*1 Movies, Inc., corporation, Nebraska and TV appellee, Cats, Inc., al., et County Intervenors-Appellees, Wellman, v. Michael Attorney, County, Nebraska, appellee, Stenberg, and State of Nebraska ex rel. Don Attorney Intervenor-Appellant. General, 2d 598 N.W. 754 27, 1999. August Filed No. S-98-102. *2 General, and William L. Howland

Don Stenberg, Attorney for appellant. Jerram, Kelley, Christopher

Michael A. D. Kelley Hall, P.C., Main & and Richard J. Dinsmore for appellee Lehan Movies and intervenors-appellees. Street Hendry, C.J., Connolly, Gerrard, Wright, Stephan, JJ. Miller-Lerman, McCormack, Wright, J. CASE

NATURE OF Movies, (Main Street), Main Street Inc. this action brought 28-801 declaratory judgment for Neb. Rev. Stat. et pursuant 28-820, 1995), Michael (Reissue against seq. specifically § Wellman, Main a determi- Attorney. sought Street Sarpy County certain movies depicting nation whether videotape explicitly acts, of sexual which movies Main Street offered for variety and sale to were criminally rental the public, OF REVIEW

SCOPE An for declaratory judgment generis, action is sui or one such action is to be treated one at law whether Main be determined the nature dispute. is to equity 367, 557 Wellman, Street Movies N.W.2d J). (Main

When the is whether an item question issue presented for selling in the sense that it available making is obscene statute, rental would violate a criminal we review such matter as a criminal case at law. Id.

FACTS Main Street is a business located in Sarpy County engaged in the rental and sale of A movies. videotape portion Main Street’s has sexually been avail- inventory explicit able for rental and sale at Main Street for approximately years. movies are sexually explicit segregated from movies in the store so adults have access to them. If a only material, movie’s case sexually Main Street depicts explicit its removes the movie from case. Main Street contends that it

has to not rent movies which violence attempted portray women or which involve sexual with activity children.

There few to the complaints regard operation time, Main Street’s business until the At spring of 1990. named for group Decency” began “Omahans complain Sarpy County about the rental and sale of sexu- Attorney these however, ally movies. The explicit county declined to attorney, prosecute Street.

In the fall of Omahans for contacted the Decency office of the Attorney Nebraska General. In October the Street, General’s office sent letter Attorney to Main directing it to cease the sale and rental of all sexually explicit movies which were obscene. Main to responded Attorney General and then filed a action declaratory judgment against 28-820, Sarpy to County Attorney a deter- pursuant seeking mination whether the sexually movies which it explicit offered for and rental sale were obscene.

The State of ex rel. Nebraska Don Stenberg, Attorney General, intervened as a defendant. the district Subsequently, court determined that the State an in the had outcome of Cats, its TV litigation petition and sustained for intervention. Inc.; Inc.; Movietime, Inc., inter- Vichaty, were to permitted vene as plaintiffs. trial,

Following bench the district court entered a judgment that some of the declaring movies issue were criminally obscene. The State that to the challenged ruling appealed Court We the State’s granted petition Nebraska of Appeals. and remanded judgment, the district court’s reversed bypass, See Street I. matter for further proceedings. /, as an Attorney was called Sarpy County

In Main Street attor- objection, county Over plaintiffs. witness expert County the views actively Sarpy had sought said he ney and sale adult movies rental concerning residents were County that the residents related matters and with chil- violence and sex depicting to material sexual opposed children, dren, did not did not adult material available want adult-only and theaters want bookstores adult-only mind if sold or rented adult but did not video stores places, as a that the admission of material side business. We concluded error, since the county attorney testimony prejudicial that this should expert. testimony did not as an We stated qualify been an of the com- expression not have taken as contemporary instead, standard, but, how merely account of munity reached conclusion not to those county attorney prosecute movies county. businesses adult in the We selling renting fur- therefore reversed the and remanded the cause for judgment ther proceedings. remand,

On the evidence adduced at the trial was reof- first received, held, fered and and the matter was arguments movies, the found reviewing submitted. After district court clearly that exhibit a movie entitled “Takin’ It had Jury,” or artistic Exhibit movie entitled literary serious value. III,” Throat was also found to have “serious value.” As to “Deep videos, the remainder stated: the court I the evidence in this case beyond conclude establishes #14 and #44 a reasonable doubt Exhibits are obscene show, beyond material. I conclude that the evidence fails doubt, #6, #7, #11, #8, #9, #12, a reasonable that Exhibits #13, #17, #36, #15, #16, #34, #35, #37, #46 ERROR

