January 02, 2006

Full Text of Decision on Gordon Lee Motions

IN SUPERIOR COURT

FLOYD COUNTY, GEORGIA

STATE OF GEORGIA

CRIMINAL ACTION

V

No. 05-CR-28976

JFL001

GORDON CLIFFORD LEE,

Defendant

ORDER ON MOTIONS

Background
This case charges the defendant with a violation of O.C.G.A. 16-12-81, Distribution of Material Depicting Nudity and Sexual Conduct, as alleged in Counts 1 and 2 of the Indictment. The Indictment also charges the Defendant with a violation of O.C.G.A.16-12-103, Distribution of Harmful Materials to Minors, as alleged in Counts 3, 4, 5, 6, and 7.

The parties have stipulated that all the counts result from an alleged single act of furnishing or distributing by the Defendant of a single copy of an issue of “Alternative Comics”, and a copy thereof has been stipulated into evidence.

Discussion

Defendant’s Motions Challenging 1 and 2

The Defendant filed two separate motions attacking Counts 1 and 2. One motion was a constitutional attack based primarily on the 1st Amendment to the U.S. Constitution, and one motion was an attack based on the Rule of Lenity. Counts 1 and 2 allege felony violations, whereas the remaining counts allege misdemeanor offenses. The Rule of Lenity within the context of this case stands for the proposition that if one single alleged act constitutes both a felony and a misdemeanor, the defendant may be potentially subject only to the misdemeanor penalty and not the felony penalty.

After a pre-hearing conference among counsel in this case, the State announced that it agreed to the dismissal of Counts 1 and 2 in light of Defendant’s challenge based on the Rule of Lenity.

Defendant’s Motions Challenging Counts 2, 6, and 7

In addition to the aforementioned attacks on Count 2, Defendant further challenged Counts 2, 6, and 7 because these counts allege the Defendant furnished and distributed the subject publication to JOHN DOE AND JANE DOE . After the same pre-hearing conference the State agreed to the dismissal of these counts.

Defendant’s Motions Challenging Counts 3, 4, and 5

The remaining counts are Counts 3, 4 and 5. The statute forming the basis of the prosecutions of these counts at the time of the alleged transaction is as follows:

“16-12-103. Selling, loaning, distributing, or exhibiting.

(a) It shall be unlawful for any person knowingly to sell or loan for monetary consideration or otherwise furnish or disseminate to a minor:

(1) Any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors; or

(2) Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in paragraph (1) of this subsection, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, or sadomasochistic abuse and which, taken as a whole, is harmful to minors.

(b)(1) It shall be unlawful for any person knowingly to sell or furnish to a minor an admission ticket or pass or knowingly to admit a minor to premises whereon there is exhibited a motion picture, show, or other presentation which, in whole or in part, depicts sexually explicit nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors or exhibit any such motion picture at any such premises which are not designed to prevent viewing from any public way of such motion picture by minors not admitted to any such premises.

(2) It shall be unlawful for any person knowingly to sell or to furnish to a person under the age of 21 an admission ticket or pass or knowingly to admit a person under the age of 21 to premises whereon there is exhibited a show or performance which is harmful to minors and which, in whole or in part, consists of sexually explicit nudity on the part of one or more live performers; sexual conduct on the part of one or more live performers; or sadomasochistic abuse on the part of one or more live performers.

(c) It shall be unlawful for any person to falsely represent his or her age to any person mentioned in subsection (a) or subsection (b) of this Code section or to his or her agent with the intent to unlawfully procure any material set forth in subsection (a) of this Code section or with the intent to unlawfully procure such person's admission to any motion picture, show, or other presentation, as set forth in subsection (b) of this Code section.

(d) It shall be unlawful for any person knowingly to make a false representation to any person mentioned in subsection (a) or subsection (b) of this Code section or to his or her agent that he or she is the parent or guardian of any minor or knowingly to make a false representation with respect to the age of another person with the intent to unlawfully procure for such other person any material set forth in subsection (a) of this Code section or with the intent to unlawfully procure such other person's admission to any motion picture, show, or other presentation, as set forth in subsection (b) of this Code section.

