State v. Brouwer

550 S.E.2d 915, 346 S.C. 375, 2001 S.C. App. LEXIS 108

• Court: Court of Appeals of South Carolina
• Decided: July 23, 2001
• Docket: 3373
• Status: Published

Opinions

SHULER, Judge:

A jury convicted Eric Brouwer of disseminating obscene material and the trial court sentenced him to four years imprisonment, suspended on service of six months, and three years probation. Brouwer appeals, arguing the court erred in failing to grant a directed verdict, in refusing to admit comparable materials into evidence, and in sentencing him more harshly than a co-defendant who pled guilty. We affirm in part, reverse in part, and remand.

FACTS/PROCEDURAL HISTORY

In early February 1999, the Cherokee County Metro Narcotics Unit began an undercover investigation of Bedtyme Stories, an adult business, after receiving complaints from local citizens. Officer David Parker visited the store on several occasions, posing as a customer and inspecting videos potentially in violation of the state’s obscenity laws. On February 18 Parker rented a videotape entitled AGB2 (ANAL GANG BANGERS 2) from Wendy Kaplan, a sales clerk. Parker and fellow Officer Christy White returned and purchased a copy of the movie on February 22 from another clerk, Eric Brouwer.

On the day of sale, Parker informed Brouwer he wanted to buy AGB2 and Brouwer accessed Parker’s account on the store computer. When. Brouwer asked Parker if he was buying the movie because he liked it, Parker replied he was starting a “little library.” , Brouwer explained he thought Parker might have been under the mistaken impression he was required to buy the movie because he had rented it. Brouwer then scanned the tape, placed it in a bag, and told Parker the price. Parker paid and signed a receipt certifying he was at least twenty-one years old, and Brouwer handed him the bag.

A Cherokee County grand jury indicted both Brouwer and Kaplan for disseminating obscene material. Scheduled for a joint trial, Kaplan ultimately pled guilty and the trial court sentenced her to two years plus a $5,000 fine, provided that upon payment of a fine of $750 plus costs the balance of the sentence would be suspended. The court also placed Kaplan on probation for two years.

Brouwer proceeded to trial and the jury returned a verdict of guilty. The trial court sentenced him to four years imprisonment, balance suspended upon service of six months, and three years probation. In addition, the court imposed special conditions requiring Brouwer to “participate in such counseling as probation deems appropriate, which should include something about sensitivity counseling” and human relationships. This appeal followed.

LAW/ANALYSIS

I. Directed Verdict

Brouwer first argues the trial court erred in refusing his motion for a directed verdict because the State failed to prove he “knowingly” disseminated obscene material. We disagree.

In considering a directed verdict motion, the trial court is concerned with the existence or non-existence of evidence, not its weight. State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63 (1998). On appeal of a criminal case, the reviewing court considers the evidence in the light most favorable to the State. State v. Fennell, 340 S.C. 266, 531 S.E.2d 512 (2000). If any direct or substantial circumstantial evidence exists which reasonably tends to prove the defendant’s guilt, or from which his guilt may be fairly and logically deduced, this Court must find the trial court properly submitted the case to the jury. State v. Pinckney, 339 S.C. 346, 529 S.E.2d 526 (2000).

The indictment charged Brouwer pursuant to S.C.Code Ann. § 16-15-305(A) (Supp.2000), which prohibits a person from “knowingly” disseminating obscene material.¹ The statute defines “knowingly” as “having general knowledge of the content of the subject material or performance, or failing [to have such knowledge] after reasonable opportunity to exercise reasonable inspection which would have disclosed the character of the material or performance.” § 16-15-305(C)(5).

The record reflects Bedtyme Stories was located in a building with a “yellow awning” identifying the business as an “adult store.” It also reveals Brouwer asked Parker to show an I.D. before entering the establishment, and made a copy of his driver’s license because he appeared to be under the age of thirty. In addition, when Parker bought AGB2, Brouwer required him to sign a receipt attesting that he was at least twenty-one years old. This evidence suggests Brouwer possessed at least some general knowledge of the adult nature of the store’s merchandise.

