State v. JacobsonState v. Jacobson
Samilea Jacobson and Elizabeth Strain were charged by a single bill of information, filed on September 24, 1981, with one count each of obscenity in violation of
From these convictions, defendants have brought the present appeal urging four assignments of error, as follows:
1. The trial court erred in not granting defendants’ motion for acquittal.
2. The trial court erred in rendering a guilty verdict at the close of trial.
3. The trial court erred in denying motion in arrest of judgment.
4. The trial court erred in failing to hold
LSA-R.S. 14:106A(1) unconstitutional on its face in violation of the United States Constitution and alternatively unconstitutional as applied to defendants in this case.
On September 4, 1981, Officers Thompson and Laird, both detectives with the Baton Rouge City Police Department, while within premises known as Fox Hunter Lounge located in the City of Baton Rouge, observed five different women perform on a stage. After discussing their observations regarding the manner in which the women had performed and their belief that the women were clad only in G-strings, Officеrs Thompson and Laird summoned additional police officers to the scene by radio.
The five women performers, which included defendants herein, were thereafter arrested and transported for booking. The present charges were brought based on this incident.
ASSIGNMENT OF ERROR NUMBERS 1 AND 2:
By means of these assignments, defendants contend that the evidence presented at trial was insufficient to support their convictions on charges of obscenity.
Assignment of Error Number 1 is based on denial of a motion of acquittal, sought by defendants at the close of the state‘s evidence.
The applicable standard for reviewing sufficiency of the evidence, whether raised by formal assignment or motion for acquittal, is whether or not, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the essential elements of the crime were proven beyond a reasonable doubt.
A. The crime of obscenity is the intentional: (1) Exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.
Evidence adduced at trial as to the appearance and conduct of defendants, on the night in question, is groundеd on the testimony of Officers Dean Thompson and Sharon Laird.
Officer Thompson testified that after entering the Fox Hunter Lounge he and Officer Laird took seats next to the stage. From that vantage point, he observed five female dancers (later identified as the five women charged in the instant bill of information) individually come on to the stage, рerform, and leave.
Officer Thompson described the appearance of each dancer as being clad only in a G-string as each of the dancer‘s breast nipples appeared visible to him. The lighting in effect during the performances was at times flashing with the dancers’ breast area sometimes completely lit up. In addition, as a dancer performed, she would approach within a distance of one foot of a patron seated by the stage. Because of this proximity, at least one of the five dancers was observed to have been physically touched by a patron.
Detective Laird‘s testimony as to defendants’ appearance and conduct on stage was in accordance with that of Officer Thompson.
After the arrival of other police officers summoned by radio, Officer Laird had further opportunity to view defendants in their dressing room. She testified that it was only then that she observed each of the dancers had a small amount of translucent surgical tapе covering the breast nipple area.
Detective Robert Howle, one of the officers who responded to the radio summons, testified that upon arrival at the Fox Hunter Lounge he proceeded to close down the
The assignment of error that the evidence introduced at trial is not sufficient is based upon three contentions. The first is that the state failed to prove beyond a reasonable doubt that defendants intentionаlly exposed their breast nipples as defined by the statute. The second contention is that any such exposure was not proven beyond a reasonable doubt to have been with the intent of arousing sexual desire or appealing to prurient interests.3 The final contention is that the state failed to prove beyond a reasonable doubt that the proscribed conduct occurred in a public place or place open to public view.
In presenting the argument with respect to the first contention, defendants urge that since their breast nipples were covered with translucent tape during the instant performances they were not exposed as рroscribed by
The article under which defendants were prosecuted does not give a specific meaning for the word “expose” as it is there used. Webster‘s Third New International Dictionary, in discussing the many uses and meanings of the word, gives among others “to lay open to view” and “to deprive of concealment.” Although we do not hold that the word “expose” as used in this statute is limited to meaning “exposed to sight” that is a construction generally in use and one which gives a fair import to the word.
Had the legislature intended to limit the proscribed appearance aspect of the statute to a bare, naked, or uncovered breast nipple it could have easily chosen such a word or words to express its intention.
At trial, each of the three police officers stated that the defendants’ entire breasts, including breast nipples, were clearly visible when viewed during the on stage performances. We need not decide whether the exposure was due to complete bareness or the visibility provided by translucent tape coupled with lighting conditions.
Despite some semаntical variance in the testimony of the three officers in describing what was seen, viewing the evidence in the light most favorable to the prosecution, as we are required, we conclude that the trier of fact could have found beyond a reasonable doubt that, during the performances in question, the defendants’ breast nipples werе exposed in violation of
Defendants also urge that, based on the evidence introduced at trial, the trier of fact could not have reasonably found that any exposure by defendants of their breast nipples was with the intent of arousing sexual desire or appealing to prurient interest.
Intent is a state of mind which need not be provеn as a fact, but may be inferred from any facts or circumstances that may be shown to exist in a case, and thus is a matter for the trier of fact.
