Appendix — Evenson v. Arizona
Supreme Court brief2003
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" 8.
Supreme Geurt, U.
FILED
03 -39 NN 19208
No.
In The
Supreme Court of the United States
JEROME HENRY EVENSON,
Petitioner,
VS.
THE STATE OF ARIZONA,
Respondent.
On Petition for Writ of Certiorari to the
Supreme Court of Arizona
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
PAUL JOHN CAMBRIA, JR., ESQ.
Counsel of Record
LIPSITZ, GREEN, FAHRINGER,
ROLL, SALISBURY & CAMBRIA LLP
42 Delaware Avenue, Suite 300
Buffalo, New York 14202-3901
(716) 849-1333
Counsel for Petitioner
Of Counsel:
ROGER WALTER WILCOX, JR., ESQ.
11 Centre Park (B-2331) 107 Delaware Avenue — Suite 81
Rochester, New York 14614 Buffalo, New York 14202
(585) 232-6920 THE DAILY RECORD (716) 847-2984
TABLE OF CONTENTS
Page
I wireticsidiaalccputiccseisanomicieaanetudeieuncelenssbessumeadica A-1
IID ices bantctielatatiaiesictcunsatndanciacneelesennCeskaimcunnacaclans A-3
ECOICR MIEN TOCERIOO «ns cissnincacesiscersnssanvasivvevcerss A-26
Constitutional and Statutory Provisions
RPS Oe Oi FUE SINE he oreo cmaumieciniad A-35
AQDCAUS COOCTIEE TETICT on..cisniecersavenssescnsscoassevessesie A-41
Appellec’s Answeritg Brict .........::...ssccseresesessseseoees A-105
PATA TES TRIE issn chs csv senesssevsseosinciczcnnss A-150
Brief of the Arizona Civil Liberties Union As
Amicus Curiae in Support of Appellant A-185
Petition for Review _ A-217
Petitioner/Appellant's Supplemental Brrief............... A-235
Appellee's Supplemental Brief................ cc ceeeeeeeeee A-258
EE OE IE CN ig eicsntssctentsiscigeisicvintiiatonss A-279
Petitoner/Appellant's Response to
Amicus Curiae Brief of Maricopa County
I I iiisscecailinsnciantetiacatnhivasaleciatacassienns A-288
SUPREME COURT OF ARIZONA
STATE OF ARIZONA, Arizona Supreme Court
No. CR-01-0438-PR
Appellee,
Court of Appeals
V. Division One
No. 1 CA-CR 00-0621
JEROME HENRY EVENSON,
Maricopa County
Appellant. } Superior Court
On consideration of the trial record, the evidence,
the briefs, and the arguments of counsel, a majority of the
court, consisting of Vice Chief Justice McGregor, Justice
Berch, Judge Espinosa, and Chief Justice Jones, has
determined that review of the case was improvidently
granted.
IT IS THEREFORE ORDERED vacating the grant
of review as improvident and dismissing the case.
DATED this 24th day of March, 2003.
Justice FELDMAN, dissenting from the order, gives his
reasons as follows.
The publication contains nothing obscene or
No. CR 97-09901
ORDER
Charles R. Jones
Chief Justice
A-2
pomographic and portrays no sexual act, unless one
believes that depicting the female breast or advertising
“personal” services is either obscene, pornographic, or
sexually explicit. Material similar to that in The Beat is
readily available to minors and everyone else in movies and
on television, particularly cable television, as well as in
magazines and newspapers. Thus, I cannot agree that these
exquisitely tacky ads for exotic dance clubs and
undescribed personal services may support a criminal
conviction, absent some evidence that minors have been or
could be harmed by the material. In fact, in this case, there
was no evidence that any minor ever saw any of the
material or would even be allowed in any of the clubs.
TO:
A. Melvin McDonald, Jr., Esq., Jones Skelton & Hochuli
Mary Ann Sopy, Esq., Arizona Civil Liberties Union
Hon. Terry Goddard, Arizona Attorney General
Attn: Randall M. Howe, Chief Counsel
Richard M. Romley, Maricopa County Attorney
Attn: Gerald R. Grant, Esq.
Hon. Colin F. Campbell, Presiding Judge,
Maricopa County Superior Court
Hon. Thomas W. O'Toole, Criminal Presiding Judge,
Maricopa County Superior Court
Hon. Frank T. Galati, Judge, Maricopa County Superior
Court
Michael K. Jeanes, Clerk, Maricopa County Superior Court
Philip G. Urry, Clerk, Court of Appeals, Division One,
Phoenix
West Publishing Company
Lexis-Nexis
A-3
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
STATE OF ARIZONA, 1 CA-CR 00-0621
Appellee, DEPARTMENT E
V. OPINION
JEROME HENRY EVENSON, Filed 10-30-01
Appellant.
Appeal from the Superior Court in Maricopa County
Cause No. CR 97-09901
The Honorable Frank T. Galati, Judge
AFFIRMED
Janet Napolitano, Attorney General Phoenix
By Randall N. Howe, Chief Counsel,
Criminal Appeals Section
Attorneys for Appellee
Jones, Skelton & Hochuli, P.L.C. Phoenix
By A. Melvin McDonald
Attorneys for Appellant
Jennings, Strouss & Salmon, P.L.C. Phoenix
By Stephen F. Lee
Attorneys for Amicus Curiae, Arizona Civil Liberties
Union
A-4
RY AN, Judge
4j1 Jerome Evenson appeals his convictions and
sentences on thirteen counts of displaying, selling, or
offering to sell from a vending machine material that is
harmful to minors. See Ariz. Rev.Stat. (“A.R.S.”) § 13-
3513 (Supp. 1997). Evenson has raised several issues on
appeal. However, because only our resolution of the
constitutional challenges to A.R.S. § 13-3513 merits
publication, we have addressed the remaining issues in a
separate memorandum decision. See ARCAP 28(g); Ariz.
R. Sup. Ct. 111(h); State v. Benak, 199 Ariz. 333, 334, 4
4, 18 P.3d 127, 128 (App. 2001).
q2 We conclude that A.R.S. § 13-3513 is narrowly
tailored to achieve a compelling governmental interest and
therefore does not violate Evenson’s First Amendment
rights. We further conclude that § 13-3513 satisfies the
requirements of equal protection and due process.
Therefore, we affirm.
BACKGROUND
qj3 The primaty issue before us is whether A.R.S. § 13-
3513 is an unconstitutional restriction on freedom of
speech. See U.S. Const. amend. I; Ariz. Const. art. 2, § 6.
Accordingly, we must “make an independent examination
of the whole record” to assure ourselves there has not been
a “forbidden intrusion on the field of free expression.” New
York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)
(citation omitted)
14 Evenson is the owner and publisher of The Beat, an
adult oriented weekly publication. He has published The
Beat in Arizona since 1964. The tabloid-style newspaper
contains news, editorials, and photographs, but primarily
Be ee ee ge |
A-5
consists of sexually oriented advertisements for adult
bookstores, numerous “escort” and “model”services, and
the like. Dozens of these ads contain photographs of
partially nude and completely nude women posing in a
variety of positions.’ However, no genitalia are displayed
in any of the photographs. Additionally, The Beat contains
“strictly personal” classified ads for persons seeking
various sexual encounters with others.
q5 In 1997, the Arizona Legislature passed A.R.S. §
13-3513. The statute reads as follows:
A. It is unlawful for any person to
knowingly display, sell or offer to sell in
any coin-operated or slug-operated
vending machine or mechanically or
electronically controlled vending
machine that is located in a public place,
other than a public place from which
minors are excluded, any material that is
harmful to miners as defined in § 13-
3501.