(e) It shall be unlawful for any person knowingly to exhibit, expose, or display in public at newsstands or any other business or commercial establishment or at any other public place frequented by minors or where minors are or may be invited as part of the general public:

Defendant’s first challenge to the remaining counts alleges that the statute, O.C.G.A. 16- 12- 103, is unconstitutional.

O.C.G.A. § 16-12-103(b)(2) is unconstitutional as an infringement on free speech rights without proof of a compelling state interest justifying such restriction applying to persons between 18 and 21 years of age. State v. Cafe Erotica, Inc., 269 Ga. 486, 500 S.E.2d 574 (1998). (b)(2) imposes restrictions as to adults. The Defendant is not being prosecuted under (b) (2). The instant prosecution deals with restrictions imposed to protect minors.

The state is not prohibited from prosecuting a defendant for violating the exhibition and definition components of O.C.G.A. § 16-12-103, even though the display provision (subsection (e) ) has been declared unconstitutional. Windom v. State, 187 Ga. App. 18, 369 S.E.2d 311 (1988).

The instant prosecution in Counts 3, 4, and 5 allege furnishing and distributing of prohibited materials to a minor. O.C.G.A. § 16-12-103 produces only a slight burden on adults' access to protected material and fully comports with the first amendment. American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990), cert. denied, 500 U.S. 941, 111 S. Ct. 2237, 114 L. Ed. 2d 479 (1991). The statute is not otherwise unconstitutional for any of the other reasons alleged by the Defendant. This is not an obscenity case it is simply a case of furnishing and distributing prohibited materials to a minor.

The operative language in Count 3 alleges that the Defendant did “…knowingly furnish and disseminate to a minor”…”pictures, drawings, and visual representations and images of a person and portion of the human body which depict sexual explicit nudity, sexual conduct, and sadomasochistic abuse and which is harmful to minors….”

In Count 4 it is alleged in the material portion that the Defendant did “…knowingly, furnish and disseminate to a minor”… “a book, pamphlet, magazine, and printed matter, containing pictures, drawings, and visual representations and images of a person and portion of the human body which depict sexually explicit nudity, sexual conduct, and sadomasochistic abuse which is harmful to minors….”

In Count 5 the Defendant is accused that he did “…knowingly, furnish and disseminate to a minor”…”a book, pamphlet, magazine, and printed matter, containing explicit and detailed verbal descriptions and narrative accounts of sexual excitement, sexual conduct, and sadomasochistic abuse, when taken as a whole is harmful to minors….”

In another of his challenges to Counts 3, 4, and 5, Defendant takes the position that, even if the statute is valid and the evidence supports prosecution, the prosecution should be limited to one count arising from the one incident of furnishing and distributing one publication to a minor.

The gravamen of the offenses alleged in Counts 3 and 4 are indistinguishable except for the allegation in Count 3 of the medium by which the “pictures, drawings, and visual representations and images of a person and portion of the human body which depict sexually explicit nudity, sexual conduct, and sadomasochistic abuse which is harmful to minors….” were furnished and delivered. Within the context of this case, the allegation vel non of the medium by which the material was furnished or delivered is immaterial and of no consequence. Counts 3 and 4, therefore, are materially indistinguishable, and at trial the state must elect which of the two counts it chooses to prosecute.

The gravamen of the offense alleged in Count 5 does not involve pictures, drawings, visual representations or images. Rather, the offense is alleged to be the furnishing or distributing of a book, etc. containing explicit and detailed verbal descriptions and narrative accounts of sexual excitement, sexual conduct. The allegations of Count 5 are distinguishable from Counts 3 and 4 from a linguistic analysis.