As noted above, the officers who witnessed the performances testified as to defendants’ conduct. The setting of the performances, the attire of the performers,
The fact that the performances were not shown to have produced sexual desire of the police officers or any other person is immaterial, for the statute does not require that sexual desire be actually aroused. All that is required under the statute is that there be the intent of arousing sexual desire. State v. Vines, supra.
Finally, defendants urge that the State failed to prove that the proscribed conduct occurred “in any public place or place open to the public view” as required by
Section 106A(1) was amended in 1979. The legislative intent of Act 252 of 1979 was made clear in the Act‘s title, which states that the purpose of the amendment was “to include within the scope of the statute obscenity which takes place in any enclosed or unenclosed area operated to receive or accommodate the public or people at large.” In view of the clear purpose of the amendment, we conclude that sufficient evidence was presented at trial from which the trier of fact could have found that the Fox Hunter Lounge was a “public place” within the contemplation of this statute.4
Accordingly, these assignments lack merit.
ASSIGNMENTS OF ERROR NUMBERS 3 AND 4:
In these assignments, defendants argue that
Specifically, defendants urge that
In State v. Walters, 440 So.2d 115 (La. 1983), defendants challenged the constitutionality of
In addressing the argument of vagueness the Louisiana Supreme Court noted the following:
The statute required the state to prove that the offender acted with a specific intent to arouse sexual desire, either of the actor or of the viewer. The requirement of a state of mind indicating an active desire to arouse sexual appetite could not be more clearly defined. See
La.R.S. 14:10 . Virtually the same words are used inLa.R.S. 14:81 to define indecent behavior with juveniles, and its constitutionality has never effectively been chаllenged. [citations omitted] The phrase “arousing sexual desire” is certainly one which gives an ordinary person of reasonable intelligence fair notice of the proscribed conduct. See State v. Jackson, 404 So.2d 952 (La.1981). 440 So.2d at 121.
The alleged vagueness of the term “exposed” was not directly at issue in State v. Walters; however, legislators are not required to effectively nullify the purpose of legislation by the use of specific terms which would afford loopholes through which many could escape. The
In State v. Walters, the Louisiana Supreme Court squarely addressed the applicability of the test for obscenity announced by the United States Supreme Court in Miller v. California (a case involving printed materials and photographs) to a proseсution proceeding under
There is no evidence that the performances in the present case possessed any redeeming feature of art.
We, therefore, conclude that prosecution of defendants’ conduct under
Defendants’ further argument that
ERROR PATENT:
We do note ex proprio motu an error patent on the face of the record which requires that the sentеnces herein imposed be amended. See,
The 1977 legislature amended
“G. (1) Whoever commits the crime of obscenity shall be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned in the parish prison for not more than one year, or both.
“(2) When a violation of Paragraph (1), (2), or (3) of Subsection A of this Section is with or in the presence of any unmarried person under the age of seventeen years, the offender shall be fined not more than ten thousand dollars and shall be imprisoned at hard labor for not less than two years nor more than ten years, without benefit of parole, probation, or suspension of sentence.”
In contrast, Act 717 enacted the following penalty provision:
“B. Whoever commits the crime of obscenity shall be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned for not more than one year with or without hard labor, or both.
“When a violation of Paragraphs (1), (2), or (3) of Subsection A of this Section is with, or in the presence of, an unmarried person under the age of seventeen years, the offender shall be fined not more than two thousand dollars, or imprisoned
for not more than five years with or without hard labor, or both.”
In State v. Entertainment Specialists, Inc., 386 So.2d 653 (La.1980), the Supreme Court addressed the issue of conflicting punishments for the same crime. In applying the principles of conflicting punishments, the Court found that the statute must be construed in order to afford defendant the advantage of the lesser punishment. Accordingly, defendant therein was held to have been convicted of a misdemeanor as provided by Act 97.
The instant offenses occurred on September 4, 1981 and any applicable penalty was governed by Act of 97.10 Defendants could have each been sentenced to one year imprisonment in the parish prison and fined not more than one thousand dollars; however, it was error to sentence each defendant to imprisonment for one year at hard labor.
Each sentence is amended to provide that it shall be served in the parish prison. In all other respects each conviction and sentence is affirmed.
CONVICTION AFFIRMED, SENTENCE AFFIRMED AS AMENDED.
Notes
The Louisiana Supreme Court granted the writ solely for the purpose of transferring to the Court of Appeal for consideration. See State v. Jacobson, 417 So.2d 374 (La.1982). Court of Appeal First Circuit, No. 82 KW 0555, denied the writ on July 19, 1982 noting that defendant had an adequate remedy by review in event of conviction. Guilty verdict was rendered, thereafter, by thе trial court on February 7, 1983.
Although we are not presented here with the problem of regulating lewd public conduct itself, the States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior. 413 U.S. at 26, 93 S.Ct. at 2616.