B. It is a defense in any prosecution for a
violation of subsection A _ that the
defendant has taken reasonable steps to
ascertain that the person is eighteen
years of age or older and has taken either
of the following measures to restrict
access to the material that is harmful to
minors:
1. Required the person receiving the
' In the past, the police have used these ads to obtain leads on
unlicensed “escort” services, presumably during the course of
prostitution investigations.
ae
A-6
material that is harmful to minors to use
an authorized access or identification
card to use the vending machine and has
established a procedure to immediately
cancel the card of any person after
receiving notice that the card has been
lost, stolen or used by persons under
eighteen years of age or that the card is
no longer desired.
2. Required the person receiving the
material that is harmful to minors to use a token in
order to use the vending machine.
C. A person who violates this section is
guilty of a class 6 felony.
16 “Harmful to minors” is defined at A.R.S. § 13-3501
(1989). The definition was adopted by the Arizona
Legislature in 1974 to conform with the test for obscenity
promulgated by the United States Supreme Court in Miller
v. California, 413 U.S. 15, 24-26 (1973). See S.B. 1227,
Summary Analysis (Ariz. 1974). Section 13-3501 requires
the average adult to apply contemporary state standards
with respect to what is suitable for minors. For an item to
be harmful to minors, it must depict “nudity, sexual
activity, sexual conduct, sexual excitement, or
sadomasochistic abuse” in a patently offensive way, and it
must appeal to the prurient interest and lack serious literary,
artistic, political, or scientific value for minors when taken
as a whole. Id. Actually furnishing such material to minors
has been against the law in this state for some time. See
A.R.S. § 13-3506(A) (1989).?
, Additionally, putting material that is harmful to minors on “public
display” is illegal in Arizona. See A.R.S. § 13-3507 (A) (1989) - It
appears that Evenson was not charged under this provision because law
enforcement officials interpret “public display” to mean that the
A-7
q7 Although not entirely clear from the record, it
appears that part of the impetus for the passage of A.R.S. §
13-3513 was a February 1997 newspaper article recounting
complaints from mothers of young children about the
availability of the Arizona Swinger and the Pleasure Guide,
two competitor publications often sold in vending machines
near those of The Beat.’ After passage of the statute, both
the Swinger and the Pleasure Guide began blocking out any
nudity in the photographs they published.
8 Shortly after § 13-3513 became effective, Phoenix
vice officers received a telephone complaint from a man
named Alfred Nelson concerning copies of The Beat being
sold from a vending machine on Seventh Avenue. A vice
detective met with Nelson, who showed the detective a
copy of the August 22-28, 1997 issue (Vol. 33, No. 29),
which Nelson believed was inappropriate for minors. The
detective then obtained a search warrant, and on August 27,
1997, officers from Phoenix, Mesa, and Chandler seized as
evidence fifteen of the 200-plus area vending machines
selling The Beat at 50-cents per copy.”
q9 The vice detective who seized the eight vending
machines impounded in Phoenix testified that they were
harmful material itself must be publicly displayed. In other words,
A.R.S. § 13-3507 is interpreted to apply to most nationally distributed
pornographic magazines because of the nature of their covers. The
cover of Evenson’s publication, in contrast to its inside pages, does not
depict such material.
* There is little legislative history because A.R.S. § 13-3513 was passed
as a “strike everything amendment” to an unrelated bill. See Minutes of
Senate Committee on the Judiciary, at 20 (March 25, 1997). However,
it appears that one motivation for the legislation was to treat the sale of
vadult” oriented newspapers and “adult” magazines the same way. Id.
* Between twenty and fifty copies are delivered to each vending
machine every week and, according to Evenson, between 8,000 and
12,000 copies of The Beat are sold during that time.
A-8
“so well dispersed around the Valley, all you have to do is
drive any direction if you are looking for them, and you’ll
find them.” The detective said that two of the machines he
impounded were located near high schools. In fact,
Sunnyslope High School appears in the background of a
photograph of a seized vending machine, and one of the
two machines that completely sold out before the warrant
could be executed was near a “Christian high school.” A
third machine was next to a Dairy Queen, a fourth was
outside a pizza restaurant, and all eight machines seized in
Phoenix were in close proximity to residential areas.
{10 Similarly, a Mesa sergeant testified that one of the
five vending machines he seized was in front of a post
office “a little bit down the way” from a church and a
school; another was near other churches; a third machine
was across from the Mesa Community College; and all
were located short distances from residential areas. It also
appears that one of the two vending machines seized in
Chandler was positioned within blocks of three different
schools. Throughout Phoenix, Mesa, and Chandler, many
machines were placed near convenience stores.
{11 The grand jury indicted Evenson on fifteen counts
of violating A.R.S. § 13-3513. Evenson’s first trial ended in
a hung jury. A second jury convicted him on thirteen
counts, but acquitted him on the other two, apparently
because two of the vending machines had sold out by the
time the officers impounded them. The trial court placed
Evenson on three years probation and imposed substantial
fines. This appeal followed.
DISCUSSION
I. First Amendment
412 Evenson contends that A.R.S. § 13-3513 violates
A-9
the First Amendment to the United States Constitution and
Article 2, § 6 of the Arizona Constitution. The
constitutionality of a statute is a matter of law that we
review de novo. State v. Korzuch, 186 Ariz. 190, 192, 920
P.2d 312, 314 (1996).
413 Statutory limitations on free speech are subject to
varying levels of scrutiny, depending on whether the
limitation is content-based or content-neutral. Here, the
parties agree that A.R.S. § 13-3513 is a content-based
restriction, and as such is subject to strict scrutiny. See
United States v. Playboy Entm’t Group, Inc., 529 U.S. 803,
813 (2000) (federal statute limiting sexually explicit
programming on cable television is content-based
restriction subject to strict scrutiny); Reno v. ACLU, 521
U.S. 844, 874 (1997) (‘Reno I’’) (ban on sending obscene
or indecent material over Internet is a content-based
restriction); Sebago, Inc. v. City of Alameda, 259 Cal. Rptr.
918, 923-24 (Cal. Ct. App. 1989) (restricting sites of
vending machines for adult newspapers is 2 content—based
restriction). Under strict scrutiny analysis, content-based
regulations must be “narrowly tailored to promote a
compelling Government interest.” Playboy, 529 U.S. at 813
(citing Sable Communications of Cal., Inc. v. FCC, 492
U.S. 115, 126 (1989). In the free speech context, a statute is
narrowly tailored “if [the Government] chooses the least
restrictive means to further the articulated interest.” Sable,
492 U.S. at 126 (1989). In addition, content-based
restrictions are “presumptively invalid” and the state bears
the burden of rebutting that presumption. Playboy, 529 U.S.
at 817 (quoting R.A.V. v. City of St. Paul, 505 U.S. 377,
382 (1992)).
. Article 2, section 6 of the Arizona Constitution states:
Every person may freely speak, write, and publish on all
subjects, being responsible for the abuse of that right.
A-10
14 Evenson argues that A.R:S. § 13-3513 violates the
First Amendment because the State presented no evidence
that the statute addressed a compelling state interest.
Specifically, Evenson contends that under the Supreme
Court’s decision in Playboy, the State was required to show
that minors had purchased, possessed, seen, and were
harmed by The Beat. Alternatively, Evenson argues that
even if A.R.S. § 13-3513 furthers a compelling interest, the
State has failed to prove that it is the least restrictive means
of serving that interest.
{15 The statute at issue in Playboy, section 505 of the
Communications Decency Act of 1996 (“CDA”),° was
designed to shield children from viewing or listening to
discernable pictures and audio of sexually explicit cable
television programs, which occasionally appeared on the
screens of non—subscribers through a phenomenon called
“signal bleed.” Jd. at 806. Section 505 required cable
television _ operators providing sexually _ oriented
programming either to “fully scramble or otherwise fully
block” those channels, or to limit their transmission to
times when children were unlikely to be viewing.’ Id.
