

12. Judges: Words and Phrases. A judicial abuse of discretion means that the reasons or rulings of the trial court are clearly untenable, unfairly depriving a litigant of a substantial right, and denying a just result in matters submitted for disposition.

13. Evidence. Evidence may be irrelevant if it is directed at a fact not properly an issue under the substantive law of the case.

14. Evidence. If evidence fails to alter the probabilities of the existence or nonexistence of a fact in issue, the evidence is irrelevant.

15. Criminal Law: Trial: Evidence. A defendant in a criminal obscenity case has a right to introduce evidence pertaining to the community standard.

16. Criminal Law: Trial: Juries: Evidence: Proof. In a jury trial of a criminal case, an erroneous evidentiary ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.

17. Trial: Evidence. One does not "open the door" to admit evidence that is inadmissible; instead, the door is opened when evidence that had previously been inadmissible then becomes admissible by virtue of some act of counsel or the parties.

18. Supreme Court: Courts: Appeal and Error. The Supreme Court, upon granting further review which results in the reversal of a decision of the Court of Appeals, may consider, as it deems appropriate, some or all of the assignments of error the Court of Appeals did not reach.

[256 Neb. 831] 19. Juror Qualifications. Appeal and Error. The extent to which parties may examine jurors as to their qualifications rests largely in the discretion of the trial court, the exercise of which will not constitute reversible error unless clearly abused, and where it appears that harmful prejudice has been caused thereby.

20. Trial: Jurors: Presumptions: Proof. The competency of a juror is generally presumed, and the burden is on the challenging party to establish otherwise.

21. Trial: Jurors. The retention or rejection of a venireperson as a juror is a matter of discretion with the trial court.

22. Juror Qualifications: Appeal and Error. The finding of the trial court as to the qualifications of a juror will not be set aside unless there has been a clear abuse of judicial discretion.

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23. Appeal and Error. Errors that are assigned but not argued will not be addressed by an appellate court.

24. Jury Instructions: Proof. Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

25. Jury Instructions: Appeal and Error. All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.

26. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence to the contrary, it is presumed that a jury followed the instructions given in arriving at its verdict.

27. Sentences: Appeal and Error. A sentence within statutory limits will not be disturbed on appeal absent an abuse of discretion.

Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays, Lincoln, for appellant.

Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee.

Bruce A. Taylor, Paul J. McGeady, and Robin S. Whitehead, for amici curiae Senator James Exon, Retired; National Law Center for Children and Families, Inc.; and Morality in Media, Inc.

[256 Neb. 832] WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

GERRARD, J.

I. NATURE OF CASE

Scott A. Harrold was, pursuant to jury verdict, adjudged guilty in the Lancaster County Court of producing or distributing obscene material, in violation of Neb.Rev.Stat. § 28-813(1) (Reissue 1995), and the county court fined Harrold $1,000. On appeal, the district court affirmed the conviction and fine, but the Nebraska Court of Appeals reversed the conviction and dismissed the case, based on its determination that the material produced and distributed by Harrold was not obscene and was consequently protected by the First Amendment to the U.S. Constitution. See State v. Harrold, 7 Neb.App. 842, 585 N.W.2d 532 (1998). We granted the State's petition for further review, and for the reasons stated herein, we reverse the judgment of the Court of Appeals and remand this cause with directions to reinstate the judgment of the district court which had affirmed the judgment of the county court.

II. FACTUAL BACKGROUND

Harrold applied in late 1994 to produce an ongoing local series called "Cosmic Comedy," to be broadcast by TV Transmission, Inc., doing business as CableVision, on a public access channel of Lincoln cable television. The show began to air in January 1995, and Harrold's...

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