State v. Video Joe, Inc., 90

Citation578 So.2d 182
Decision Date28 March 1991
Docket NumberNo. 90,90
PartiesSTATE of Louisiana v. VIDEO JOE, INC., and Joe B. Howard, Individually and as President of Video Joe, Inc. KA 0761. 578 So.2d 182
CourtCourt of Appeal of Louisiana (US)

Walter P. Reed, Dist. Atty., Covington, William R. Campbell, New Orleans, for the State.

Wendell E. Tanner, Slidell, for defendants.



Video Joe, Inc. and Joe B. Howard (individually and as President of Video Joe, Inc.) were each charged by indictment with two counts of obscenity by distributing, exhibiting and displaying an obscene videotape, violations of LSA-R.S. 14:106. Not guilty pleas were entered on behalf of both defendants. Immediately before the jury trial, the state nolle prosequied the second count charged against both defendants. 1 After the trial, defendants were found guilty as charged. Joe B. Howard was sentenced to imprisonment at hard labor for one year, and Video Joe, Inc., was sentenced to pay a fine of $2,500.00. Defendants have appealed, alleging ten assignments of error, as follows:

1. The trial court erred by failing to sustain defendants' objection to State Exhibit # 4, based on the state's failure to lay a proper foundation prior to the introduction of this exhibit into evidence.

2. The trial court erred by failing to sustain defendants' objection to state witness Dr. Ernest Von Den Haag's testimony defining the term "prurient interest."

3. The trial court erred by sustaining the state's objection to the introduction of Defense Exhibit # 1.

4. The trial court erred by failing to sustain defendants' objection to the introduction of State Exhibit # 5 into evidence.

5. The trial court erred by failing to sustain defendants' objection to the testimony of David McKenzie, a state witness on rebuttal.

6. The trial court erred by failing to grant defendants' motion for post-verdict judgment of acquittal alleging the evidence viewed in the light most favorable to the state does not reasonably permit a finding of guilty.

7. The trial court erred by failing to grant defendants' motion for new trial alleging that the verdicts are contrary to the law and the evidence and that the ends of justice would be served by granting a new trial.

8. The prosecution improperly used four of its peremptory challenges to remove the four jurors who admitted on voir dire to renting X-rated movies.

9. LSA-R.S. 14:106 is unconstitutionally vague and overbroad.

10. The trial court erred by allowing the prosecution to introduce the videotape into evidence and by allowing the prosecution to show the videotape to the jury.

In brief, defendants expressly abandoned assignments of error numbers one and eight.

On March 22, 1988, during an undercover operation, Slidell Police Detectives Mark Cranford and Patrick Dennis went to the Video Joe, Inc. store in Slidell in an unmarked police unit. Pursuant to the undercover operation, the detectives had been instructed to rent a triple X-rated videotape from the store. When they arrived at the store, Det. Cranford parked and remained inside the police unit. Det. Dennis exited the unit, went into the store, and browsed around the main floor area for a few minutes. He then went into a separate back room inside the store where the empty boxes for individual "adult movies" were kept. While inside the back room, he began looking at the empty boxes in order to find one for a movie which was designated as triple X-rated. When he found one, specifically "Sins of the Wealthy," Det. Dennis copied its identifying number on a piece of paper, left the room, and went to the counter where Cameron Reed, an employee of Video Joe, Inc., was working. Det. Dennis handed the piece of paper to Mr. Reed. Mr. Reed filled out a rental card for "Sins of the Wealthy," which Det. Dennis signed. Det. Dennis then paid the rental fee, received the videotape of "Sins of the Wealthy," and walked out of the store to the police unit where Det. Cranford was waiting. The detectives then went to the Slidell Police Department station where they viewed the videotape.


In this assignment, defendants contend that the trial court erred by failing to sustain defense counsel's objection to state witness Dr. Ernest Von Den Haag's testimony defining the term "prurient interest."

Without objection by defendants, Dr. Von Den Haag was submitted by the state, qualified and accepted by the trial court as an expert witness in the field of sociology and for purposes of providing an opinion as to the literary, artistic, political or scientific value of the videotape entitled "Sins of the Wealthy", and whether the conduct shown therein would appeal to the prurient interests. Thereafter, during the state's direct examination of Dr. Von Den Haag, the prosecutor asked Dr. Von Den Haag to define the term "prurient interest." At that point, defendants entered an objection without stating any basis for the objection. In overruling defendants' objection, the trial court agreed with the state's position that the subject matter of the state's question was within the field of expertise in which the witness had been qualified. Dr. Von Den Haag then defined "prurient interest" and gave his opinion that "Sins of the Wealthy" appealed to the prurient interest.