Given the expensive cost of converting existing cable
television technology to more advanced scrambling
technologies, the majority of cable Operators opted to
comply with § 505 by limiting the transmission of sexually-
explicit programming to the hours between 10:00 p.m. and
6:00 a.m. Id. Apparently adopting the trial court’s
conclusion that § 505’s alternatives to a time-block were
not economically “practical,” Id. at 808-10, 812, the Court
concluded that, in effect, § 505 resulted in a ‘nationwide
° The CDA is Title V of the Telecommunications Act of 1996. See Pub.
L. No. 104—104, 110 Stat. 133 (1996) (codified at scattered sections of
18, 28 and 47 U.S.C).
” By administrative rule, the hours between 10 p.m. and 6 a.m. were
thus designated. See 47 C.F.R. § 76.227 (1996).
A-11
daytime speech ban.” Id. at 823.
{16 In its analysis, the five-member majority
emphasized that the government had failed to produce any
“evidence of how widespread or how serious the problem
of ‘signal bleed’ [was].” Id. at 819. In other words, “‘an
actual problem” had not been shown. Id. ‘at 822. However,
the Court held § 505 unconstitutional because it was not the
least restrictive means of addressing the signal bleed
problem. Another provision of the CDA, § 504, allowed
individual cable subscribers to request that unwanted
transmissions be completely blocked at the cable operator’s
expense and was therefore more narrowly tailored than §
505. Id. at 823-24, 825-26.
A. Compelling State Interest
417 It has been repeatedly and explicitly held that states
have “a compelling interest in protecting the physical and
psychological well-being of minors” and that “[t)his
interest extends to shielding minors from the influence of
literature that is not obscene by adult standards.” Sable, 492
U.S. at 126 (citing Ginsberg v. New York, 390 U.S. 629,
639-40 (1968); New York v. Ferber, 458 U.S. 747, 756-57
(1982)); see also Reno I, 521 U.S. at 869; Denver Area
Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727,
755 (1996); FCC v. Pacifica Found., 438 U.S. 726, 749—
50 (1978); ACLU v. Reno, 217 F.3d 162, 173 (3d Cir. 2000)
(“Reno II’’), cert. granted, Ashcroft v. ACLU, 121 S. Ct.
1997 (May 21, 2001).
1
18 Despite these precedents, Evenson argues that, to
establish a compelling interest under the Supreme Court’s
analysis in Playboy, the State was required to prove that
children were actually exposed to The Beat’s harmful
A-12
material. He contends that the State presented no evidence
of minors purchasing, seeing, or being harmed by exposure
to The Beat. We, however, conclude that Playboy does not
require such proof under the circumstances of this case.
{19 As noted above, the statute in Playboy was struck
down because it was not the least restrictive alternative --
not because the government lacked a compelling interest.
Playboy, 529 U.S. at 827 (“The Government has failed to
show that § 505 is the least restrictive means for addressing
a real problem... .”) Nevertheless, the Supreme Court did
suggest that the State must present some minimal evidence
that the statute addressed the admittedly compelling interest
of protecting the physical and psychological well-being of
minors. See id. at 822 (noting that although the
Government is not required to compile a 10,000 page
record to support every statute burdening speech, it must
present more than “anecdote and supposition”); see also
Playboy Entm’t Group, Inc. v. United States, 30 F. Supp.
2d 702, 716 (D. Del. 1998) (“[T]he Supreme Court’s
jurisprudence does not require empirical evidence. Only
some minimal amount of evidence is required when
sexually explicit programming and children are involved.”’)
(citing Pacifica, 438 U.S. at 748-50).
{20 But Playboy does not, as Evenson suggests, demand
proof that specific children were actually exposed to and
harmed by sexually explicit material as a prerequisite to
establishing a compelling interest. Rather, the proof
required by Playboy is proof that the potential for harmful
: However, we note that even after the Playboy decision, courts
have found it self-evident “that the government has a compelling interest
in protecting children from material that is harmful to them, even if not
obscene by adult standards.” Reno /I, 217 F.3d at 173; see generally
United States v. Fox, 248 F.3d 394, 401-02 (Sth Cit. 2001)
(government’s interest in the area of child pornography not limited to the
prevention of harm suffered by actual children participating in
production of pornography, but extends to all children).
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exposure to minors constitutes a real risk. See Playboy, 529
U.S. at 819 (“[T]here is no proof as to how likely any child
is to view a discernable explicit image, and no proof of the
duration of the bleed or the quality of the pictures or sound.
To say that millions of children are subject to a risk of
viewing signal bleed is one thing; to avoid articulating the
true nature and extent of the risk is quite another.”); id.
(discounting videotaped evidence of signal bleed because
“there is no discussion, for instance, of the extent to which
any particular tape is representative of what appears on
screens nationwide.”); id. (“[T]he Government presented
no evidence on the number of households actually exposed
to signal bleed and thus has not quantified the actual extent
of the problem of signal bleed.”) (quoting Playboy, 30 F.
Supp. 2d at 709) . Thus, the evidentiary deficiency noted in
Playboy was not that the government had failed to prove
that actual children had seen and been harmed by viewing
signal bleed,” but rather that the government had failed to
prove that signal bleed occurred often enough and with
enough clarity so as to create a substantial likelihood that
children were at risk for harmful exposure. Obviously, as
the Court concluded, “[i]f television broadcasts can expose
children to the real risk of harmful exposure to indecent
materials, even in their own home and without parental
consent, there is a problem the Government can address.”
Id. at 826-27.
921 Moreover, Evenson’ s argument that actual
exposure and actual harm must be proven is undermined by
the Playboy decision itself. There the record contained
evidence that one eleven-year old boy was exposed to
sexually explicit signal bleed while attending a slumber
party. See Id. at 820 (noting evidence); see also Playboy,
30 F. Supp. 2d at 710 n.Il, and accompanying text. But the
9
Indeed, as discussed in the following paragraph, in Playboy,
the government did provide such evidence.
A-14
Court concluded that such evidence was merely
“anecdotal” and was thus insufficient to establish the
existence of an “actual problem.” Playboy, 529 U.S. at 821-
22. The Court’s treatment of such evidence in Playboy
Supports our conclusion that the government’s compelling
interest in the physical and psychological well-being of
minors is implicated by the risk of harmful exposure to
minors generally rather than by the effect of any actual
exposure on any individual minor.!
22 For several reasons, we conclude that, in contrast to
the evidentiary deficiencies noted in Playboy, the State here
provided both direct and circumstantial evidence that the
unrestricted availability of The Beat creates a real risk of
children being exposed to indecent materials. First, unlike
the signal bleed at issue in Playboy, there is no question as
to the duration or quality of the indecent images in The
Beat because those images were printed in hard copy
format. Cf. Playboy, 30 F. Supp. 2d at 716 (noting that
ee Amicus curiae also argues that actual children must be
harmed. It relies on a recent Seventh Circuit case for the proposition
that the government must have compelling grounds, and not merely
plausible ones, to justify enforcement of A.R.S. § 13-3513. See Am.
Amusement Mach. Ass'n v. Kendrick, 244 F.3d 572, 576 (7th Cir.
2001). In that case, manufacturers of video games sought to enjoin the
enforcement of a city ordinance limiting minors’ access to video games
that depict violence. The Seventh Circuit noted that the city’s claim that
harm to its citizens through a minor's use of violent video games was
not grounded in common sense. Id. at 579. The court therefore held that
without evidence illustrating how violent video games were harmful to
the consumer or to the public safety, the city failed to show a
compelling interest. /d. But the court, citing Ginsberg, commented that
such evidence was not required with respect to restrictions on sexual
materials harmful to minors, noting that the Supreme Court “thought
this a matter of common sense.” Id. Therefore, we find Kendrick
inapposite.