ASSIGNMENTS OF *4 error that assigns On the State the district court appeal, the had the (1) erred State burden of finding proving obscene, (2) a doubt movies reasonable that the beyond by to certain identified to be failing find movies State obscene, in its concerning ruling opinion testimony offered the State. by

ANALYSIS Section 28-820 provides: exhibits, distributes, person who is

Any sells about exhibit, work, material, to sell or distribute... conduct shall, or live if has performance person genuine such doubt work, material, as to the of whether such question conduct performance live is in fact within terms provi- 28-829, sions of sections to have the to right 28-807 bring action court for declaratory district judgment under Uniform Act for Declaratory Judgments ... a work, judicial determination as to whether or not such material, conduct or live performance is obscene. The State asserts district court erred in that the State had the burden a proving beyond reasonable doubt that movies obscene. a Since review this matter as crimi law, I, nal case at see the State required prove obscene, beyond reasonable doubt that the material is see v. Conboy, Inc. ante Tipp-It, p. addition,

In 28-820 allows action to declaratory judgment § be consolidated awith action pending brought pursuant 28-816 to 28-818. Prosecutions §§ based obscene litera- upon ture or material are criminal and require nature the State to prove beyond reasonable doubt that the literature or material is obscene. It would be totally inconsistent with provisions the criminal code if the standard of in 28-820 was proof less than standard of criminal proof for prosecutions regarding Thus, obscenity. State bears the burden of proving beyond a reasonable doubt all three elements of obscenity, and we find that this assignment error is without merit.

nextWe to a proceed determination whether the mate rial obscene. The State district court erred argues by failing find certain movies identified the State to be is not within area Obscenity of constitutionally therefore, protected obscene be speech, material may pro hibited or otherwise without regulated the First offending Amendment to the U.S. Constitution. State *5 States, Roth v. United on (1999), relying 593 N.W.2d (1957). 2d 1498 1 L. Ed. Ct. 77 S. 354 U.S. in term “obscene” defined the has Legislature The 28-807(10) as follows: § (a) average person applying that an shall mean

Obscene would find standards community contemporary conduct, material, as a work, live taken performance or interest or a to the prurient appeals whole predominantly excretion, sex, or in nudity, or morbid shameful conduct, material, work, live or performance (b) sexual con- way in offensive describes a patently or depicts 28-829, in sections 28-807 duct set out specifically conduct, material, work, or live taken (c) performance artistic, or political, serious literary, as a whole lacks value. scientific Amendment stan with the First

This definition is coextensive California, in Miller v. S. Ct. 413 U.S. dard established 2607, 37 See, also, L. Ed. 2d 419 State materials must be designed regulate carefully Statutes limited. Miller v. California, supra. The permissible scope work, material, conduct, confined to or live regulation such is or in a offensive patently which describe performances depict in set out 28-807 to way sexual conduct specifically §§ 28-829. The has defined the sexual conduct that Legislature may masturbation, 28-807(15) as “acts of homo regulated be intercourse, or sexuality, sodomy, sexual prolonged physical contact with a clothed or unclothed person’s genitals, pubic or, area, female, or if such person buttocks breast.” We first review the material to determine independently whether material or describes question depicts patently offensive sexual conduct be may regulated. Court Miller gave plain two of what a state statute could examples (1) define for regulation: patently offensive representations acts, of ultimate sexual normal or descriptions actual perverted, simulated, offensive patently representations masturbation, functions, descriptions excretory and lewd Therefore, exhibition of the genitals. our initial is not inquiry obscene, whether the material but whether the material or describes depicts patently offensive sexual conduct that may not, If be as set forth Miller. the material does then regulated as a matter of law the material cannot found to be be

For of our analysis, designate purposes independent A review A.” Part “part independent review conducted by “ court in First Amendment is intended ‘both appellate cases to be speech sure that the within the question actually falls unprotected and to category confine perimeters unprotected within category acceptably narrow limits in an ” effort to ensure that will not be inhibited.’ protected expression *6 256 Neb. at 593 at N.W.2d Bose quoting S., Inc., 485, v. Corp. Consumers Union 466 U.S. 104 S. of U. 1949, (1984). Ct. 80 L. 2d Ed. 502 review, In A of part our is on initial focus the substan tive content of the material. If we determine as a matter lawof that the material or describes of depicts patently offensive types sexual conduct that be see may regulated, Miller v. California, supra, then we proceed with what we B” designate of our “part whether, B analysis. fact, Part is concerned with as a matter of the material taken as a whole predominantly appeals to sex, or prurient interest a shameful or morbid interest in nudity, excretion, offensive, B(l); or part is patently B(2); part artistic, value, lacks serious literary, political, scientific part B(3), 28-807(10). as set forth in Part B § adopts three-prong framework announced in Miller v. California, supra. B(l)