More important, during a transaction lasting several minutes, Brouwer handled the movie for a minimum of fifteen to twenty seconds, scanning it with an electronic device and placing it in a bag. • The tape, in its original packaging with the full title appearing on the front and back, prominently displays “AGB2” in large print (with the words “ANAL GANG BANGERS 2” in smaller print underneath) on the top, bottom, and sides of the box. The back of the box also features three sexually explicit photographs, two of which depict a female engaged in simultaneous sexual activity with two men, along with a written summary of the movie’s contents.

In our view, Brouwer’s personal exposure to the video, even for a relatively short period of time, coupled with the obviously adult nature of the Bedtyme Stories business, is sufficient evidence tending to prove he knew or should have known the general character of the tape’s content. See Commonwealth v. Dane Entm’t Servs., Inc., 23 Mass.App.Ct. 1017, 505 N.E.2d 892, 893 (1987) (holding evidence, including fact that film was billed as “X-Rated” on directory in theater lobby opposite ticket counter along with other adult movies, that a sign nearby stated no minors were allowed, and that the word “ADULT” appeared twice in boldface type on ticket face, sufficiently warranted conclusion by a rational trier of fact that the defendant “had a general awareness of the [obscene] character of the film”); compare State v. Bean, 327 S.C. 589, 490 S.E.2d 16 (1997) (finding the State failed to prove nightclub owners knowingly permitted obscene dancing on their premises where no evidence indicated owners, who were not present when police videotaped the allegedly lewd conduct, knew or had reason to know nude dancers were bending over and exposing themselves to customers); State v. Pendergrass, 13 S.W.3d 389, 394-95 (Tenn.Crim.App.1999) (stating evidence video store proprietor stocked items of a sexual nature and advertised such on his building’s signs was insufficient to establish he “knowingly distributed obscenity,” where the prosecution failed to establish the degree of his involvement in the business and presented no evidence he was on the premises “or engaged in activities such as assisting customers with purchases, stocking shelves, receiving merchandise, or ordering merchandise”) (emphasis added). The trial court, therefore, did not err in sending the case to the jury.

II. Exclusion of Comparable Materials

Brouwer further contends the trial court erred in refusing to admit material

comparable to AGB2 as evidence of the requisite community standard. We find no error.

The determination of whether certain materials are “obscene” lies within the province of the jury. For purposes of our dissemination statute, material is deemed obscene if:

(1) to the average person applying contemporary community standards, the material depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (C) of this section;

(2) the average person applying contemporary community standards relating to the depiction or description of sexual conduct would find that the material taken as a whole appeals to the prurient interest in sex;

(3) to a reasonable person, the material taken as a whole lacks serious literary, artistic, political, or scientific value; and

(4) the material as used is not otherwise protected or privileged under the Constitutions of the United States or of this State.

§ 16-15-305(B). The “community standards” to be employed by the jury in “determining prurient appeal and patent offensiveness are the standards of the area from which the jury is drawn.” Id. at (E).

Before trial, Brouwer requested a preliminary ruling on the admissibility of materials comparable to AGB2 to show the video fell within the ambit of Cherokee County’s contemporary community standards. The trial court, finding the mere availability of similar materials in the community did not demonstrate community acceptance, refused to admit the exhibits but permitted Brouwer to proffer the evidence for appeal.²

The admissibility of allegedly comparable materials in an obscenity trial is an issue of first impression in this state. Although decisions from other jurisdictions are not entirely uniform, the vast majority of state and federal courts have concluded such evidence is admissible subject to the predicate test for admissibility found in Womack v. United States, 294 F.2d 204 (D.C.Cir.1961), cert. denied, 365 U.S. 859, 81 S.Ct. 826, 5 L.Ed.2d 822 (1961). We agree evidence of comparison material generally is admissible to assist a jury in determining the prevailing community standards it must employ in evaluating allegedly obscene material. See Hamling v. United States, 418 U.S. 87, 125, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (“[Jjust as a defendant in any other prosecution, [a defendant in an obscenity case] is entitled to an opportunity to adduce relevant, competent evidence bearing on the issues to be tried.”); Smith v. California, 361 U.S. 147, 165, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959) (Frankfurter, J., concurring) (“[I]n determining what constitutes obscenity, it surely must be deemed rational, and therefore relevant to the issue of obscenity, to allow light to be shed on what those ‘contemporary community standards’ are.”) (internal citation omitted); Flynt v. State, 153 Ga.App. 232, 264 S.E.2d 669, 674 (1980) (“[W]e are persuaded that evidence which satisfies the Womack test is relevant, probative evidence which should be admitted in an obscenity trial for the consideration of the trier of fact.”). As our sister court stated in Flynt v. State:

The rationale behind the admission of “comparative” evidence is to allow the defendant in an obscenity case the opportunity to attempt to persuade the trier of fact that the challenged material does not exceed contemporary community standards, as represented by the comparable material and against which the challenged material is judged. The comparative material is tangible evidence of contemporary community standards.