A-15
“(t]here is no evidence in this case that ... scrambled,
garbled, intermittent signal bleed has a harmful potential
similar to explicit pomography’”’). Thus, while any minor
who tunes into a scrambled sexually explicit cable program
may only see static or snow, see Playboy, 529 U.s. at 819, a
minor who turns the pages of The Beat will, in every case,
see sexually explicit images.'' Consequently, the risk of
harmful exposure to minors from the clear and unchanging
sexually explicit images in The Beat is far greater than the
risk of exposure to the scrambled, garbled, intermittent
images occasionally resulting from signal bleed.
923 Second, unlike Playboy, in which there was “‘no
attempt at explanation or context,” /d., the State offered
substantial circumstantial evidence that The Beat's
unrestricted availability created a real risk of harmful
exposure to minors. The evidence established (1) that The
Beat was readily available for only fifty-cents at more than
200 unattended vending machines scattered throughout the
Phoenix area; (2) that many of those machines were
positioned near schools, convenience stores, and other
places where minors congregate; (3) that one of the two
machines that had completely sold out before police could
impound it was near a high school; and (4) that virtually all
of the seized machines were placed near residential areas.
Thus, the evidence showed that material the jury found
“harmful to minors” was readily available to minors, at
“ This case is, therefore, factually less analogous to Playboy and
more analogous to those cases in which the state’s compelling interest
in protecting minors supported a state statute prohibiting the sale to
minors of sexually provocative material, even though the material was
not obscene by adult standards. See, e.g., Ginsberg, 390 U.S. at 639-43
(concluding that the state’s compelling interest in protecting minors
supported a state statute prohibiting the sale of “girlie” picture
magazines to minors under seventeen, even though the magazines at
issue were not obscene for adults).
saosin is
A-16
minimal cost, with no adult Supervision, and was located
near schools, churches, convenience Stores, and residential
areas--all places where children congregate. Such evidence
provides significant support for the conclusion that The
Bear’s unrestricted availability created a real risk of
harmful exposure to minors. See State v. Pettit, 194 Ariz.
192, 197, | 23, 979 P.2d 5, 10 (App. 1998) (noting that it is
well settled that direct and circumstantial evidence have
equal probative value).
24 Finally, the Court in Playboy noted that the
government failed to account for a number of market-based
solutions to signal bleed, such as ‘programmable
televisions, VCR’s, and mapping systems (which display a
blue screen when tuned to a scrambled signal),” which are
available to parents and “may eliminate signal bleed at the
consumer end of the cable.” 529 U.S. at 82]. By failing to
account for the impact of these solutions, the government
made it “impossible to know how widespread the problem
in fact is.” Jd.; see also Id. at 820 (noting that “[t]he
Government made no attempt to confirm the accuracy of its
estimate [regarding the number of homes exposed to signal
bleed] through surveys or other field tests”). In contrast,
such market-based solutions are not available with respect
to sexually explicit newspapers such as The Beat, which are
sold on public street corners to anyone with two quarters.
Cf Southeastern Promotions, Ltd. y. Conrad, 420 U.S. 546,
557 (1975) (“Each medium of expression, of course, must
be assessed for First Amendment purposes by standards
suited to it, for each may present its own problems.”).
125 Accordingly, in view of this evidence, we hold that
the State provided adequate evidence that The Beat'’s
unrestricted availability posed a real risk of harmful
exposure, and thus supported the State’s exercise of its
compelling “independent interest in the well-being of its
youth.” Reno J, 521 US. at 865.
A Mics sansa i.e te, ctiepiogy
A-17
B. Less Restrictive Alternatives
426 Even though the State has a compelling interest in
shielding minors from the material in The Beat, A.R.S. §
13-3513 may still be unconstitutional “if less restrictive
alternatives would be at least as effective in achieving the
”
legitimate purpose that the statute was enacted to serve.
Id. at 874. Evenson and Amicus Curiae argue that the State
has failed to carry its burden of proof on this issue.
Specifically, Amicus Curiae argues that §13-3506 is an
equally effective, less restrictive alternative. Section 13-
3506(A) states that “[i]t is unlawful for any person, with
knowledge of the character of the item involved, to
recklessly furnish, present, provide, make available, give,
lend, show, advertise or distribute to minors any item that is
harmful to minors.'* We conclude that § 13-3506 is not an
equally effective, less restrictive alternative for at least
three reasons.
927 First, we fail to see how § 13-3506 is any less
restrictive than § 13-3513. On the contrary, to the extent
that the two statutes can be read to prohibit similar conduct,
§ 13-3506 is even more restrictive, subjecting Evenson to
criminal liability not only for displaying, selling or making
available material that is harmful to minors, but also for
furnishing, presenting, providing, making available, giving,
lending, showing, advertising, or distributing such
materials to minors. More importantly, unlike § 13-3513, §
13-3506 contains no safe harbor provisions that would
shield Evenson from criminal liability. The safe harbor
provisions of § 13-3513 permit Evenson to place modified
vending machines anywhere he chooses. In contrast, an
= The statute was amended in 2001 to add “transmit” and
“offer” to the list of conduct that is prohibited. The amendment does
not affect our analysis. See 2000 Sess. Laws, ch. 189, § 25.
A-18
unmodified vending machine’s location near a school could
easily support a jury finding of recklessness under § 13-
3506. Overall, enforcing § 13-3506 on The Bear, and other,
similar publications, would chill far more speech than does
§ 13-3513.
28 Second, we are persuaded by the reasoning of the
Ninth Circuit, which concluded that a California statute
almost identical to A.R.S. § 13-3513 was narrowly tailored
SO as to be the least restrictive alternative to serve the
State’s compelling interest. There, the court found that
“[g]iven the unusually easy availability of materials in
these unsupervised newsracks,” California’s — statute
“balanced the competing interests of protecting children
from the harmful effects of consuming adult-oriented
newspapers with the interest of adults in having access to
those materials” by narrowly limiting children’s ability to
purchase such materials, while still allowing adults to
purchase these materials. Crawford vy. Lungren, 96 F.3d
380, 387 (9th Cir. 1996).'?
29 Third, like the California statute at issue in
Crawford, the Arizona legislature provided a “safe harbor”
to prosecution under A.R.S. § 13-3513(B) (2). Unlike the
safe harbor provisions deemed illusory in Playboy because
. Evenson argues that a recent Ninth Circuit decision, Alameda
Books, Inc. v. City of Los Angeles, 222 F.3d 719 (9th Cit. 2000),
‘seriously backtracks” from the rationale of Crawford. Several factors
compel us to disagree. First, and most importantly, Alameda addressed
the secondary effects of a zoning ordinance. The Court in Playboy
stated such cases are irrelevant to the question raised here because of
the “lesser scrutiny afforded” in reviewing zoning regulations that
target secondary effects of adult businesses. 529 U.S. at 815. Second,
Alameda never discussed Crawford. Third, the Supreme Court granted
certiorari in Alameda Books. See 33 U.S.L.W. 3585 (U.S. Mar. 5,
2001) (No. 0O—799).
A-19
they were not economically practical, retrofitting The
Beat’s vending machines to accept tokens does not appear
to be economically impractical. Cf Playboy, 529 U.S. at
808-10, 812. A detective testified that the vending
machines could be retrofitted to accept only tokens, for
approximately $90 per machine. In other words, for a total
cost of about $20,000, Evenson could have taken advantage
of this safe harbor and equipped all 200-plus of the vending
machines to accept tokens. This does not seem to be a
particularly burdensome expense in light of the State’s
calculation that Vol. 33, No. 29 generated approximately
$17,000 in gross advertising sales.'* Moreover, many of
Evenson’s machines were near convenience stores,
presumably ideal locations to sell the tokens to adults.
