State v. Frazier

683 S.W.2d 346, 1984 Tenn. Crim. App. LEXIS 2988
CourtCourt of Criminal Appeals of Tennessee
DecidedOctober 25, 1984
StatusPublished
Cited by28 cases

This text of 683 S.W.2d 346 (State v. Frazier) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Frazier, 683 S.W.2d 346, 1984 Tenn. Crim. App. LEXIS 2988 (Tenn. Ct. App. 1984).

Opinions

OPINION

TATUM, Judge.

Defendant, Francis Donna Frazier, was convicted of two counts and defendant Sharon Theresa Probst, was convicted of one count of presenting live obscene dances in violation of the obscenity statute (T.C.A. § 39-6-1104).

Punishment of each defendant on each count was fixed at sixty (60) days in the Shelby County Correctional Center. Frazier was manager of “The Follies,” a topless nightclub owned by Playgirl, Inc., which was also convicted but did not appeal. After considering the issues presented by Frazier and Probst, we affirm their convictions.

We first address defendant Probst’s issue attacking the sufficiency of the evidence. The accredited evidence established the following facts:

On May 29, 1981, John Mark DiScenza, a Memphis police officer assigned to a special task force investigating obscenity, went to the Memphis Topless Nightclub known as “The Follies” along with Assistant Shelby County Attorney General Kathleen Spruill, and a friend of hers known as Patty. That night DiScenza observed between twenty and twenty-five dancers, each performing three dances. Officer DiScenza saw Sheila Diane Perkins, known as “Heartbeat,” perform on stage and at a table dance. On stage, Ms. Perkins removed her clothing, fondled herself, and exposed her genitals to the customers. Ms. Perkins also rubbed her face between the legs of a male customer in an act of simulated oral sex.

Officer DiScenza testified that on that evening he also saw defendant Probst, whose stage name was “Dawn,” perform several stage dances. He described the dance:

“A. Okay. She would get up on stage like the other girls. They would call her name and she would get up. I don’t remember what she was wearing. I know she had a cowboy hat on and she would remove her clothing and come to the edge of the stage and she would spread her legs about three or four feet apart and squat down and spread her legs out like that and then took her hand and came on up and then she would stand back and turn around and bend over and expose her anal section toward the customers. She did this around the [349]*349stage. She probably did about three dances that night in the same manner.” He testified that she rubbed her vaginal area and her breasts. Frazier was manager of “The Follies” and sponsored these dances.

Defendant Probst insists that the evidence is insufficient to support a finding that she presented an obscene live performance in violation of T.C.A. § 39-6-1104. The record, however, contains sufficient evidence from which a rational trier of fact might conclude that she was guilty beyond a reasonable doubt of violating the obscenity statute. Rule 13(e), T.R.A.P.; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Nude dancing, while not in itself obscene, may become obscene when combined with certain sexual conduct such as lewd exposure of the genitals — e.g., Commissioner of Bldgs, v. Sidne Enterprises, Inc., 90 Misc.2d 386, 391, 394 N.Y.S.2d 777 (Sup.Ct.N.Y.Co., 1977). — or the fondling of one’s own breasts and vaginal area while dancing — e.g., People v. Better, 33 Ill. App.3d 58, 337 N.E.2d 272 (1975). The dancing of defendant Probst, as described by the above-summarized testimony of the State’s witness, included the rubbing of her own breasts and vaginal area, and further, could be said to constitute the lewd exposure of her genitals. This evidence was more than sufficient to present a jury issue as to the obscenity of her conduct. See Brazelton v. State, 550 S.W.2d 7, 9 (Tenn.Crim.App.1974).

The jury was properly instructed in accordance with the constitutional standards enunciated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) and T.C.A. § 39-3001 (now § 39-6-1101(5)), that

“ ‘Obscene’ means: (A) That the average person applying contemporary community standards would find that the work taken as a whole appeals to the pruient interest; (B) That the work depicts or describes, in a patently offensive way, sexual conduct; and (C) That the work, taken as a whole, lacks serious literary, artistic, political or scientific value.”

“A juror is entitled to draw on his own knowledge” of contemporary community standards in determining whether certain conduct is obscene, “just as he is entitled to draw on his knowledge of the propensities of a ‘reasonable’ person in other areas of the law.” Hambling v. United States, 418 U.S. 87,104, 94 S.Ct. 2887, 2901, 41 L.Ed.2d 590, 613 (1974). The jury’s finding in this case that the dancer’s conduct met the constitutional test of obscenity was amply supported by the evidence. This issue has no merit.

We next address defendant Frazier’s contention that the obscenity statute, T.C.A. § 39-6-1104, violates the First Amendment right to privacy because it im-permissibly prohibits private sexual conduct between consenting adults. We find this contention to be without merit, and re-affirm the statute’s constitutionality.

The United States Supreme Court has established that obscenity is not expression protected by the First Amendment. Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419, 430 (1973); Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498, 1507 (1957). In Leech v. American Booksellers Association, Inc., 582 S.W.2d 738 (Tenn.1979), the Tennessee Supreme Court adopted the federal constitutional standards on obscenity as outlined in Miller v. California, supra.

One of the primary justifications for obscenity regulation is the State interest in shielding juveniles and unconsenting adults from obscene material. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); however, obscene materials do not acquire constitutional immunity from State regulation merely because they are exposed solely to consenting adults. The State has “the power to make a morally neutral judgment that public exhibition of obscene materials, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize the State’s [350]*350‘right to maintain a decent society.’ ” 3 Wharton’s Crim.L. § 305 (14th Edition 1980) (quoting Jacobellis v. Ohio, 378 U.S. 184, 199, 84 S.Ct. 1676, 1684, 12 L.Ed.2d 793 (1964).

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Bluebook (online)
683 S.W.2d 346, 1984 Tenn. Crim. App. LEXIS 2988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-frazier-tenncrimapp-1984.