However, Defendant further contends that the one act of which the Defendant is accused can be prosecuted as only one violation, if any, of the one statute even though the relevant portions of the statute alleged to have been violated are distinctly set out as (a)(1) and (a)(2). Just as the Driving Under the Influence statute may be prosecuted for one act of driving in one or more of the 5 ways set out in subsections of O.C.G.A. 40-6-391, so can O.C.G.A.16-12-103 be prosecuted in more than one way as set out in subsections of that statute. Defendant’s assertion that one act can support prosecution of only one count in this case is without merit.

The Defendant’s challenges to the pleadings are sustained in part and overruled and denied in part. Counts 3 or 4 may be prosecuted, but the state must elect as between Counts 3 or 4. Count 5 may be prosecuted as a separate count alleging an offense separate from the one offense denominated as Counts 3 and 4.

The statute in question is constitutional. In the abstract, the pleadings support prosecution as aforesaid.

Now one must consider various statutory definitions and terms and how those definitions and terms interact with the publication in question.

Certain terms used in O.C.G.A. 16-12-103 are defined by stature in O.C.G.A. 16-12-102 and must be considered together with the alleged offenses and the publication in question to determine if there is validity to Defendant’s constitutional challenges relating to the publication itself.

“16-12-102. Definitions.

As used in this part, the term:

(1) "Harmful to minors" means that quality of description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it:

(A) Taken as a whole, predominantly appeals to the prurient, shameful, or morbid interest of minors;

(B) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

(2) "Knowingly" means having a general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both:

(A) The character and content of any material described in this part which is reasonably susceptible to examination by the defendant; and

(B) The age of the minor; provided, however, that an honest mistake shall constitute an excuse from liability in this part if the defendant made a reasonable, bona fide attempt to ascertain the true age of such minor.

(3) "Minor" means a person less than 18 years of age.

(4) "Sadomasochistic abuse" means actual or simulated flagellation or torture by or upon a person who is nude, clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound, or otherwise physically restrained by one so clothed or nude.

(5) "Sexual conduct" means actual or simulated acts of masturbation, homosexuality, sexual intercourse, or physical contact in an act of apparent sexual stimulation or gratification with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is female, breasts.

(6) "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

(7) "Sexually explicit nudity" means a state of undress so as to expose the human male or female genitals, pubic area, or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered or uncovered male genitals in a discernibly turgid state.”

After all is said and done, this case comes down to whether the statute alleged to have been violated is constitutional, whether the indictment contains correctly plead prosecutable allegations, and whether the publication in question can, in the judgment of the court, be determined by a rational trier of fact to be in violation of the statute and its’ standards and definitions. The first two questions have already been answered in the affirmative after, it is hoped, a more than cursory analysis. After a review of the subject publication by the court, the third question is also answered in the affirmative.

The court finds it unnecessary to regurgitate a description of the contents of the publication in this order. The publication is in evidence. It is what it is. It stands or falls on its’ own self-evident content. Taken as a whole the publication is “Harmful to Minors”. The publication in question falls within the prohibitions defined in O.C.G.A. 16-12-102 including, but not limited to, Subsections 1, 1(A), 1(B), and 1(C).

Ruling

IT IS HEREBY ORDERED AND ADJUDGED THAT:

1. Counts 1 and 2 of the Indictment are dismissed with prejudice;

2. Counts 6, and 7 of the Indictment are dismissed with prejudice;

3. Within the context of the remaining allegations of this Indictment, O.C.G.A 16-12-103 is constitutional;

4. As to Counts 3 and 4 of the Indictment, the state must elect at trial which of the two counts it chooses to prosecute;

5. Count 5 may be prosecuted separately as plead in the Indictment, and

6. A rational trier of fact, if it chooses to do so, may find that the publication in question violates O.C.G.A 16-12-103 as alleged in the surviving two counts of the Indictment.

This 29th day of December, 2005

Larry Salmon, Judge,

Floyd Superior Court