930 We are mindful that when a state seeks to restrict
speech based on its content, the usual presumption of
constitutionality afforded legislative enactments is
reversed. See Id. at 816. However, we are also mindful that
§ 13-3513 does not impose an outright ban on this type of
material. That § 13-3513 imposes a burden rather than a
complete ban on Evenson’s and others’ First Amendment
right is critical to, though not determinative of, our
conclusion. We note that other courts have recognized the
significance of total speech bans when rendering a content-
based statute unconstitutional. See /d. at 823 (“nationwide
daytime speech ban”); Reno /, 521 USS. at 877 (“The
breadth of the CDA’s coverage is wholly unprecedented”’);
Sable, 492 U.S. at 128-29 (“There is no doubt Congress
enacted a total ban on both obscene and indecent telephone
communications.”).
14
Evenson contested the State’s estimates but refused to submit
any evidence documenting his financial situation. He did, however,
concede that he netted more than $2,000 per week from vending
machine sales of the publication.
A-20
jj! In cases involving content-based restrictions that
burden rather than ban speech, courts have been more
willing to uphold the regulation’s constitutionality. See
Pacifica, 438 U.S. at 733 (FCC declaratory order regulating
a certain indecent radio broadcast upheld in part because
the rule was not intended to place an absolute prohibition
on indecent language); Ginsberg, 390 U.S. at 639 (New
York law banning store owners from selling pornographic
materials to minors upheld in part because adults could still
buy the magazines); Crawford, 96 F.3d at 387-89 (statute
nearly identical to A.R.S. § 13-3513 upheld in part because
adults could “purchase the materials from alternative
sources or in alternative ways.”); People v. Hsu, 99 Cal.
Rptr. 2d 184, 194 (Cal. Ct. App. 2000) (California statute
banning the attempted distribution or exhibition of lewd
material to a minor over the Internet deemed constitutional
in part because adults could still disseminate the material to
other adults and minors if no intention of seducing the
minor was involved); see also Playboy, 529 U.S. at 838
(Breyer, J., dissenting) (describing § 505 of the CDA as a
“burden on adult channel speech” rather than “an absolute
ban”).
32 We believe A.R.S. § 13-3513 places a burden rather
than a ban on speech. It thus survives constitutional
challenge because adults can still purchase The Beat, albeit
from alternative sources or in alternative ways.
{33 For these reasons, we conclude that A.R.S. § 13-
3513 does not violate the constitutional protections in favor
of free speech. The statute furthers a long—recognized,
compelling state interest, and neither Evenson nor Amicus
Curiae have suggested, nor do we find, any less restrictive
alternative that is similarly practical and effective. See
Reno /, 521 U.s. at 874,'°
'S Amicus Curiae correctly points out that the Arizona Constitution
A-21
II. Equal Protection and Due Process
9434 Evenson next makes several arguments suggesting
that A.R.S. § 13-3513 is under inclusive, overbroad, vague,
and arbitrary,soas to violate both equal
protection and the requirements of due process. We address
each argument in turn.
435 First, Evenson contends that the statute is under-
inclusive because it does not regulate other purveyors of
sexually-explicit material, such as those on television,
radio, and the Internet. However, the Constitution does not
require lawmakers to deal with every problem at once. See
Denver Area, 518 U.s. at 757; 2 Chester James Antieau,
Modern Constitutional Law § 30.01 (2d _ ed.1997)
(“Lawmakers need not correct all problems of a like nature
in order to correct some; they may proceed ‘one step at a
time.””’).
436 Second, Evenson contends the statute is overbroad
because it could possibly apply to reporters, editors, and
others involved in the publishing industry. “‘An overbroad
statute is one designed to burden or punish activities which
are not constitutionally protected, but the statute includes
within its scope activities which are protected by the First
Amendment.’” State v. Jones, 177 Ariz. 94, 99, 865 P.2d
provides greater free speech rights than the United States Constitution.
See Mountain States Tel. & Tel. Co. v. Ariz. Corp. Comm'n, 160 Ariz.
350, 354, 773 P.2d 455, 459 (1989) . That greater protection, however,
lies in the Arizona Constitution’s extension of free speech rights to
cover not only speech limitations imposed by the government, but also
speech limitations emanating from other sources. /d. Because speech
limitations imposed by private actors are not at issue here, we conclude
that our analysis adequately supports the constitutionality of § 13-3513
under Article 2, section 6, of the Arizona Constitution.
A-22
138, 143 (App. 1993) (quoting John E. Nowak et al.,
Constitutional Law ch. 18, § III, at 868 (2d ed. 1983); see
also State v. McLamb, 188 Ariz. 1, 9, 932 P.2d 266, 274
(App. 1996). “[T]he overbreadth of a statute must not only
be real, but substantial as well.” Proadrick v. Oklahoma,
413 U.S. 601, 615 (1973).
{37 Here, A.R.S. § 13-3513 makes it unlawful for any
person to knowingly display, sell, or offer to sell material
that is harmful to minors from unmodified vending
machines. This language is clearly not meant to apply to
journalists, reporters, and the like. See State v. Cornish, 192
Ariz. 533, 537, | 16, 968 P.2d 606, 610 (App. 1998) (when
analyzing statutes, we apply practical common sense
constructions, not hyper-technical ones that would tend to
frustrate legislative intent). Indeed, those professionals
convey and edit information. They do not distribute or sell
materials, activities the statute is clearly directed towards.
Furthermore, nothing in the record, other than Evenson’s
allegations, suggests how far the statute could extend. In
other words, even if the statute was overbroad, we are not
convinced its reach would be substantial. See McLamb, 188
Ariz. at 10, 932 P.2d at 275 (“[T]here must be a realistic
danger that the statute will significantly jeopardize
recognized first amendment protections of individuals not
before the court.”).
{38 Third, Evenson contends that the statute is
overbroad because it fails to distinguish young children
from older minors. He argues that young children lack the
“sophistication” and money to buy papers from vending
machines, and therefore the legislature should not have
included them within the statute’s protected class.
According to Evenson, the legislature should have limited
the statute to apply to only “those reasonably expected to
have the age and maturity... to operate a vending machine.”
{39 We disagree with Evenson’s factual assertion that
A-23
today’s young children lack either the funds or the
“sophistication” to purchase The Beat from a vending
machine. See Crawford, 96 F.3d at 388 (“Any youth with a
few coins can access the materials in question.”’). Because
young children are also the most vulnerable and easily
impressed, we also disagree that they should not have been
considered within the statute’s targeted classification.
Moreover, because Arizona’s statutory definition of
“harmful to minors” expressly tracks the test for obscenity
approved by the United States Supreme Court, we fail to
see how it could be unconstitutionally overbroad. See
Miller, 413 U.S. at 24-26.'° |
440 Finally, Evenson contends that the A.R.S. § 13-
3513 is “fatally flawed” and “arbitrary and unreasonable”
because it applies only to vending machines. He argues that
this classification is “illogical” because it would not have
been an offense to give his publication to a minor.
Evenson’ s contention that targeting vending machines is
unreasonable fails because specific legislation exempting
one kind of broadcaster from an obscenity statute does not
violate the principles of equal protection. Ripplinger v.
Collins, 868 F.2cl 1043, 1050-51 (9th Cir. 1989)
(Arizona’s exemption of cable channels from former state
obscenity statute does not violate equal protection). Here,
the statute is directed at one method of selling indecent
materials and not at an entire broadcast medium. Thus, it is
quite clear that singling out coin-operated vending
machines does not violate equal protection. And Evenson’s
- For this same reason, we reject Evenson’ s suggestion that
A.R.S. § 13-3513 is unconstitutionally vague. A law violates due
process and is void on its face if “it is so vague that persons of common
intelligence must necessarily guess at its meaning and differ as to its
application.” Laurence H. Tribe, American Constitutional Law § 12—
31, at 1033 (2d ed. 1988) ; State v. Western, 168 Ariz. 169, 171, 812
P.2d 987, 989 (1991). .