Flynt, 264 S.E.2d at 674.

Such evidence, however, should not be admitted in the absence of a proper foundation ensuring its probative nature. See United States v. Pinkus, 579 F.2d 1174, 1175 (9th Cir.1978) (“[T]here are foundational requirements for admissibility of such evidence that have evolved as logical indicia of its materiality and relevance.”); United States v. Womack, 509 F.2d 368, 377-78 (D.C.Cir.1972) (“Womack merely requires an adequate foundation to be laid for the introduction of comparison evidence____ The burden is on the defendant and in the absence of such ¿ showing, the evidence must be excluded as lacking sufficient probative value.”) (footnotes omitted); State v. Wages, 483 N.W.2d 325, 327 (Iowa 1992) (“[Womack] foundational requirements ... 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 have some actual probative weight upon the issue of fact under consideration.”); see also Rule 401, SCRE (“ ‘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.”); Rule 402, SCRE (“All relevant evidence is admissible, except as otherwise provided____”).

The “Womack test,” as it has come to be known, requires a proponent of comparison materials to lay a foundation prior to introducing them into evidence by showing: (1) the materials being compared are in fact “similar,” and (2) the comparison materials enjoy a “reasonable degree of community acceptance.” Womack, 294 F.2d at 206. In determining “similarity,” the trial court must review the proffered material to see if it reasonably resembles the material which the State alleges to be obscene. See Flynt, 264 S.E.2d at 676 (stating the “similarity” of comparable material is governed by its “reasonable resemblance” to the material at issue) (quoting Pinkus, 579 F.2d at 1175). Here, the State stipulated that the items Brouwer sought to introduce were sufficiently similar to AGB2 to meet the first prong of the Womack test.

The trial court also took judicial notice “that materials that may be very similar to [AGB2 ] are available to anybody.” However, “[m]ere availability of similar material by itself means nothing more than that other persons are engaged in similar activities.” United States v. Manarite, 448 F.2d 583, 593 (2d Cir.1971); see Hamling, 418 U.S. at 125-26, 94 S.Ct. 2887 (“The availability of similar materials on the newsstands of the community does not automatically make them admissible as tending to prove the nonobscenity of the materials which the defendant is charged with circulating.”). Consequently, evidence of “mere availability of similar materials is not by itself sufficiently probative of community standards to be admissible in the absence of proof that the material enjoys a reasonable degree of community acceptance.” Manante, 448 F.2d at 593. As a preliminary matter, therefore, the trial court must distinguish between a defendant’s showing of “mere availability” and that of “a reasonable degree of community acceptance.” Womack, 509 F.2d at 379-80; see State v. Johnson, 104 N.M. 430, 722 P.2d 681, 682 (Ct.App.1986) (“The fact that sexually explicit material was obtained in a particular locality does not establish a reasonable degree of community acceptance.”); Flynt, 264 S.E.2d at 673 (“[Availability] is no indication that the average person, applying contemporary community standards, would not consider the [ ] magazines [in a particular case] to be obscene.”).

As noted in Womack, “a determination of the precise point at which a publication is so widely sold and is so generally available in the community as to warrant a finding of community acceptance is difficult to fix with assurance.” Womack, 509 F.2d at 379. Clearly, it is insufficient to offer comparables alone, as such material is not relevant in the absence of additional evidence tending to prove its “acceptance” in the community.³ See id. (“[I]t is not difficult to identify that which clearly does not even approach an appreciable level of community acceptance and to exclude that material as possessing so little probative value as to serve only to impede the resolution of the issues.”); State v. Johnson, 104 N.M. 430, 722 P.2d 681, 682-83 (Ct.App.1986) (affirming trial court’s refusal to admit for comparison an adult magazine purchased from a bookstore near the defendant’s establishment, where the defendant offered no evidence concerning the extent of the publication’s local distribution; the court held defendant’s evidentiary proffer “went to ‘mere availability* rather than to ‘a reasonable degree of community acceptance’ ”). Thus, courts have held the Womack foundation requirement may be met by supplementing the comparable material with expert testimony,⁴ sales figures,⁵ and possibly public opinion polls regarding the precise material in question.⁶

