May 7, 2009 By Wallin & Klarich

California Court of Appeal Reverses Conviction of Defendant Found Guilty of Sex Crime for Showing Harmful Matter to a Minor

A jury in California found a defendant guilty of California Penal Code Section 288.2(a) for showing a 16-year-old girl pornographic images on the television. The defendant appealed that decision, and the California Court of Appeal reversed the conviction holding that there was insufficient evidence for the sex crime in California.

The alleged victim in this case was a 16 -year-old friend of the defendant’s daughter. The 16-year-old testified that while spending the night at the defendant’s house, she and the defendant watched television together. She testified that, as the defendant was flipping through the channels, he came across pornographic material. One scene showed a naked women dancing, and the other showed a naked man and naked women purportedly having sex. However, the 16-year-old testified that the television showed “only the upper bodies” of the actors. As a result of this incident, the defendant was charged and found guilty of California Penal Code Section 288.2(a).

California Penal Code Section 288.2(a) provides in material part: Every person who, with knowledge that a person is a minor… knowingly… exhibits…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” shall be guilty of a public offense. The California Court of Appeal held that Section 313 “essentially tracks” the three-prong test for obscenity articulated by the United States Supreme Court in Miller v. California (1973) 413 U.S. 15.

The Court of Appeal held that there was insufficient evidence in the record to hold that the television images, as described by the 16-year-old, met the test for harmful matter. The sole evidence presented at trial that the television programming viewed met the test for “harmful matter” was the testimony of the 16-year-old herself. The court referenced language in Miller that held that the matter must be “judged by its impact on an average person, rather than a particularly susceptible or sensitive person-or indeed a totally insensitive one.” Therefore, the court ruled in its California appeal that the testimony of the 16-year-old alone was insufficient to meet the test for harmful matter.

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