A-24
suggestion that it would not have been an offense to give
his publication away is simply erroneous. As already noted,
A.R.S. § 13-3506 applies to persons who recklessly
“furnish, present, provide, make available, give, lend,
show, advertise or distribute to minors any item that is
harmful to minors.” Obviously, this stature would apply to
a situation in which Evenson gave away copies of The Beat
to children. His argument to the contrary is meritless, and
we therefore reject it. See State v. Altamirano, 166 Ariz.
432, 437, 803 P.2d 425, 430 (App. 1990) (noting that
courts avoid “statutory interpretation[s] that lead[] to
absurd results which could not have been contemplated by
the legislature”); State v. Arthur, 125 Ariz. 153, 155, 608
P.2d 90, 92 (App. 1980) (“[A] stature is to be given a
sensible construction that will accomplish the legislative
intent and at the same time avoid an absurd result.”) . We
therefore conclude that A.R.S. § 13-3513 comports with
both equal protection and due process.!’
CONCLUSION
{41 We affirm Evenson’s conviction based on three
conclusions. First, the State adequately showed a
compelling state interest by proving there was a real risk of
children being exposed to The Beat. Second, A.R.S. § 13-
3513 is the least restrictive means that is equally effective
in keeping harmful materials sold from vending machines
out of the reach of children, yet keeping such materials
reasonably accessible to adults. Finally, we reject Evenson’
S equal protection and due process arguments as meritless.
We therefore affirm.
17
Amicus Curiae also argues that The Beat is not harmful to
minors as a matter of law. But Evenson did not raise this issue. Amid
are not allowed to inject new issues on appeal. State v. Municipal Court
(Cantrell), 190 Ariz. 120, 121 n.l, 945 P.2d 1251, 1252 nl (1997). We
therefore decline to address this issue.
A-25
MICHAEL D. RYAN
Presiding Justice
CONCURRING:
ANN A. SCOTT TIMMER, Judge
JOHN C. GEMMILL, Judge
a
A- 26
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
STATE OF ARIZONA, 1 CA-CR 00-0621
Appellee, DEPARTMENT E
V.
MEMORANDUM
JEROME HENRY EVENSON, DECISION
(Not for Publication
- Rule 111, Rules of
the Arizona Supreme
Court)
Filed 10-30-01
Appellant.
Appeal from the Superior Court in Maricopa County
Cause No. CR 97-09901
The Honorable Frank T. Galati, Judge
AFFIRMED
Janet Napolitano, Attorney General Phoenix
By Randall N. Howe, Chief Counsel,
Criminal Appeals Section
Attomeys for Appellee
Jones, Skelton & Hochuli, P.L.C. Phoenix
By A. Melvin McDonald
Attorneys for Appellant
Jennings, Strouss & Salmon, P.L.C. Phoenix
By Stephen F. Lee
Attorneys for Amicus Curiae, Arizona Civil Liberties
Union
A- 27
RYAN, Judge
ql Jerome Evenson appeals his convictions and
sentences on thirteen counts of displaying, selling, or
offering to sell from a vending machine material that 1S
harmful to minors. See Ariz. Rev.Stat. (“A.R.S.”) § 13-
3513. (Supp. 1997). We addressed Evenson’s First
Amendment, equal protection, and due process challenges
in a contemporaneous Opinion. The relevant facts and
procedural history are discussed there. In this unpublished
memorandum decision we address Evenson’s claims of
error with respect to his sentence, prosecutorial
misconduct, denial of the right to a speedy trial, and denial
of a requested jury instruction. For the following reasons,
we find no error and thus affirm.
I. Sentencing
2 The trial court placed Evenson on three years
probation and imposed fines totaling $104,000.00, plus
surcharges.’ Evenson contends that the fine of $8,000 per
vending machine amounted to cruel and unusual
punishment. We disagree. Trial courts possess broad
discretion in sentencing matters and a reviewing court may
find an abuse of that discretion when the sentencing
decision is arbitrary and capricious. State v. Fillmore, 187
Ariz. 174, 184, 927 P.2d 1303, 1313 (App. 1995). While
criminal fines are subject to Eighth Amendment analysis, a
fine is excessive if it is “so disproportionate to the offense
that it shocks public sentiment and affronts the judgment of
reasonable people.” State v. Wise, 164 Ariz. 574, 576, 795
P.2d 217, 219 (App. 1990).
' The total amount levied amounted to $155,400 which the judge
allowed Evenson to pay at a rate of $2,500 per month, an amount
Evenson said he could afford.
a
A- 28
q3 We note that the trial judge did not impose any jail
time on Evenson. He also let Evenson pay the fines in
$2,500 installments, an amount Evenson said he could
afford. Moreover, the judge gave sound reasons for his
sentence:
The community has a right to try to protect
its children and I think, talking about being a parent
-- I am in the same position -- it is impossible, it is
close to impossible in today’s society to try to
shield your children from things you think are
inappropriate. I have to turn off sports talk shows in
the morning drive to work because my 14-year old
daughter is in the car, sports talk shows, KOME or
whatever it is. It’s outrageous, I think, and a lot of
people use that as mitigation for what you do. If you
can’t escape it on the radio, then why should we try
to regulate what Mr. Evenson does?
I think just the opposite. I think when the
legislature and this jury by its verdict tries to protect
children in the community, you have to take them
seriously, and that’s because of the special place
that children are held in, and the law recognizes it.
We have things called dangerous crimes against
children where the penalties for doing those kind of
things against children are astronomical compared
to other crimes in the state. So the protection of
children is something I have considered. Again,
irrespective of what I think about your publication
or what I think about the wisdom of the legislature,
the effort has been made to protect children and to
just dismiss it and say this isn’t worth a felony, this
isn’t worth any jail time, this isn’t worth a big fine,
just everybody go home and be nice, I don’t think
that’ s appropriate.
Pe ee ee ee ee ee
A- 29
14 Finally, the State estimated that Evenson’s gross
advertising revenue from Vol. 33, No. 29 alone was over
$17,000. See Wise, 164 Ariz. at 576, 795 P.2d at 219
(defendant’s income proper consideration in imposing
fine). Evenson contested this amount, but did not provide
any documentation of his financial status to contradict the
State’s calculations. We therefore do not believe the court
abused its discretion in imposing the fines that it did, nor do
the fines amount to cruel and unusual punishment.
Il. Prosecutorial Misconduct
q5 Evenson next contends that the prosecution engaged
in misconduct during his closing argument to the jury. The
statement at issue is as follows:
The verdict you send, and the State knows how
difficult it is in this case, but the State is asking for a
verdict. There are three verdicts that you could come back
with.
The first one would be a message to the State. You
could find the defendant not guilty, and that would tell the
State, I mean Mr. Romley, or whoever the county attorney
is, could still say, I’m against pornography, but that doesn’t
matter, you can still find him not guilty, and what that
would tell the state is don’t prosecute it.
But there are consequences to a verdict, whether it
goes either way. The consequences are, first of all,
probably will not enforce this statute, the statute probably
will have no teeth.
But the other consequence is that it will send a
message, not just to Mr. Evenson, but to the Swingers, the
Pleasure Guide, you’ve got free rein, do what you want.
A- 30
And the problem with that is -- there was testimony
about there are other publications that sell in stores or don’t
sell through vending machines that may have worse stuff.
A verdict of not guilty will send a message that
those people who, instead of having some protection with
adult control in the store, may start putting vending
machines out for their stuff too, and you’re going [sic] see
lots and lots more of these.
16 Evenson did not object to this argument at trial but
now claims it amounted to misconduct on the part of the
prosecutor. Failure to object at the time of trial waives a
claim on appeal absent fundamental error. State v. Jones,
188 Ariz. 388, 398, 937 P.2d 310, 320 (1997). Error is
fundamental only when it is “clear, egregious, and curable
only via a new trial.” Id. (quoting State v. Gendron, 168
Ariz. 153, 155, 812 P.2d 626, 628 (1991)).
