State v. Harrold, A-97-1167

Citation585 N.W.2d 532,7 Neb.App. 842
Decision Date27 October 1998
Docket NumberNo. A-97-1167,A-97-1167
PartiesSTATE of Nebraska, Appellee, v. Scott A. HARROLD, Appellant.
CourtCourt of Appeals of Nebraska

Syllabus by the Court

1. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those circumstances under the Nebraska Evidence Rules when judicial discretion is a factor involved in the admissibility of evidence.

2. Criminal Law: Appeal and Error. In a criminal appeal from county court, appellate courts generally review for error on the record.

3. Obscenity: Proof. To regulate or prohibit publications, the State must prove all three parts of the test in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

4. Constitutional Law: Obscenity. Obscene materials are not within the ambit of speech or press protected by the First Amendment to the federal Constitution or Neb. Const. art. 1, § 5.

5. Obscenity. In determining whether a work appeals to the prurient interest under the first prong of the test in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), it must be judged as a whole, and not on the basis of isolated portions.

6. Obscenity. The context in which sexual material is presented must be considered.

7. Constitutional Law: Obscenity. If a work's predominant appeal, considered in the context of the work's entirety, is to sexual interest that is not deviant, the work may be considered indecent rather than obscene and, thus, entitled to constitutional protection.

8. Obscenity: Evidence: Expert Witnesses. A person charged civilly or criminally with violating the Nebraska obscenity statutes is entitled to present evidence in his or her defense and in support of his or her theory of defense, including, but not limited to, expert witnesses, proof of financial interest or lack thereof in the allegedly obscene work, and evidence to support a claim that the challenged work has serious literary, artistic, or scientific merit.

9. Criminal Law: Obscenity: Proof: Intent. When charged as a criminal offense, each element of an obscenity-related crime, including the intentional nature of the crime charged, must be proved by the State beyond a reasonable doubt, just like other criminal charges.

10. Evidence: Words and Phrases. 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.

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

12. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system.

13. Evidence: Words and Phrases. Materiality and probative value are the two components to relevancy.

14. Criminal Law: Trial: Juries: Evidence: Appeal and Error. 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.

15. Criminal Law: Obscenity: Proof: Words and Phrases. The word "obscene" is a legal term of art, and the prosecution must prove scienter to satisfy the elements of the crime of distributing obscene material.

16. Criminal Law: Obscenity: Proof. In a prosecution for obscenity, and with regard to scienter, the prosecution need prove only that the defendant knew the contents of the material and their character and nature.

17. Trial: Evidence: Appeal and Error. An appellate court must examine the sufficiency of the evidence presented against a defendant before it can order a new trial or dismiss the action.

18. Convictions: Evidence: Appeal and Error. Where the issue of sufficiency of evidence is raised on appeal, if it appears the evidence is sufficient to support the conviction, the cause may be remanded to a lower court for further proceedings; if the evidence is not sufficient, the cause must be dismissed.

19. Obscenity: Juries. A jury is not empowered with unfettered discretion to determine whether a questioned work is, in fact and at law, obscene.

20. Constitutional Law: Obscenity: Judgments: Appeal and Error. An appellate court ordinarily must reach an independent decision regarding the alleged obscenity of a work, because substantive constitutional limitations govern.

21. Constitutional Law: Judgments: Appeal and Error. The Nebraska appellate courts determine questions of constitutional dimension independent of conclusions reached by trial courts.

22. Obscenity. An object, book, magazine, or film can be judged obscene only after consideration of the allegedly objectionable aspects in the context of the entire work.

23. Criminal Law: Obscenity. The "taken as a whole" doctrine is a defendant's doctrine designed to protect against obscenity prosecutions based upon segments lifted out of the context of the entire work, which segments distort the thematic context of the work at issue.

24. Criminal Law: Obscenity: Intent. When considering the intent of a defendant charged with a crime of obscenity, if that intent is to convey a literary, artistic, political, or scientific idea, or to advocate a position, then the intent is serious.