Part incorporates contemporary community 829, In standards. State v. 256 Neb. 593 N.W.2d 299 (1999), we stated that the trier of fact is obviously better suited determine limits of tolerance in particular community regarding test and the patently offensive test and that a court should reviewing give due deference to the find ings of the of trier fact these factual regarding essentially deter Thus, in B(l) minations. our review of part (2), for pur pose of declaratory judgment, we substitute our for findings those of the trier of fact only if we conclude that the trier of fact’s determination is clearly See Woodmen the wrong. World Yelich, 345, v. Ins. Soc. 250 (1996). Life B(3), In part determination of the trier of fact con the test in cerning portion California, Miller v. 413 U.S. 93 S. Ct. Ed. (1973), 37 L. 2d 419 as to whether the artistic, literary, political, lacks serious as a whole work taken value, by this court after weighed independently scientific Harrold, supra. State v. relevant evidence. review the de novo States, L. Ct. U.S. 97 S. v. United In Smith that this por- Court noted (1977), Supreme the U.S. Ed. 2d 324 review, for susceptible is more appellate Miller test tion of the to contem- by determined reference of a is not work “value” Illinois, 481 U.S. See Pope standards. community porary Since the appellate 2d 439 L. Ed. 107 Ct. S. issue that is on this authority expertise possesses fact, give we need not defer- of the trier of least to those equal Thus, on question. trier of fact conclusions ence to the work, B(3), weighed independently part the “value” State v. novo of the relevant evidence. after a de review law we conclude as a matter of A of our part analysis, Under or describe the of sex- depict types movies in question that the in Miller v. be as delineated may regulated ual conduct that 28-807(15). The movies received California, supra, sexual the district court involve actual simulated evidence including, sexual conduct but depict acts which or describe masturbation, intercourse, to, and sexual which limited sodomy, of fact find be obscene. the trier could B(3), B. We first address since proceed part part We next *7 that order in which the trial court considered the material. is the the The determined that exhibit “Takin’ It to district court literary or artistic value and that exhibit Jury,” has serious and, therefore, III,” Throat “serious found as a has value” “Deep matter of law that these movies are not obscene. ‘Takin’ It to the the deliberation of a in an Jury” depicts six-person jury jurors The obscenity community-standard case. discuss when they discuss scenes of the requirements, specific they movie that for reviewing obscenity, jurors various fan- tasize about themselves similar scenes. B(3), on our de novo review of

Based we conclude that part did a State reasonable doubt that “Takin’ prove beyond artistic, It to Jury” lacked serious or any literary, political, scientific value. The movie to be an appears by the attempt pro- in the ducers instruct viewers basics obscenity law regarding lack of political commentary validity useful- Therefore, affirm ness of we laws. determination obscenity made B(3) the district court under by as exhibit 9. part who, Throat III”

“Deep depicts young woman upon having encounter, her first sexual that discovers her throat swells when attention, she is aroused. medical sexually Seeking she told that she her has tumor on It is later discovered she larynx. that is the daughter the erotic film actress who starred movie entitled Throat” and that she has her “Deep inherited mothér’s clitoris her abnormality throat. Based our upon —a review, de novo which we the relevant independently weigh evidence, we conclude the district court erred artistic, exhibit 46 has serious or literary, political, scientific line, value. the movie Although story contains we cannot con- clude that movie has Nor persuaded by value. are we fact that the State’s expert witness testified that the movie has some serious or artistic value. The State’s testi- literary witness’ was mony equivocal.

However, our conclusion that this movie does not have seri- artistic, ous or literary, scientific value does not result political, Instead, in a determination movie obscene. note that the district found that the State had not proved beyond a reasonable doubt that exhibit 46 is All three prongs test, (2), Miller which we have as designated part B(l), (3), must be a reasonable proved beyond doubt before a movie is considered obscene. State v. 256 Neb. court found district that the State had failed prove 6,7, 9,11,12,13,15, beyond a reasonable doubt that exhibits 16, 17, 34, 35, 36, 37, order, and 46 are obscene. In its the dis- fact, court, trict the trier considered each of the movies pre- sented. The court found that movie each submitted as evidence into five or six segmented Each parts vignettes. part vignette involving one or more contained scenes of the follow- intercourse, masturbation, ing sexual activities: sexual lesbian- ism, cunnilingus, and fellatio.