7. “Although advocates are ordinarily given wide
latitude in closing argument, their comments must still be
‘based on facts the jury is entitled to find from the evidence
and not on extraneous matters that were not or could not be
received in evidence. State v. Leon, 190 Ariz. 159, 162,
945 P.2d 1290, 1293 (1997) (quoting State v. Dumaine,
162 Ariz. 392, 402, 783 P.2d 1184, 1194 (1989)). In
determining if a prosecutor’s closing remarks are improper,
courts consider: “(1) whether the remarks call to the
attention of the jurors matters that they would not be
justified in considering in determining their verdict, and (2)
the probability that the jurors, under the circumstances of
the particular case, were influenced by the remarks.” State
v. Jones, 197 Ark. 290, 305, 91 37, 4 P.3d 345, 360 (2000)
(quoting State v. Hansen, 156 Ariz. 291, 296-97, 751 P.2d
951, 956-57 (1988)), cert. denied, Jones v. Arizona, 121 S.
Ct. 1616 (2001).
~usneinetnnamiedumattotndretramrmene a
Bg Ne Oe oe aE, ee er Tes
A- 31
8 An argument could be made that by asking jurors to
consider the effect their verdict would have on future
actions of the county attorney, and on publishers of other
sexually-explicit publications, the prosecutor called
attention to matters the jury could not consider in deciding
the case. However, Arizona courts have found analogous
closing arguments by prosecutors permissible. See State v.
Walker, 181 Ariz. 475, 482-83, 891 P.2d 942, 949-50 (App.
1995) (“[E]very one of you who’s ever heard about the war
on drugs and wanted to do anything about the war on drugs,
this is your opportunity to see what is going on in the front
battle lines . . . .“). Our supreme court has said that
“arguments referring to the prevalence of crime, the duty of
the jury, and the efforts of the police in combatting crime
are not improper.” State v. Sullivan, 130 Ariz. 213, 218-19,
635 P.2d 501, 506-07 (1981) (“{T]he State depends on
people like you to send a message out to the pushers that
this is not going to be permitted anymore and that’s why
we are here today, to convict the defendant of this.”); State
v. Jararnillo, 110 Ariz. 481, 483, 520 P.2d 1105, 1107
(1974) (“You will never ... have a better opportunity to do
something about the drug problem, particularly about
heroin sellers, than you’ve got here today in court.”).
Furthermore, we note that during trial, testimony showed
that similar publications of The Beat were sold at vending
machines and that this was the first prosecution under the
new statute. Certainly, the jurors were already aware of the
message their verdict would send before the prosecution
made his closing arguments. Thus, we cannot say that the
prosecutor’s remarks rose to the level of fundamental
error.”
2 Evenson also contends that we should review the actions of the
Maricopa County Attorney to determine whether they merit reversal of
his convictions. The County Attorney conducted a press conference at
the scene of the first seizure of a vending machine. However, Evenson
A- 32
III. Speedy Trial
q9 Evenson also claims that his convictions should be
reversed on speedy trial grounds because the court
continued the matter forty days over his objection. See
Ariz. R. Crim. P. 8.2 (every person shall be tried within 150
days of arrest or service of summons). The State argues that
Evenson waived the issue by not raising it by special
action. Although it is preferable to raise Rule 8 matters on
special action, we cannot say Evenson waived the issue by
not doing so. See State v. Vasko, 193 Ariz. 142, 147, 991
23-24, 971 P.2d 189, 194 (App. 1998). Nevertheless, it is
clear that the trial court actually continued the matter’ for
Evenson’s benefit, as he had just informed the court that he
was in the process of hiring a new lawyer and was not
certain whether or not the new lawyer would conduct the
tial. See Ariz. R. Crira. P. 8.4(a) (delays occasioned on
behalf of defendant excluded from Kule 8.2 time limits) -
Thus, Evenson’s right to a speedy trial was not denied.
IV. Jury Instruction
410 Finally, Evenson claims ‘he trial court erred in
refusing to give the following jury instruction:
If you are unable to agree on what the views of the
did not raise this issue at trial. Hence, he has waived it absent
fundamental error. Gendron, 168 Ariz. at 154, 812 P.2d at 627.
Fundamental error is error that goes to the foundation of the case, takes
from the defendant a right essential to his defense, and is of such
magnitude that he could not have possibly received a fair trial. State v.
Hughes, 193 Ariz. 72, 86, J 62, 969 P.2d 1184, 1198 (1998) . Here, all
we can discern from the record is that reporters were present at the
scene during one of the vending machine seizures and that one of the
vice officers present agreed that the situation was a “media circus.”
Prom this, we cannot say Evenson was deprived of a fair trial.
A- 33
average person are on the subject of prurient or
patent offensiveness, then I instruct you to return a
verdict of not guilty on all counts.
The trial judge rejected this proposed instruction stating
that he did not think it “sensible.” Nor do we. The Supreme
| Court has explicitly stated:
A juror is entitled to draw on his own knowledge of
the views of the average person in the community
or vicinage from which he comes for making the
required determination, just as he is entitled to draw
on his knowledge of the propensities of a
“reasonable” person in other areas of the law.
Hamling v. United States, 418 U.S. 87, 104-05 (1974)
(emphasis added); see United States v. Easley, 927 F.2d
1442, 1449-50 (8th Cir. 1991) (quoting Hamling language
and rejecting jury instruction identical to that proffered by
Evenson). That the material in question would be
| considered “harmful to minors” to “the average adult
applying contemporary state standards” is an element of the
offense that is spelled out by the statute. There is no need
for the jury to make a more specific determination. See
State v. Grainge, 186 Ariz. 55, 59, 918 P.2d 1073, 1077
(App. 1996). That the jury returned a guilty verdict is
sufficient to show thaiD each panel member found The
Beat harmful to minors by contemporary state standards.”
> Nor is there any need for expert testimony on the issue of whether
material is harmful to minors. State V. Hummer, 184 Ariz. 603, 607,
911 P.2d 609, 613 (App. 1995).
A- 34
CONCLUSION
{11 | Evenson’s convictions and fines are affirmed.
MICHAEL D. RYAN, Presiding Judge
CONCURRING:
ANN A. SCOTT TIMMER, Judge
JOHN C. GEMMIL, Judge
A-35
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED IN THIS CASE
United States Constitution, Amendment I
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to
assemble, and to petition the Government for aredress
of grievances.
United States Constitution, Amendment V
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor
shall any person be subject for the same offence to be
twice pui in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property
be taken for public use, without just compensation.
United States Constitution, Amendment XIV, Section 1
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person
of life, liberty, or property, without due process of
law; or deny to any person within its jurisdiction the
equal protection of the laws.
— ee. ——
: 5 . ~~ ee Py ee a verre
A-36
Arizona Rev. Stat. § 13-3513
A. It is unlawful for any person to knowingly
display, sell or offer to sell in any coin-
operated or slug-operated vending machine or
mechanically or electronically controlled
vending machine that is located in a public
place, other than a public place from which
minors are excluded, any material that is
harmful to minors as defined in § 13-3501.
B. It is a defense in any prosecution for a
violation of subsection A that the defendant
has taken reasonable steps to ascertain that the
person is eighteen years of age or older and
has taken either of the following measures to
restrict access to the material that is harmful to
minors:
1. Required the person receiving the material that is
harmful to minors to use an authorized
access or identification card to use the
vending machine and has established a
procedure to immediately cancel the card
of any person after receiving notice that
the card has been lost, stolen or used by
persons under eighteen years of age or that
the card is no longer desired.
2. Required the person receiving the material that
is harmful to minors to use a token in order to
use the vending machine.
