State v. J-R Distributors, Inc., J-R

CourtUnited States State Supreme Court of Washington
Writing for the CourtSTAFFORD; HALE; FINLEY; ROSELLINI; I agree with Utter; UTTER; ROSELLINI
Citation512 P.2d 1049,82 Wn.2d 584
PartiesThe STATE of Washington, Respondent, v.DISTRIBUTORS, INC., a corporation doing business as Spokane Magazine Center, and Howard C. Frank, Appellants. The STATE of Washington, Respondent, v. Jesse Allen COX, Appellant. The STATE of Washington, Respondent, v. Eugene Allen ROGOWAY, Appellant. The STATE of Washington, Respondent, v. Arthur MONTGOMERY, Appellant. The STATE of Washington, Appellant, v. Thomas F. KELLY, Defendant and Michael J. Kristek, Respondent. The STATE of Washington, Respondent, v. Samuel KRAVITZ, Appellant. The STATE of Washington, Respondent, v. Albert Thomas DUANE, Appellant. The STATE of Washington, Respondent, v. Thomas F. KELLY, Appellant. The STATE of Washington, Respondent, v. James Michael TIDYMAN, Appellant.
Decision Date27 July 1973
Docket Number42385 and 42429,Nos. 42371--42377,J-R

Page 584

82 Wn.2d 584
512 P.2d 1049
The STATE of Washington, Respondent,
v.
J-R DISTRIBUTORS, INC., a corporation doing business as
Spokane Magazine Center, and Howard C. Frank, Appellants.
The STATE of Washington, Respondent,
v.
Jesse Allen COX, Appellant.
The STATE of Washington, Respondent,
v.
Eugene Allen ROGOWAY, Appellant.
The STATE of Washington, Respondent,
v.
Arthur MONTGOMERY, Appellant.
The STATE of Washington, Appellant,
v.
Thomas F. KELLY, Defendant and Michael J. Kristek, Respondent.
The STATE of Washington, Respondent,
v.
Samuel KRAVITZ, Appellant.
The STATE of Washington, Respondent,
v.
Albert Thomas DUANE, Appellant.
The STATE of Washington, Respondent,
v.
Thomas F. KELLY, Appellant.
The STATE of Washington, Respondent,
v.
James Michael TIDYMAN, Appellant.
Nos. 42371--42377, 42385 and 42429.
Supreme Court of Washington, En Banc.
July 27, 1973.
Rehearing Denied Sept. 18, 1973.

[512 P.2d 1054]

Page 589

Young & Hoff, Victor V. Hoff, Seattle, Kenneth W. Sharaga, Deputy Pros. Atty., Seattle, for appellants.

Donald C. Brockett, Pros. Atty., Spokane, for respondent.

PREFACE

The majority opinion was written and submitted to the members of the court in mid-April 1973. While it was still under consideration the United States Supreme Court handed down Miller v. California, --- U.S. ---, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, --- U.S. ---, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) and Kaplan v. California, --- U.S. ---, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973). Although the foregoing opinions of the United States Supreme Court have caused no change in the result reached herein, it has been necessary to reevaluate and revise certain language.

STAFFORD, Associate Justice.

This opinion involves nine appeals consolidated under No. 42371. Eight of the appeals are from separate actions tried in King and Spokane Counties. Although there are numerous specific assignments of error in each case, they have been consolidated here because of a common constitutional attack upon RCW 9.68.010(1) and (2). In the ninth case the state appeals from the dismissal of a codefendant in one of the actions.

The large number of unique facts and resultant assignments of error do not lend themselves to a consolidated discussion of all issues. Thus, the cases will be discussed in three major divisions according to the legal and constitutional

Page 590

issues common to each. Division I is concerned with a dismissal of the state's case; Division II is concerned with the sale of obscene materials; and, Division III deals with the exhibition of films in a public theater.
I

DISMISSAL OF STATE'S CASE

State v. Michael J. Kristek, No. 42375

Defendant Michael Kristek and codefendant Thomas Kelly were charged in King County with two counts of selling obscene material. Each count is concerned with the sale of a magazine. The first involves the sale of 'Bedplay' and the second a sale of 'E--Jac'. Defendant Kristek was alleged to have aided and abetted in both.

At the conclusion of the state's case, Kristek moved to dismiss the action for lack of evidence. The trial court ordered the two counts against Kristek dismissed with prejudice because:

the state failed to present any evidence that the defendant . . . sold, or aided and abetted in selling, any magazines . . .

The state appeals.

The basic legal rule with which we are concerned is stated in State v. Zorich, 72 Wash.2d 31, 34, 431 P.2d 584, 587 (1967):

a challenge to the sufficiency of the evidence requires that the evidence be interpreted most strongly against the moving party and in the light most favorable to the opposing party, and whether the evidence is sufficient to submit the issue to the jury is a question of law for the court and no element of discretion is involved.