In the instant case, Brouwer attempted to introduce material similar to AGB2, which he claimed was widely available in Cherokee County via the internet and DirecTV. While we agree such evidence could be admissible in an obscenity prosecution, here Brouwer tendered no proof the items offered enjoyed a reasonable degree of acceptance in the local community, such as expert testimony or cable, internet or satellite television provider subscription and sales records.⁷ Accordingly, because Brouwer failed to lay a proper foundation establishing the relevance of the proffered materials, the trial court did not err in excluding the evidence.⁸ See Pinkus, 579 F.2d at 1175 (“Whether a foundational showing is sufficient to meet the second prong of the [Womack ] test [in the first instance] is a matter for the trial judge to determine as he has ‘wide discretion whether to permit the introduction’ of comparable materials.”) (quoting Womack, 509 F.2d at 378); see also State v. Fulton, 333 S.C. 359, 509 S.E.2d 819 (Ct.App.1998) (an evidentiary ruling of the trial court will be reversed only upon a demonstrated abuse of discretion resulting in prejudice).

III. Sentence

Finally, Brouwer claims the trial court, in passing sentence, improperly considered the fact that he exercised his right to a jury trial. We agree.

After the jury returned its verdict, Brouwer, pursuant to Davis v. State, 336 S.C. 329, 520 S.E.2d 801 (1999), asked the court to impose a sentence comparable to that given Wendy Kaplan, his co-worker and co-defendant who pled guilty immediately before trial. Because the two were similarly situated in that both were newly hired and trained store clerks with no prior criminal record, and both were convicted of disseminating the exact same material, Brouwer argued for a proportionate sentence. The trial court declined the request, explaining that Kaplan received a more lenient sentence because she admitted guilt:

I’m a judge that gives serious consideration for someone admitting their guilt. I think that’s important____ I believe that’s the first step towards rehabilitation.... [T]here is no way in rhyme or reason for us to ever give a sentence for someone pleading guilty the same sentence for a jury trial. Then we have ignored the fact that a person has admitted their guilt____ And ... I will take [that] into consideration in imposing this sentence, because it is not an admission of guilt.

In Davis, our supreme court found an attorney rendered ineffective assistance of counsel when he failed to object to nearly identical comments by the trial court. In response to the defendant’s request for a sentence comparable to two co-defendants who pled guilty, the court there stated:

Yes, ma'am, but [Davis] didn’t plead guilty. Those' other two people, they pled guilty. They admitted what they had done and to me that’s the first step towards rehabilitation ....

Davis, 336 S.C. at 332, 520 S.E.2d at 802. In granting Davis post-conviction relief, the supreme court held:

In response to [Davis’] argument, the trial judge unequivocally stated that the other defendants had, in fact, pled guilty. The trial judge further expressed his preference for guilty pleas by explaining that such admissions of responsibility were the first steps toward rehabilitation. We find these statements clearly revealed that the trial judge, in sentencing [Davis], improperly considered [his] decision to proceed with a jury trial.

Id. at 333, 520 S.E.2d at 803.

We find the trial court’s comments in this instance indistinguishable from those expressly disapproved in Davis. Although the court herein also stated it had never, and never would, “punish someone for exercising their right to a jury trial,” we believe the mere disavowal of wrongful intent cannot remove the taint inherent in the court’s commentary, especially since the record fails to reflect an otherwise appropriate basis for Brouwer’s disparate sentence. See id. at 332, 520 S.E.2d at 802 (finding trial court’s sentencing rationale impermissible, despite fact that court concluded comments by stating “and when a fellow wants a trial [ — ] which he’s entitled to as a matter of law — [ ] that’s fine”). Accordingly, we reverse Brouwer’s sentence and remand for resentencing. See State v. Hazel, 317 S.C. 368, 370, 453 S.E.2d 879, 880 (1995) (remanding case for resentencing hearing where the trial court “relied heavily on [Hazel’s] exercise of his right to a jury trial” in refusing a YOA sentence by stating, “Well, it’s one thing, if he’d pled guilty, I’d have considered that ... ”).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

HUFF, J., concurs. ANDERSON, J., dissents in a separate opinion.

