State v. Schamma

659 S.W.2d 589, 1983 Mo. App. LEXIS 4296
CourtMissouri Court of Appeals
DecidedOctober 11, 1983
DocketNo. 46610
StatusPublished
Cited by9 cases

This text of 659 S.W.2d 589 (State v. Schamma) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Schamma, 659 S.W.2d 589, 1983 Mo. App. LEXIS 4296 (Mo. Ct. App. 1983).

Opinion

REINHARD, Judge.

Defendant was charged in a six count information. He was found guilty under Count I of promoting pornography in the second degree, § 573.030, RSMo.1978; under Count III of transferring a eoncealable firearm without a permit, § 571.080, RSMo. Supp.1983; and under Counts IV, V and VI of promoting pornography in the first degree, § 573.020, RSMo.1978. The jury assessed punishment at one year imprisonment on Count I, $1,000 fine on Count III, two years on Count IV, two years on Count V and three on Count VI. The court sentenced defendant in accordance with the jury verdicts and ordered the sentences served concurrently. He appeals his sentences under Counts IV, V and VI. We affirm.

The defendant operated a bar called Mr. Ed’s Tavern in Farber, Missouri. On December 27, 1981, Robert Simcox, an undercover police officer, was retained by the sheriff of Audrain County to investigate the alleged sale of pornographic films. Pursuant to that investigation, the officer made a series of film purchases from defendant which culminated in defendant’s arrest.

On December 27,1981, the officer entered defendant’s tavern and indicated an interest in purchasing films. Defendant produced three films wrapped in newspaper. He wanted thirty-five dollars a piece, but eventually sold all three for fifty dollars. When the officer inquired as to the consent of the films, the defendant replied that whatever was depicted on the film carton was in the film. The cover on each box did contain a color photograph. This sale was the basis for defendant’s conviction for promoting pornography in the second degree, as set forth in Count I of the information.

During this transaction, the officer also asked if he could obtain additional films of this nature, and was advised by the defendant that defendant could obtain films of whatever the officer wanted and in whatever quantity desired. Consequently, on January 2, 1982, the officer inquired about purchasing films in quantities of at least ten. Officer Simcox explained that if defendant sold the films for less than thirty-five dollars apiece, Simcox could make more money since he had a good market. The parties thereafter agreed to the sale of ten films for twenty-five dollars each.

On January 9, 1982, the officer returned to the bar and, as previously agreed, purchased ten films from defendant for $250.00. The film transfer took place in defendant’s truck, after defendant had driven some distance from the tavern. Each of the film reels involved in this transaction was in a box, with a photograph on the box cover. This purchase constituted the basis for his conviction for promoting pornography in the first degree, as set forth in Count IV.

On January 23, 1982, the officer purchased two additional films from defendant, which comprise Count V. Again, the box cover for each film contained a photograph. During this transaction, officer Simcox asked defendant to sell him a large quantity of films — approximately 100 to 150 movies. Defendant agreed and set a price of $1731 for 100 films.

To close the sale, the officer went to the tavern late the following night; the transaction took place in the early morning hours of January 25, 1982. In the course of the transaction, defendant described the film as being the same type previously purchased by the officer, along with “some animal type film.” Moreover, the defendant again reiterated that the photographs on the boxes depicted the nature of the films. In response to Simcox’s statement that he was [591]*591reselling the films, defendant offered to replace any film that Simcox’s customers found unsatisfactory since he did not like to sell bad merchandise.

The films involved in this transaction were brought into the tavern by defendant and another person in two cardboard boxes after closing hours. Defendant said there were eighty-four films, some being doubles, but he assured the officer that the number was equal to one hundred reels of film. Defendant demanded payment of $1851 for the films and instructed the officer to pay the other man. This sale comprised Count VI.

The defendant testified that he had never viewed any of the films. His comments to the officer about the film contents were based on what the pictures on the boxes depicted. Nevertheless, he testified that he did not want his tavern customers to know that he was selling such merchandise. That was why he wrapped the films in newspaper and why the other sales took place either away from the tavern or after it closed. He further contended that he had no reason to believe that Simcox was purchasing the films for anyone other than himself.

On appeal, defendant asserts that there is insufficient evidence of his wholesale promotion of pornographic materials, as is required to establish a violation of § 573.020. He contends that he should instead be charged with the misdemeanor of promoting pornography in the second degree. § 573.030, RSMo.1978.

Section 573.020 provides in pertinent part:

1. A person commits the crime of promoting pornography in the first degree if, knowing its content and character:
(1) He wholesale promotes or possesses with the purpose to wholesale promote any pornographic material
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2. Promoting pornography in the first degree is a class D felony.

The thrust of defendant’s argument is that this provision is intended to apply to mass distributors of pornography and, furthermore, that even if the provision is applicable to him, there is no evidence that he knew that the films were purchased for resale.

The statute in this case defines “wholesale promote” as “to manufacture, issue, sell, provide, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, or to offer or agree to do the same for the purposes of resale.’’ § 573.-010(6), RSMo.1978. (emphasis added). The definition makes no reference to the law’s applicability to exclusively large scale distributors of pornography. Moreover, in its comment to § 573.010, RSMo.1978, the legislature has indicated that the “key words which distinguish ‘promote’ [a violation of § 573.030] from ‘wholesale promote’ [a violation of § 573.020] are ‘for the purpose of resale.’ ” Nowhere does the legislature indicate any intent to limit the law’s application to large scale operations. To the contrary, the comments indicate that the decisive factor is simply whether the defendant promoted the films in question for resale.1 It is, therefore, clear that the case before us comes within the scope of the provision. We decline to read into the statute words that would limit its application to large scale operations only.

Nor do we find merit to defendant’s contention that the evidence is insufficient to establish that the purchases in question were made for resale. Defendant makes [592]*592much of the fact that purchases subsequent to the initial misdemeanor transaction were at a higher per film basis. He contends that this destroys the inference of knowledge necessary to establish intended resale, since implicit in the term “wholesaling” is the notion that the wholesale price will be lower than that charged to the ultimate purchaser—Simcox in the initial sale. We find his point is groundless. The officer’s testimony was that he could profit at any price under thirty-five dollars.

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Bluebook (online)
659 S.W.2d 589, 1983 Mo. App. LEXIS 4296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-schamma-moctapp-1983.