Cal. man’s conviction for showing nude film to minor reversed for lack of evidence

In People v. David Lawrence Dyke, A117955 (Cal. Super. April 9, 2009), Mr. Dyke appeals his conviction via jury trial for exhibiting harmful matter to a minor in violation of Pen. Code,1 § 288.2, subd. (a). His daughter’s friend (A.S.), aged 16, testified that Dyke had, in the course of “flipping through the television channels,” allowed two pornographic scenes to linger on the television for about 1-8 minutes and 45 seconds, respectively. Dyke was also convicted for misdemeanor sexual battery for his actions subsequent to the issue on appeal. Section 288.2 (a) states:

Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail.

On appeal, Dyke “contend[ed that] the evidence was insufficient to sustain the jury‘s verdict that the material exhibited to the minor was harmful matter [within the meaning of the law].” The California court applied the three-prong test for obscenity from Miller v. California, 413 U.S. 15, 24 (U.S. 1973): “The material exhibited to the minor must be obscene as defined by Miller. . . . If it is not, there is no violation of section 288.2, subdivision (a) even if the other elements of that statute are met.” The three prongs of the Miller test:

(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 489, (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 two reasons the court concluded that there is “insufficient evidence in the record to hold that the television images, as described by A.S, met the test for harmful matter.” First, applying a “contemporary adult standard,” the court pointed out that not all nudity and not all “portrayals of sexual activity are “necessarily obscene”; secondly, that it was impossible for the jury, based on the evidence provided, to determine whether the television clips observed contained “harmful matter” under California code and the Miller test—especially with regard to the issue of artistic merit:

As to the 45-second glimpse of the couple presumably having sexual intercourse, was the clip part of a tawdry adult film, a former Academy Award winner being shown on television that night, or even a brief scene from Shakespeare‘s Romeo and Juliet?

Therefore the court reversed Dyke’s conviction and remanded the case for resentencing.