The court found that

the existing standard in contemporary community County permits presence sexually explicit films for sale rent on the plaintiffs conditions: following *8 relations; (2) violence in sexual (1) The films do not depict children or not sexual relations with depict The films do members; (3) The films do not sexual rela- depict family animals; (4) The films are not available to tions with minors; not in a manner or displayed The films are viewed, in in whole or part, by where be they might place adults. non-consenting court then described the movies as containing The trial “ unabashed, sex, doing no-holds-barred eager, ‘[u]nbridled — oral, manual, anal, heterosexual, sex vaginal,

of raw — homosexual in and worrisome multiple positions repetition. It crude passion, exaggerated by is a expression primitive offensive full-screen of the sex in close-ups parts patently manner, the movies in this describing action.’” After court stated:

There individual scenes in film that practically every are troublesome, offensive, can be as disgusting, described but, are determining they whether pornographic; obscene, whole, and, each film must be considered as a so, I doing conclude that appropriate] description [the the scenes “ridiculous” or “siÜy” .... [is] court, whether the We are sure trial relying upon standard which it found to exist in contemporary community interest, County, standard to the applied prurient part offensive, B(l), B(2), or the patently part the Miller test. Both at oral that the trial court’s parties argued arguments finding was However, to the regard portion test. what is relevant is that applying contemporary community standard, the court found that the State failed to prove beyond reasonable doubt that the films are obscene.

We give due deference to the trier of fact’s findings B(l) (2), relation to will part reverse such findings if See State only they clearly wrong. The court, fact, district as the trier of acting determined that the con standard temporary community accepts sexually movies explicit violence; as those movies do not long depict sexual relations children, members, animals; family are not available to minors; and are in such displayed a manner that are visible they only adults. court’s consenting findings relating *9 of exposure sexually minors to movies and the manner explicit in which these movies are reflect the displayed community’s materials, about of preference explicit but accessibility sexually are not determinative of whether a work is given

Although in State v. 256 Neb. (1999), we of finding affirmed the trier fact’s that the visual of man depiction inter masturbating appealed prurient est, we do not that of compare finding by to trier fact in this case. must be Contemporary standards community in applied with their by juries understanding accordance own of the tolerance of the in their is average community. It not person simply the own reaction to the con jurors’ subjective material or States, 291, 97 duct See Smith v. United 431 depicted. U.S. S. Ct. 1756, 52 L. 2d (1977). Ed. 324 The trier of fact is bet obviously ter suited determine limits of tolerance com particular test, reason, munity regarding and for this due give deference the trier of fact. v. State verdicts as of Consistency jury identical obscenity materials is constitutionally not Miller required. California, 413 (1973). U.S. 93 S. Ct. 37 L. 2d 419 Ed. The same materials, is true of verdicts as to their separate regardless of States, similarities. v. United 418 U.S. 94 Hamling S. Ct. 2887, 41 L. Ed. 2d 590 A fact finder cases obscenity permitted to draw on knowledge community or vici- nage he or she deciding which comes in what conclusion from “ ‘the average person, applying stan- contemporary community ” dards,’ States, could reach in a given case. v. United Hamling standard, 418 U.S. 104. Based we cannot upon say court, fact, as the trier was clearly wrong.

The district court did find 14 44 exhibits and to be obscene. 14 44 Exhibits portray sexual relations between family members combine violence The with sex. that found such behaviors offended the contemporary community standard which the trier of fact found to exist in County. No cross- filed, therefore, appeal any alleged error regarding 44 exhibits properly before this court.

