State v. WhiteState v. White
- Reporters:
- , ,
- Before:
- Pearson
The defendant, an “adult” bookstore clerk, was convicted for selling obscene magazines in violation of *10
Defendant raises two issues on appeal which merit discussion. First, he contends that
While defendant’s argument is intriguing, we do not agree with his interpretation of
*12We note preliminarily that statutes and statutory schemes are presumptively constitutional. Yelle v. Kramer, 83 Wn.2d 464, 520 P.2d 927 (1974); State v. Perrigoue, 81 Wn.2d 640, 503 P.2d 1063 (1972). Moreover, when one interpretation of a statute would render it constitutionally invalid, and another would render it constitutionally valid, the latter interpretation will prevail. Swanson v. White, 83 Wn.2d 175, 517 P.2d 959 (1973); Treffry v. Taylor, 67 Wn.2d 487, 408 P.2d 269 (1965).
In Tacoma v. Naubert, 5 Wn. App. 856, 860, 491 P.2d 652 (1971), we construed
The court in State v. J-R Distribs., Inc., supra at 605 commented (although not addressing itself to the issue under consideration here) that:
[T]he definitions and procedures set forth inRCW 9.68.050 -.120 are exclusive insofar as minors are concerned, and, that the state has preempted the field in the area of material defined as “erotic” to minors.
Whatever ambiguity was created by the first clause of the above-quoted sentence was resolved in the same case wherein the court stated at page 604 that “
We, therefore, construe
Defendant secondly contends that his conviction should be reversed because there was insufficient proof in *13the record of his knowledge of the contents of the two magazines in question. We find this argument to be without merit.
State v. J-R Distribs., Inc., supra, stated at page 607:
Proof that a defendant had specific knowledge of the contents’ obscenity, acquired by an actual perusal or viewing thereof, is not necessary to support a constitutional prosecution. General awareness that the contents are obscene is sufficient. It is for the trier of fact to determine, under all of the surrounding facts and circumstances, whether a defendant had knowledge that the materials were obscene.
Smith v. California, 361 U.S. 147, 4 L. Ed. 2d 205, 80 S. Ct. 215 (1959); Mishkin v. New York, 383 U.S. 502, 16 L. Ed. 2d 56, 86 S. Ct. 958 (1966). We are of the opinion that the cover pages of the magazines in question, along with the defendant’s statement comparing one of the pictures in the magazines to his film inventory, constitute sufficient evidence, both circumstantial and direct, from which the trier of fact could infer that defendant was aware of the magazines’ contents.
Counsel for the defendant has invited us to overrule several matters which were squarely decided in State v. J-R Distribs., Inc., supra. There is nothing in the United States Supreme Court cases handed down subsequent to State v. J-R Distribs., Inc. which would indicate that it was incorrectly decided in any respect. We will defer to the ruling of State v. J-R Distribs., Inc. and therefore will not consider issues raised by the defendant which were decided in that case.
Judgment affirmed.
Armstrong, C.J., and Petrie, J., concur.
Petition for rehearing denied August 26, 1975.
Review denied by Supreme Court October 21, 1975.
Notes
“Every person who—
“(1) Having knowledge of the contents thereof shall exhibit, sell, distribute, display for sale or distribution, or having knowledge of the contents thereof shall have in his possession with the intent to sell or distribute any book, magazine, pamphlet, comic book, newspaper, writing, photograph, motion picture film, phonograph record, tape or wire recording, picture, drawing, figure, image, or any object or thing which is obscene;
“Shall be guilty of a gross misdemeanor.”
In State v. J-R Distribs., Inc., 82 Wn.2d 584, 512 P.2d 1049 (1973) the court said at page 601, footnote 2:
“We authoritatively construeRCW 9.68.010 in the light of, and as limited by, the Roth-Miller test.” In short, quoting from Miller v. California, supra at 24, the basic guidelines for the trier of fact must be: “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
“For the purposes ofRCW 9.68.050 through 9.68.120:
“ (1) ‘Minor’ means any person under the age of eighteen years;
“(2) ‘Erotic material’ means printed material, photographs, pictures, motion pictures, and other material the dominant theme of which taken as a whole appeals to the prurient interest of minors in sex; which is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters or sado-masochistic abuse; and is utterly without redeeming social value;”