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.

MILLER-LERMAN, C.J., and SIEVERS and MUES, JJ.

SIEVERS, Judge.

A jury in the Lancaster County Court convicted Scott A. Harrold of producing or distributing obscene material, a Class I misdemeanor, in violation of Neb.Rev.Stat. § 28-813(1) (Reissue 1995). Harrold's sentence

was a fine of $1,000. On appeal, the district court for Lancaster County affirmed Harrold's conviction and sentence. On further appeal, we address evidentiary rulings by the trial court and also the core question of whether Harrold's self-produced videotape was obscene.

FACTS

In late 1994, Harrold applied to TV Transmission, Inc., doing business as CableVision, for permission to broadcast "Cosmic Comedy," a television series he produced, on CableVision's public access channel. CableVision transmits cable television programming to its subscribers in and around Lincoln, Nebraska.

A copy of one of Harrold's written applications for permission to broadcast on CableVision was received in evidence at trial. In it, Harrold described "Cosmic Comedy" as an ongoing comedy series, with each episode 30 minutes in length, and he stated that he anticipated providing CableVision with four new episodes of the series each month. It is undisputed on the record that episodes of the series were generally 30 minutes in length. Harrold specifically noted in his application that the series depicted or described sexual or excretory activities or organs and that it also contained reviews of adult movies. Harrold requested that the series be broadcast at midnight.

CableVision granted Harrold's application, and in late 1994 or early 1995, he began providing CableVision with videotaped episodes of his series for broadcast on CableVision's public access channel. After Harrold completed production of each new episode, he delivered the videotaped episode to CableVision for broadcast. Harrold testified that he did not see CableVision's broadcasts of his series, because he did not subscribe to CableVision's service. Episodes of "Cosmic Comedy" were aired by CableVision on a regular basis until early 1997.

At trial, Harrold testified that he produced, directed, and often acted in the "Cosmic Comedy" episodes which he gave to CableVision for broadcast. Harrold explained that he designed the series to be an "experimental showcase," with a theme spoofing cheap science fiction films from the 1950's. Harrold stated that he had taken a course in "clowndom" at a local community college and that he had developed a cadre of a dozen or more clown characters who intermittently appeared on "Cosmic Comedy." These characters included clowns named "Cozblah" and "Crotchy," who appear in the episode at issue, and "Crappy," an older clown whom Harrold described as Crotchy's father.

On or about September 14, 1995, Harrold hand delivered a videotaped episode of the series to CableVision. This episode was recorded on 3/4-inch pneumatic videotape, a size and grade which is generally used only in professional broadcasting. The cover bore handwritten notations by Harrold that the videotape contained 20 minutes of material for broadcast during the "Cosmic Comedy" broadcast time period. A CableVision employee accepted the videotape from Harrold and gave it to David Grooman, CableVision's public access coordinator. Grooman watched this videotape, which at trial was labeled as exhibit 1. After viewing Harrold's videotape, Grooman made a copy of it on 1/2-inch videotape, which is the size of videotape used in most nonprofessional video cassette machines, and Grooman gave the copy to the Lincoln Police Department. This videotape was labeled at trial as exhibit 2. Harrold's original videotape, exhibit 1, was soon thereafter broadcast in its entirety by CableVision on its public access channel at least once, on or about September 24, 1995.

Exhibit 1, which was never seen by the jury, is 20 minutes in length. Exhibit 2, which was viewed by the jury, is only 16 minutes in length. It is undisputed that neither the credits nor program title were included in exhibit 2. There was...

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2 cases
  • State v. Harrold, S-97-1167
    • United States
    • Supreme Court of Nebraska
    • May 7, 1999
    ...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......
  • Estate of Rolenc, In re, A-97-544
    • United States
    • Court of Appeals of Nebraska
    • October 27, 1998
    ...... not marked as an exhibit and offered into evidence, although the contestants' attorney did state the motion was being submitted "based upon" the statement. Therefore, the statement cannot be ......

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