Finally, the State that argues the district court in con- erred sidering comparable evidence. Specifically, State argues the court erred admitting exhibits through 23. State material is available sexually fact explicit contends that with materials comply that those does not places prove standards. community contemporary from trial, several items obtained At proffered box large in the state. Exhibit is a stores other adult-oriented entitled Exhibit 19 is movie filled with sexual paraphernalia. Combos,” it contains 48 sexual advertises that “Colossal which several still pho- that holds this movie displays scenes. The case 20 is a with a Exhibit movie sexual scenes. tographs explicit of sexual scenes. has numerous photographs case which which have cases Exhibits and 23 are movies on When ejaculating of men women. dozens of photographs offered, on the to these exhibits objected State they under district court took the matter relevancy, ground *10 relevancy The court overruled the objection advisement. exhibits for a limited purpose. admitted the case, error in civil the admis To constitute reversible a substan or must a unfairly prejudice sion exclusion of.evidence or about evidence admitted right litigant complaining tial of 224, Co., v. excluded. Radecki Mutual Omaha Ins. 255 of the of (1998). 583 N.W.2d 320 We conclude that admission order, 23 error. In court through exhibits 18 was its district con noted exhibits received not as evidence of the that the standard, but of that as evidence material temporary community not under the standard of acceptable community was of in and of An exhibit materials not County. comparable itself to demonstrate stan community admissible contemporary of similar Availability dards material issue. regarding more that nothing persons material itself means than States, in 418 engaged are similar activities. v. United Hamling conclude, (1974). 94 Ct. 41 L. Ed. 2d We U.S. S. 590 however, the error in this evidence was harmless. admitting find- the State’s of error and

Having assignments considered merit, no we affirm the the dis- ing judgment have they modified. trict court as

Affirmed as modified. Connolly, J., dissenting.

I with the conclusion that the trial court disagree majority’s wrong person, in that an clearly finding average apply-

571 standards, find would exhibits ing contemporary community 8,7, 9,11,12, did not interest. appeal exhibits involved the visual trial court found the above depiction fellatio, cunnilingus, of heterosexual and homosexual tion, masturba- intercourse, all, “[a]ll, and anal and vaginal nearly male(s) ejaculating, culminate with involved usually [which] female(s) on the or facial area of the involved.” pubic I recognize finding that when reviewing concerning “pruri- interest,” court ent evidence, an does not resolve conflicts appellate witnesses, on the of the

pass credibility rewéigh evidence; an court will substitute its for that findings appellate if the trier of concludes that the fact only appellate trier of fact’s determination is State v. clearly wrong. However, (1999). 256 Neb. there are no conflicts the evidence doubt credibility essential witnesses in instant case. The exhibits themselves best of their Paris Adult “witnesses” content. See Theatre Slaton, v. I. U.S. S. Ct. L. Ed. 2d 446 Thus, trier of determining whether the fact was clearly wrong, only question is whether average person could applying contemporary community standards find that exhibits, whole, these appeal taken as do not to the prurient interest. To decide this question, trier fact must look at exhibit each as a whole determine whether its dominant theme is one which goes substantially beyond customary limits of candor a shameful or morbid appealing sex. State issue,

Having reviewed the exhibits at it is my opinion that the trier of in the instant facts’ case was I do clearly wrong. *11 think wrong not standard of review clearly means that “ ” have unbridled discretion whether cer ‘juries determining’ Harrold, tain State v. speech appeals prurient to interest. 256 840, 593 at N.W.2d Jenkins v. 418 quoting Georgia, U.S. 94 S. Ct. L. Ed. 2d 642 As we stated Harrold, in State v. must make an inde supra, appellate review of the finder of facts’ determination pendent concerning interest, being the issue whether the materials create an prurient context, issue of fact as to As in obscenity. any other trier of fact must make a that is finding evidence. supported trier of this court held that the supra,

In State v. masturbating that the visual of man depiction facts’ In clearly wrong. interest was not appealed case, that the majority findings concludes again instant even the visual clearly wrong, though depictions “fact” not are, doubt, at issue herein without a more shameful and sex than I holding morbid that in Harrold. think the majority’s case so low to make instant sets the standard as this court’s review of of “fact” in this context findings meaning- appellate in the not less. If exhibits instant case do go substantially limits of candor to a shameful or beyond customary appealing interest), morbid interest in sex I have (prurient difficulty imag- difficult, case, what does. It the instant ining to accept result that renders of men on graphic depiction ejaculating women, the faces of among other things, being protected by Amendment; First State v. yet supra, renders a of male depiction masturbation without ejaculation obscene and protected by First Amendment. Finders of “fact” are not context, of latitude in given type and I no see rea- them give son such latitude in this one. 6, 7, 8, 9, 11, 13, 15, 16, 17, 34,

I conclude that exhibits 35, 36, can be found only appeal to the prurient that the trial court’s conclusion to the contrary However, clearly wrong. because the trial court made no find- or, as whether the ings above exhibits were patently offensive with the exception exhibits 9 and whether the above value, have exhibits some I serious would remand with direc- tions for the trial court to make such findings.

McCormack, J., joins in this dissent. Nebraska, appellee,

State of appellant. Castor, Wilma L. 2d N.W. 201 27, 1999. August S-98-509,

Filed Nos. S-98-510.