1 . Material may be “obscene” if it depicts specifically defined sexual conduct, including inter alia: actual or simulated vaginal, anal, or oral intercourse; masturbation; lewd exhibition of male or female genitals; touching, caressing, or fondling of covered or exposed genital or anal regions for actual or apparent sexual stimulation or gratification. See S.C.Code Ann. § 16-15-305(0(1) (Supp.2000).

2 . The preferred items, all sexually explicit, included a compilation videotape recorded from satellite broadcasts via DirecTV; video clips downloaded from the internet onto compact disc; and two videos, Young Tails and The Squirt is on the Hunt, whose rental or purchase from Bedtyme Stories by undercover officers never resulted in any arrest or prosecution.

3 . Applying the Womack test, numerous other states have come to the same conclusion. See, e.g., Baird v. State, 12 Ark.App. 71, 671 S.W.2d 191 (1984); Flynt v. State, 153 Ga.App. 232, 264 S.E.2d 669 (1980); State v. Wages, 483 N.W.2d 325 (Iowa 1992); State v. Carlson, 291 Minn. 368, 192 N.W.2d 421 (1971); City of Sioux Falls v. Mini-Kota Art Theatres, Inc., 247 N.W.2d 676 (S.D.1976); State v. Rice, 790 S.W.2d 296 (Tenn.Ct.App.1989); State v. J-R Distrib., Inc., 82 Wash.2d 584, 512 P.2d 1049 (1973).

4 . See United States v. Womack, 509 F.2d 368 (D.C.Cir.1972); Pierce v. State, 292 Ala. 473, 296 So.2d 218 (1974); Flynt v. State, 153 Ga.App. 232, 264 S.E.2d 669 (1980); City of Sioux Falls v. Mini-Kota Art Theatres, Inc., 247 N.W.2d 676 (S.D.1976).

5 . See Pierce v. State, 292 Ala. 473, 296 So.2d 218 (1974); Flynt v. State, 153 Ga.App. 232, 264 S.E.2d 669 (1980). A proponent must be careful, however, to offer appropriate sales figures as opposed to distribution. See Flynt, 264 S.E.2d at 676 (rejecting testimony from chief financial officer of magazine distributor regarding distribution figures for 324 county retail stores because such figures indicated only the number of magazines available at newsstands and other outlets and nothing more).'

6 . See Flynt v. State, 153 Ga.App. 232, 264 S.E.2d 669 (1980). Although Flynt affirmed the trial court’s refusal to admit the results of a public opinion survey, the court indicated this was because the poll "merely inquired as to general opinions concerning the depiction of ‘nudity and sex,’ ” and the results, therefore, "were not relevant to the issue” of whether the particular magazines at issue were obscene. Id. at 672.

7 . Although Brouwer did proffer a compilation of some thirty photocopied register receipts reflecting purchases and rentals of sexually-oriented items by Bedtyme Stories' customers, such "self-selected” evidence falls far short of the requisite showing to establish community acceptance. See State v. J-R Distrib., Inc., 82 Wash.2d 584, 512 P.2d 1049, 1083 (1973) (en banc) (finding defendant theater failed to show a reasonable degree of community acceptance by proffering a police officer’s testimony that a dozen or so other local theaters were exhibiting similar films; court found proposed evidence "involved such a microscopic portion” of community residents, "severely limited both as to area and numbers of people,” that it "could not have been relevant to establish contemporary community standards”). Moreover, Brouwer’s attorney specifically declined the trial court’s offer to allow expert testimony on the matter, stating "Well, I don’t know if that’s necessary at this time, Your Honor. I'll move on to the next issue.”

8 . Brouwer also asserts other videos, "confiscated" from Bedtyme Stories and reviewed by Cherokee County law enforcement officials without subsequent prosecution, should have been admitted "as an accurate barometer of community acceptance.” This contention is meritless. As the second Womack court noted, the "mere failure to prosecute does not begin to constitute a sufficient showing of [the Womack foundation requirement].” Womack, 509 F.2d at 380; see also State v. Thrift, 312 S.C. 282, 291-92, 440 S.E.2d 341, 346 (1994) ("Both the South Carolina Constitution and South Carolina case law place the unfettered discretion to prosecute solely in the prosecutor’s hands.”) (footnotes omitted).