[512 P.2d 1055] The central issue is whether, under the above rule, there was sufficient evidence that Kristek aided and abetted his codefendant in the sale of the two magazines.

The evidence most favorable to the state indicates that Kristek had been employed as a clerk and magazine wrapper at the Eros Book Store only a few days prior to arrest. His duties, however, had consisted solely of wrapping magazines

Page 591

in cellophane. The state concedes that codefendant Kelly was the store's manager as well as the clerk at the time of the incident here in question.

On July 13, 1971, Detective Gruber, an undercover officer, entered the store. After browsing a short time, he took 'Bedplay' from a shelf and asked Kelly, who was standing behind the counter, whether he had an unwrapped copy to look at. Upon receiving a negative answer, Gruber replaced the magazine and continued to browse.

Shortly thereafter Kristek entered the room for the first time. He was seen conversing with Kelly at the counter. Although the discussion was not wholly intelligible, Gruber heard some mention of 'Bedplay' and 'E--Jac' and also heard Kristek tell Kelly something to the effect that they were all like the cover.

Unlike the cover of 'Bedplay', which depicted sexual activity, 'E--Jac's' cover was a suggestive design. Gruber pointed to 'E--Jac' and inquired generally of both Kelly and Kristek whether 'E--Jac's' contents were like the cover. In answer to the general question, Kristek spoke to Gruber for the first time, replying 'No, they are like the cover on 'Bedplay." At that point Gruber paid codefendant Kelly for 'Bedplay', took the magazine from Kelly and left the premises.

Detective Sanford, who had observed the transaction, introduced himself to Kelly and Kristek as a police officer. A short conversation ensued. During the conversation Gruber returned with 'Bedplay' and asked Kelly and Kristek whether 'E--Jac' was the same. Kristek said he didn't know. After Detective Sanford left, Mr. Gruber said, picking up 'E--Jac', 'isn't this the one you said was really good before?' Kristek acknowledged that it was, but the vice squad had been present and that he, Kristek, wasn't supposed to know what was inside the books. Gruber then purchased 'E--Jac' from Kelly and left after a discussion with Kelly about other materials in the store.

Shortly thereafter Kelly and Kristek were arrested,

Page 592

Kelly was charged with two counts of selling obscene materials and Kristek with aiding and abetting in such sales.

Assuming the truth of the foregoing evidence, the state's action against Kristek was properly dismissed. There was insufficient evidence that he aided and abetted his codefendant in the sale of the two magazines.

In State v. Gladstone, 78 Wash.2d 306, 312--313, 474 P.2d 274, 278 (1970), quoting from Johnson v. United States, 195 F.2d 673 (8th Cir. 1952), we set forth the prerequisites to liability as an aider and abettor as follows:

(T)o find one guilty as a principal on the ground that he was an aider and abetter, it must be proven that he shared in the criminal intent of the principal and there must be a community of unlawful purpose at the time the act is committed. As the term 'aiding and abetting' implies, it assumes some participation in the criminal act in furtherance of the common design, either before or at the time the criminal act is committed.

In short, the word 'abet' includes (1) knowledge of the perpetrator's wrongful purpose, and (2) encouragement, promotion or counsel of another in the commission of the criminal offense. State v. Hinkley, 52 Wash.2d 415, 325 P.2d 889 (1958).

We find no such evidence or reasonable inference to be drawn therefrom in the facts before us. Although Kristek was employed by the bookstore, he was at the time merely a magazine wrapper; he was not a clerk. There is no evidence or reasonable[512 P.2d 1056] inference to be drawn therefrom that he either sold, attempted to sell or assisted in delivery of the magazine during the transaction.

At best, Kristek and Kelly were overheard mentioning 'Bedplay' and 'E--Jac' during a conversation. Kristek was heard to tell Kelly that the contents were similar to the cover. It must be recalled, however, that Detective Gruber only overheard isolated portions of an entire conversation. The record does not even disclose the instigator thereof.

Finally, in answer to Detective Gruber's direct question,

Page 593

Kristek indicated the contents of 'E--Jac' were similar to the cover on 'Bedplay'.

One does not aid and abet unless, in some way, he associates himself with the undertaking, participates in it as in something he desires to bring about, and seeks by his action to make it succeed. State v. Gladstone, Supra; Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949). Mere knowledge or physical presence at the scene of a crime neither constitutes a crime nor will it support a charge of aiding and abetting a crime. State v. Gladstone, Supra; State v. Dalton, 65 Wash. 663, 118 P. 829 (1911).

The trial court is affirmed.

