State v. Helgoth, 66391

• Decision Date: 29 May 1985
• Docket Number: No. 66391,66391
• Citation: 691 S.W.2d 281
• Parties: STATE of Missouri, Respondent, v. Walter E. HELGOTH, Appellant.
• Court: Missouri Supreme Court

Page 281

691 S.W.2d 281

STATE of Missouri, Respondent, v. Walter E. HELGOTH, Appellant.

No. 66391.

Supreme Court of Missouri,

En Banc.

May 29, 1985.

Rehearing Denied June 25, 1985.

Shawn A. Goulet, Asst. Public Defender, Clayton, for appellant.

Mary Elise Burnett, Asst. Atty. Gen., Jefferson City, for respondent.

GUNN, Judge.

Defendant appeals his conviction for abuse of a child, § 568.060, RSMo 1978. ¹ In light of defendant's challenges to the validity of that statute, we have jurisdiction of this appeal. Mo. Const. art. V, § 3. We affirm.

Defendant was convicted of photographing a child less than seventeen years old engaging in a "prohibited sexual act" within the meaning of § 568.060. He took posed photographs of a girl under seventeen, focusing on her uncovered breasts and vagina. That section, as pertinent, makes it illegal to photograph a child less than seventeen years old engaging in "nudity, if such nudity is to be depicted for the purpose of sexual stimulation or gratification of any individual who may view such depiction." Id. ² Defendant challenges the validity of the statute on two grounds: first, that the statute is impermissibly vague, in violation of the due process clauses of the Missouri and United States Constitutions, Mo. Const. art. I, § 10; U.S. Const. amend. XIV, § 1; and, second, that the statute is overbroad in violation of the First Amendment to the United States Constitution. U.S. Const. amend. I.

Defendant's vagueness challenge centers on the statute's scienter requirement, which proscribes the photographing of children engaging in nudity "if such nudity is to be depicted for the purpose of sexual stimulation or gratification of any individual who may view such depiction." § 568.060. Specifically, defendant contends that the statute does not provide sufficiently explicit guidelines, either to the public or to those charged with its enforcement, as to what sort of nudity will result in the "sexual stimulation or gratification of any person." Id.

Due process requires that "laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972); State v. Brown, 660 S.W.2d 694, 697 (Mo. banc 1983). Furthermore, "laws must provide explicit standards for those who apply them." Grayned, 408 U.S. at 108, 92 S.Ct. at 2299.

Under the circumstances of this case, the defendant is not compelled by the statute to speculate whether any person viewing his pictures would be sexually stimulated or sexually gratified. The effect of the statute as it applies to the defendant's actions is to prohibit photographing nude children with the specific purpose that the depictions thereby created be used for sexual stimulation or gratification. It is the intent of the photographer with which we are concerned in this case. The standard employed is a subjective one, pertaining to the actor's state of mind and is therefore uniquely within the control of the potential offender. Such a standard provides an intrinsic element of notice, as the actor is also in a uniquely suitable position to know whether his purpose will coincide with that proscribed by the statute. Furthermore, describing the purpose in terms of "sexual stimulation or gratification," while somewhat refined in its usage, is not a formula which is apt to be lost on adults possessed of common sensibilities. The test for purpose, when viewed in this context, is a clear and bold direction to those desiring to conform their conduct to the law. The statute gives manifest warning that anyone taking nude pictures of children less than seventeen years of age is taking great risk of being found guilty of child abuse if the purpose of the photography is that described in § 568.060.

Certainly, as this case illustrates, proof of purpose may be established by the circumstances of the photography itself. See State v. Chevlin, 284 S.W.2d 563, 566 (Mo.1955) (jury may consider all related circumstances giving rise to the charge). ³ Here, defendant was shown to have photographed a young girl of his acquaintance, at ages twelve and fourteen, without the knowledge of her parents. The photographs at age twelve were taken in the girl's bedroom. The subject was nude. The later pictures were taken outdoors, and included nude photos as well as some with the subject partially clothed in a cheerleading uniform. The primary subject of the photographs was the exposed vagina and bare breasts of the young girl.

Circumstances in which the same inference of purpose would not be available are multiple, but examples include photography by a health care provider for use in diagnosis or research and the traditional bearskin-rug pose for infants. Just as in these examples the photographer, when faced with the statutory rubric, would have no doubt as to the licit nature of his actions, a photographer in the defendant's circumstance should have a well-founded concern for the criminality of his conduct.

In this case, the trier of fact could reasonably find that defendant's purpose in photographing his young subject in the manner exhibited was for the purpose of his sexual stimulation or gratification and, hence, a violation of § 568.060.

Defendant's second point asserts that the challenged statute is overbroad within the context of the freedom of speech protection of the First Amendment. Defendant maintains, however, that relief under the First Amendment overbreadth doctrine depends in the first instance upon whether the conduct of the party challenging the statute receives protection under that constitutional amendment. He then posits that his conduct was indeed protected because the photographs he took were not determined to be obscene under the standard enunciated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Also see Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) regarding regulation of so-called "adult" materials.

Defendant's argument misinterprets the function of the First Amendment overbreadth doctrine, which permits those against whom a statute may constitutionally be applied to challenge its unconstitutional effect on protected speech by others. New York v. Ferber, 458 U.S. 747, 767-69, 102 S.Ct. 3348, 3359-61, 73 L.Ed.2d 1113 (1982). However, inasmuch as defendant asserts the point, we shall consider whether his conduct was shielded from the sanctions imposed by § 568.060 by the aegis of the First Amendment. We conclude that it is not.

The fundamental observation supporting this conclusion is that the activity engaged in by the defendant and prohibited by the statute is distinctly conduct, as contrasted with speech. The offensive act is grounded in child abuse, and that is the epicenter of the case. The specific distinction to be made is between the use of children in the actual production of pornographic materials and the ultimate dissemination of materials so produced.

Furthermore, the prohibited conduct is clearly that in which the state has a compelling interest to prevent. And even if it were assumed that the prohibited conduct contained "speech" as well as "nonspeech" elements, "a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms."

United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968). Under the test developed by that court, the regulation of conduct is sufficiently justified

if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Id., 391 U.S. at 377, 88 S.Ct. at 1679. We conclude that, even under the test applicable to hybrid activity, defendant's conduct could be proscribed by the statute in question under the First Amendment.

First, it cannot be gainsaid that the protection of the health of its children is within the constitutional police power of the state. See Mo. Const. art. I, § 2. The exploitation of children through their use as subjects of pornographic materials is harmful to their emotional and mental as well as physical health and is a conclusion which bears the imprimatur of the United States Supreme Court. Ferber, 458 U.S. at 758, 102 S.Ct. at 3355.

Second, that court has also concluded that the state's interest in preventing the use of children as subjects of even non-obscene pornography is compelling. In Ferber, the Court upheld a New York statute which prohibited the distribution of non-obscene child pornography against a challenge that it violated First Amendment freedom of speech. In doing so, the Court stated that "[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." Id., at 757, 102 S.Ct. at 3355. The Court also noted that

virtually all of the States and the United States have passed legislation proscribing the production of or otherwise combating "child pornography." The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. That judgment, we think, easily passes muster under the First Amendment.

Id., at 758, 102 S.Ct. at 3355 (footnote omitted).

Third, it is clear that the state's interest in protecting its children from the dangers of sexual exploitation and abuse is unrelated to the suppression of free expression. This conclusion follows from the distinctly non-expressive nature of the prohibited conduct itself--the exposure of a child's nude body to the present...