By failing to object to the trial court's acceptance of the witness in the field of expertise for which he was submitted by the state, defendants waived the right to object to the state's subsequent questioning of the witness regarding the definition of "prurient interest" and the witness's opinion as to whether "Sins of the Wealthy" appealed to the prurient interest. See LSA-C.Cr.P. art. 841. In any event, we find the trial court's ruling permitting the witness to define "prurient interest" was within the trial court's discretion and that the witness' opinion (that "Sins of the Wealthy" appealed to the prurient interest) was within the limits of proper expert testimony. LSA-C.E. art. 702. 2

This assignment lacks merit.


In this assignment, defendants contend that the trial court erred by sustaining the state's objection to the introduction of Defense Exhibit # 1 on relevancy grounds.

At trial, defense witness Reinhard Dearing, 3 the Chief of Staff for the City of Slidell, identified Defense Exhibit # 1 as a letter to Joe B. Howard dated June 18, 1985, which he had written and signed. Chief Dearing explained that the letter was written after a conversation between Mr. Howard and himself, and a subsequent conversation between Chief Dearing and Slidell Assistant Chief of Police Terry Parta. Mr. Howard had inquired of Chief Dearing if there would be any problems with the local police regarding his rental trade of X-rated movies at the store; Mr. Howard explained that the movies would be kept behind a locked door. Chief Dearing testified that he told Mr. Howard that he would talk to Mr. Parta about the matter and get back in touch with him. We note that, immediately prior to introducing Chief Dearing's testimony, defendants presented testimony given by Mr. Parta. During Mr. Parta's testimony, he stated that he did not remember any conversations with Chief Dearing concerning Video Joe, Inc., or any other video stores in Slidell. Nevertheless, Chief Dearing indicated that he had a conversation with Mr. Parta. When defense counsel offered Defense Exhibit # 1 in evidence, the state objected on relevancy grounds. Out of the jury's presence, the trial court sustained the state's objection, but allowed a proffer of the letter. The substance of Defense Exhibit # 1 (which is handwritten) is as follows:


Terry Parta informs me that as long as the tapes are not available/accessible to public view and as long as he receives no complaints that you are renting to minors he or his department will take no action against you. He assured me that there would be no harassment.


Relevant evidence is evidence which tends 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. LSA-C.E. art. 401. All relevant evidence is admissible except as otherwise provided by law. LSA-C.E. art. 402. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or waste of time. LSA-C.E. art. 403.

Defendants essentially argue on appeal, as they did at the trial court level, only that the proffered exhibit was relevant to the issue of Mr. Howard's alleged lack of intent to commit the instant offense. Defendants submit that the exhibit clearly indicates an attempt by Mr. Howard, prior to obtaining X-rated movies, to ascertain whether he could legally rent such movies, indicating his lack of intent to violate the law. We are not convinced that the conversation of Mr. Howard which precipitated the inquiry Chief Dearing made on Mr. Howard's behalf represented an attempt by Mr. Howard to determine the legality of his operation; it is just as probable that it was merely an attempt to determine if he could conduct the operation without enforcement by the local police of the applicable obscenity proscriptions of the state or city.

We find that, regardless of any purported assurances in the proffered exhibit that the police would take no action against Mr. Howard, such assurances could not serve to preclude, diminish or otherwise affect the intent requirements established by state law in LSA-R.S. 14:106, nor serve as a defense to a violation of LSA-R.S. 14:106. Cf. United States v. Hale, 784 F.2d 1465 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 110, 93 L.Ed.2d 59 (1986), abrogated in part on other grounds sub nom., United States v. Weber, 915 F.2d 1282, 1286 n. 6 (9th Cir.1990), opinion amended on other grounds and...

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3 cases
  • State v. Larson
    • United States
    • Louisiana Supreme Court
    • April 10, 1995
    ...this rationale to the instant case, the defendant cites State v. Rose, 147 La. 243, 84 So. 643 (1920), and State v. Video Joe, Inc., 578 So.2d 182, 189 (La.App. 1st Cir.1991), for the proposition that a statute banning lewd dancing must have a scienter requirement. In the Rose case, this co......
  • 97-1885 La.App. 1 Cir. 6/29/98, State v. Shanks
    • United States
    • Court of Appeal of Louisiana — District of US
    • June 29, 1998
    ...State v. Francis, 345 So.2d 1120, 1121 (La.), cert. denied, 434 U.S. 891, 98 S.Ct. 267, 54 L.Ed.2d 177 (1977); State v. Video Joe, Inc., 578 So.2d 182, 191 (La.App. 1st Cir.1991). This assignment lacks ASSIGNMENT OF ERROR NO. 5: Defendant contends that La.Code Crim. P. art. 782 and La. Cons......
  • 26,613 La.App. 2 Cir. 1/25/95, State v. Harvey
    • United States
    • Court of Appeal of Louisiana — District of US
    • January 25, 1995
    ...a portion of the incident occurred was inadmissible because it was not supported by the defendant's testimony. In State v. Video Joe, Inc., 578 So.2d 182 (La.App. 1st Cir.1991), the court held that "[d]iagrams are admissible to aid the jury in understanding testimony if they are a reasonabl......

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