In the cases that follow it will be necessary to describe generally the contents of the various magazines, books and films to determine whether they are legally 'obscene' under the tripartite test of Roth v. United States, 354 U.S. 476, 489--490, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and Miller v. California, --- U.S. ---, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

Nearly a decade after Roth the United States Supreme Court changed the Roth concept by articulating a new test of obscenity. A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966) (hereafter cited as Memoirs v. Massachusetts or Memoirs). In Memoirs a plurality held that three elements must coalesce.

it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly...

To continue reading

Request your trial
115 practice notes
  • American Booksellers Ass'n, Inc. v. Schiff, Civ. 85-0966 BB.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 3 Noviembre 1986
    ...57, 50 L.Ed.2d 75 (1976); Art Theater Guild, Inc. v. State, 510 S.W.2d 258, 261 (1974). 14 State v. J-R Distributors, Inc., 82 Wash. 584, 512 P.2d 1049, 1060-61 (1973), cert. denied, 418 U.S. 949, 94 S.Ct. 3217, 41 L.Ed.2d 1166 (1974), modified, State v. Regan, 94 Wash.2d 47, 640 P.2d 725, ......
  • People v. Kuhns, Cr. 14439
    • United States
    • California Court of Appeals
    • 8 Septiembre 1976
    ...22--23, cert. den. (1975) 421 U.S. 954, 95 S.Ct. 1688, 44 L.Ed.2d 107; and State v. J-R Distributors, Inc. (1973) 82 Wash.2d 584, 599, 512 P.2d 1049--1059, cert. den. (1974) 418 U.S. 949, 94 S.Ct. 3217, 41 L.Ed.2d The paragraph in question reads, 'In prosecutions under this chapter, where c......
  • State v. Brouwer, No. 3373.
    • United States
    • Court of Appeals of South Carolina
    • 23 Julio 2001
    ...are merely logical prerequisites under traditional concepts of materiality and relevancy."); State v. J-R Distrib., Inc., 82 Wash.2d 584, 512 P.2d 1049, 1083 (1973) (en banc) ("To be relevant, the proferred [comparison] evidence must have something more than minimal probative value. It must......
  • State ex rel. Cahalan v. Diversified Theatrical Corp., Docket No. 20165
    • United States
    • Court of Appeal of Michigan (US)
    • 4 Marzo 1975
    ...Minn. 402, 216 N.W.2d 641 (1974); State v. Bryant, 285 N.C. 27, 203 S.E.2d 27 (1974); State v. J-R Distributors, Inc., 82 Wash.2d 584, 512 P.2d 1049 (1973); State ex rel. Chobot v. Circuit Court for Milwaukee County, 61 Wis.2d 354, 212 N.W.2d 690 (1973). As stated earlier, the courts of thi......
  • Request a trial to view additional results
115 cases
  • American Booksellers Ass'n, Inc. v. Schiff, Civ. 85-0966 BB.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 3 Noviembre 1986
    ...57, 50 L.Ed.2d 75 (1976); Art Theater Guild, Inc. v. State, 510 S.W.2d 258, 261 (1974). 14 State v. J-R Distributors, Inc., 82 Wash. 584, 512 P.2d 1049, 1060-61 (1973), cert. denied, 418 U.S. 949, 94 S.Ct. 3217, 41 L.Ed.2d 1166 (1974), modified, State v. Regan, 94 Wash.2d 47, 640 P.2d 725, ......
  • People v. Kuhns, Cr. 14439
    • United States
    • California Court of Appeals
    • 8 Septiembre 1976
    ...22--23, cert. den. (1975) 421 U.S. 954, 95 S.Ct. 1688, 44 L.Ed.2d 107; and State v. J-R Distributors, Inc. (1973) 82 Wash.2d 584, 599, 512 P.2d 1049--1059, cert. den. (1974) 418 U.S. 949, 94 S.Ct. 3217, 41 L.Ed.2d The paragraph in question reads, 'In prosecutions under this chapter, where c......
  • State v. Brouwer, No. 3373.
    • United States
    • Court of Appeals of South Carolina
    • 23 Julio 2001
    ...are merely logical prerequisites under traditional concepts of materiality and relevancy."); State v. J-R Distrib., Inc., 82 Wash.2d 584, 512 P.2d 1049, 1083 (1973) (en banc) ("To be relevant, the proferred [comparison] evidence must have something more than minimal probative value. It must......
  • State ex rel. Cahalan v. Diversified Theatrical Corp., Docket No. 20165
    • United States
    • Court of Appeal of Michigan (US)
    • 4 Marzo 1975
    ...Minn. 402, 216 N.W.2d 641 (1974); State v. Bryant, 285 N.C. 27, 203 S.E.2d 27 (1974); State v. J-R Distributors, Inc., 82 Wash.2d 584, 512 P.2d 1049 (1973); State ex rel. Chobot v. Circuit Court for Milwaukee County, 61 Wis.2d 354, 212 N.W.2d 690 (1973). As stated earlier, the courts of thi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT