State v. McKinney
| Decision Date | 26 August 1986 |
| Docket Number | No. 50477,50477 |
| Citation | 718 S.W.2d 583 |
| Parties | STATE of Missouri, Respondent, v. Charles McKINNEY, Appellant. |
| Court | Missouri Court of Appeals |
Robert A. Margulis, Stephen A. Moore, Asst. Circuit Attys., George A. Peach, Circuit Atty., St. Louis, for respondent.
Devereaux & Stokes, Daniel R. Devereaux, and Thomas J. Prebil, St. Louis, for appellant.
Charles McKinney, defendant, was convicted in a court tried case of promoting pornography in the second degree. § 573.030 RSMo 1978. He was sentenced to pay a fine of $100.00.
A rendition of facts pertinent to this appeal follows: On February 21, 1985, detectives Philipak and Zouglas of the St. Louis Police Department investigated a book store located at 4626 Gravois Road in the City of St. Louis. The store is called "Bobbie's Books" and was subjected to investigation because allegedly obscene material was being sold there. On that day, Detective Philipak obtained a magazine from the store containing explicit sexual material. Defendant arrived at the store approximately forty-five minutes after Philipak obtained the book and was arrested for promoting the sale of the magazine.
At trial, defendant stipulated that the magazine was of a pornographic and obscene nature. Defendant, however, denied that he had knowledge of its content and character; a requisite element of the offense for which he was convicted. At trial, the state presented three exhibits and called two witnesses.
State's Exhibit # 1 consisted of certified corporate records of Trader Bob, Inc. from the office of the Secretary of State of Missouri. These records listed Charles McKinney as an incorporator, registered agent, president, treasurer, and a member of the board of directors. Also appearing on these records was the signature of Charles McKinney.
State's Exhibit # 2 was a City of St. Louis Merchant and Business License Tax Return for 1984 for the business, Bobbie Book Store # 3, 4626 Gravois Road, St. Louis, Missouri. The signature of Charles McKinney appears on the return, along with Trader Bob, Inc. as the name of the firm.
State's Exhibit # 3 was the magazine obtained by Detective Philipak.
All three of the State's Exhibits were admitted into evidence over defendant's objections. Defendant premised his objections to Exhibits # 1 and # 2 on the relevancy of these exhibits. More specifically, defendant argued that there was no proof by the state that the person who signed the exhibits was the defendant. As to the admission of Exhibit # 3, defendant generally objected.
The first witness called by the state was Detective Philipak. Philipak testified that during his investigation he had observed defendant visit the book store everyday. He testified that he had been present during four or five previous investigations when the defendant had been arrested for promoting pornography. He had heard the defendant being advised of his rights and why he was being arrested. On cross examination, Philipak testified that he had never personally met or talked to the defendant, nor had he discussed the magazine in question with the defendant.
The state's second witness was Detective Zouglas. Zouglas testified that the general nature of all materials for sale at the book store was pornographic. He testified that the books and magazines for sale depicted various sexual acts including homosexuality, sodomy, oral sex, and intercourse. He identified defendant at trial as having been arrested at the store on February 21, 1985, and also testified that he was familiar with defendant from previous investigations and arrests of the defendant for promoting pornography.
At the conclusion of the state's case the defendant moved for a directed verdict of acquittal. This was denied. No evidence was presented by the defendant.
As we discern from the briefs and the record, the central issue on appeal is whether defendant had "knowledge of the content and character" of the admittedly pornographic magazine. In order to prove the knowledge element of the crime the state attempted to show, by use of Exhibits # 1 and # 2, that defendant, as principal officer, director, and incorporator of the corporation operating Bobbie's Books, knew of the content and character of the items sold there--i.e. the magazine in question. The state also attempted to prove knowledge by showing that the defendant had been arrested for the same offense four or five times in the past and that he had visited the bookstore everyday during the period of investigation.
It is well settled that the element of knowledge must be proved beyond a reasonable doubt in order to convict a person for promoting pornography. Smith v. People of the State of California, 361 U.S. 147, 80 S.Ct. 215, 219, 4 L.Ed.2d 205 (1959). This requirement has been codified in the statute defining the crime. § 573.030 RSMo 1978. In order to satisfy this requirement the state must show "some knowledge of the nature of the contents of the publication" on the part of the defendant. State v. Smith, 422 S.W.2d 50, 62 (Mo. banc 1967). It is not necessary, however, that the defendant know that the publication's contents are obscene. State v. Flynn, 519 S.W.2d 10, 13 (Mo.1975); State v. Schamma, 659 S.W.2d 589, 592 (Mo.App.1983). The element of knowledge may be established by circumstantial evidence. Eyewitness testimony of a bookseller's perusal of the magazine is not required. Smith v. California, 80 S.Ct. at 219; Schamma, 659 S.W.2d at 592. It is permissible to infer knowledge of pornographic content from all the relevant and admissible evidence in the case.
Defendant does not dispute the foregoing principles. He argues, however, that there is no evidence to support his knowledge of the content and character of the magazine. Defendant maintains that, in Missouri, there must be evidence of a statement made by the accused to demonstrate his knowledge of the content of an allegedly obscene item. Defendant claims that because neither Detective Philipak nor Detective Zouglas had any conversation or other contact with defendant concerning the magazine in question there is no evidence from which scienter can be inferred. We disagree. Defendant correctly points out in his brief that "[c]ircumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist." State v. Famber, 358 Mo. 288, 214 S.W.2d 40, 43 (1948); MAI-CR2d 33.42. Circumstantial evidence used to establish knowledge need not consist of statements of the accused. As defined, such evidence may be comprised of any evidence that makes reasonable the inference that the ultimate fact exists.
As noted, the circumstantial evidence in the case at bar is state's Exhibits # 1 and # 2 (corporate records and license tax receipt) and the testimony by Detectives Philipak and Zouglas concerning defendant's prior arrests. Defendant argues that all this evidence was improperly admitted. We deal with each item separately.
Exhibit # 1 consisting of certified corporate records of an entity named Trader Bobs, Inc. Under § 490.180 RSMo 1978, such records are admissible in our courts without anything further.
Defendant maintains, however, that the records are irrelevant in that no foundation was laid connecting him with the records introduced. The state did not offer evidence to establish that the Charles McKinney on trial was the same Charles McKinney who was named in, and whose signature appeared on, the corporate records. Hence, it is argued, the records do not show that defendant was involved in the operation of Bobbie's Books and, therefore, do not constitute circumstantial evidence of his knowledge. We disagree.
First, Trader Bob's, Inc. was connected to Bobbie's Books through state's Exhibit # 2, the license tax receipt. Trader Bob's, Inc. appears as the firm name doing business under the trade name of Bobbie's Books. (The...
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