C. A person who violates this section is guilty of
a class 6 felony.
A-37
Arizona Rev. Stat. § 13-3506
A. It is unlawful for any person, with
knowledge of the character of the item
involved, to recklessly furnish, present,
provide, make available, give, lend,
show, advertise or distribute to minors
any item that is harmful to minors.
B. This section does not apply to the
transmission or sending of items over the
internet.
C. A violation of this section is a class 4
felony.
Arizona Rev. Stat. § 13-3501
In this chapter, unless the context otherwise requires:
1. "Harmful to minors" means that quality of any description
or representation, in whatever form, of nudity, sexual activity,
sexual conduct, sexual excitement, or sadomasochistic abuse,
when both:
(a) To the average adult applying contemporary state
standards with respect to what is suitable for minors, it both:
(i) Appeals to the prurient interest, when taken as a whole. In
order for an item as a whole to be found or intended to have
an appeal to the prurient interest, it is not necessary that the
‘tem be successful in arousing or exciting any particular form
of prurient interest either in the hypothetical average person,
inamember of its intended and probable recipient group or in
the trier of fact.
A-38
(11) Portrays the description or representation in a patently
offensive way.
(b) Taken as a whole does not have serious literary, artistic,
political, or scientific value for minors.
2. "Item" means any material or performance which depicts or
describes sexual activity and includes any book, leaflet,
pamphlet, magazine, booklet, picture, drawing, photograph,
film, negative, slide, motion picture, figure, object, article,
novelty device, recording, transcription, live or recorded
telephone message or other similar items whether tangible or
intangible and including any performance, exhibition,
transmission or dissemination of any of the above. An item
also includes a live performance or exhibition which depicts
sexual activity to the public or an audience of one or more
persons. An item is obscene within the meaning of this
chapter when all of the following apply:
(a) The average person, applying contemporary state
standards, would find that the item, taken as a whole, appeals
to the prurient interest. In order for an item as a whole to be
found or intended to have an appeal to the prurient interest, it
is not necessary that the item be successful in arousing or
exciting any particular form of prurient interest either in the
hypothetical average person, in a member of its intended and
probable recipient group or in the trier of fact.
(b) The average person, applying contemporary state
standards, would find that the item depicts or describes, in a
patently offensive way, sexual activity as that term is
described in this section.
A-39°
(c) The item, taken as a whole, lacks serious literary, artistic,
political or scientific value.
3. "Knowledge of the character" means having general
knowledge or awareness, or reason to know, or a belief or
ground for belief which warrants further inspection or inquiry
of that which is reasonably susceptible to examination by the
defendant both:
(a) That the item contains, depicts or describes nudity, sexual
activity, sexual conduct, sexual excitement or
sadomasochistic abuse, whichever is applicable, whether or
not there is actual knowledge of the specific contents thereof.
This knowledge can be proven by direct or circumstantial
evidence, or both.
(b) If relevant to a prosecution for violating § 13-3506, 13-
3506.01 or 13- 3507, the age of the minor, provided that an
honest mistake shall constitute an excuse from liability under
this chapter if the defendant made a reasonable bona fide
attempt to ascertain the true age of such minor.
4. "Nudity" means the showing of 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 male genitals in a
discernibly turgid state.
5. "Sadomasochistic abuse" means flagellation or torture by or
upon -a person clad in undergarments, a mask or bizarre
costume, or the condition of being fettered, bound or
A-40
otherwise physically restrained on the part of one so clothed,
for the purpose or in the context of sexual gratification or
abuse.
6. "Sexual activity" means:
(a) Patently offensive representations or descriptions of
ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of
masturbation, excretory functions, sadomasochistic abuse and
lewd exhibition of the genitals.
7. "Sexual conduct" means acts of masturbation,
homosexuality, sexual intercourse, or physical contact with a
person's clothed or unclothed genitals, pubic area, buttocks or,
if such person is a female, breast.
8. "Sexual excitement" means the condition of human male or
female genitals when in a state of sexual stimulation or
arousal.
9. "Ultin.ate sexual acts" means sexual intercourse, vaginal or
anal, fellatio, cunnilingus, bestiality or sodomy. A sexual act
is simulated when it depicts explicit sexual activity which
gives the appearance of consummation of ultimate sexual
acts.
A-41
COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
STATE OF ARIZONA
Plaintiff/Appellee,
V.
JEROME EVENSON
Defendants/Appellants.
1 CA-CR 00-0621
Department B
MARICOPA COUNTY
Superior Court
No. CR 97-09901
APPELLANTS' OPENING BRIEF
A. Melvin McDonald, #002298
JONES, SKELTON & HOCHULI, P.L.C.
2901 North Central Avenue, Suite 800
Phoenix, AZ 85012
Attorneys for Appellants
A-42
TABLE OF CONTENTS
TABLE OF AUTHORITIES ........scssssssssssssssssessessseeesesssees ii
STATEMENT OF THE CASE. ...sssccssssssseccsssssecesssssseesessss
STATEMENT OF PARTI oiccccccccdcsuusatcsoousncs 4
ARCHOMMINT ... sctern sign tema eaten mr se 16
CONCLUNMIIINE .cdiccucotaamen aes 63
CERTIFICATE OF COMPLIANCE vrsssscscssesssseneeee 64
CERTIFICATE OF MAILING .......ccsssscssessscssssesscsssseseesee 65
A-43
TABLE OF AUTHORITIES
CASES
Arizona v. Fulminante,
499 USS. 279, 310 (1991)
Baggett v. Bullitt,
377 U.S. 360, 372 (1964)
Barker v. Wingo,
407 U.S. 514, 92 S. Ct 2182 (1972)
Board of Trustees of State Univ. of N.Y. v. Fox,
492 U.S. 469, 480 (1989)
Coates v. Cincinnati, 402 U.S. 611 (1971)
Commonwealth v. Mascolo, et. al.,
7 Mass. App. Ct. 275, 396 N.E. 2d 1311 (1979)
Edenfieid v. Fane,
507 U.S. 761, 770-771 (1993)
Eisenstadt v. Baird,
405 U.S. 438 (1972)
Gooding v. Wilson,
405 U.S. 518, 521 (1972)
Greater New Orleans Broadcasting Assn., Inc. v.
United States, 527 U.S. 173,183 (1999)
In Re Lynch, 8 Cal 3d 410,
105 Cal Rptr 217, 503 P. 2d 921(1993)
A-44
Kolender v. Lawson,
a. eel ne ee OE iesenticscainioenicciekeceeasadseiredumktieied 44
Lanzetta v. New Jersey,
Pe ME og Me 0 Oe secntesnruisinsnicescemenstinasiaditiinusadeeuatedact 44
People v. Diaz, 179 Misc. 2d 946, 686 N.Y.S.2d 595
RMT ie A EM ON I 46
Pope v. Illinois, 418 U.S. 497 (1987) ..cccccceesees i avasalsilaania 52
R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992)... 22,23
Reno v. American Civil Liberties Union,
Doh U. B. BOG, OR STD C1GGF) ovo ccccssccsovescsvsecseocesosescscscesenses 21
Renton v. Playtime Theaters, Inc.,
OFF Si Oey OP Co widndiitiborcdnentclablaicnuiies 16
Shultz v. Peterson,
111 Ariz. 421, 422, 531 P. 2d 1128, 1129 (1975)... 54
State v. Day,
148 Ariz. 490, 715 P. 2d 743 (1986)...........:ccccccssccssssseeees 46
State v. Lee,
25 Ariz. App. 220, 225, 542 P. 2d 413, 418 (1975).......... 55
Tinker v. Des Moines Independent Community School Dist.,
RR 8, Re ee Oe ee, 17,21
United States v. Olano,
Pe Wk Fae FON Ci isnisnicteeietiincitied bate 59
A-45
United States v. Young,
470 U.S. 1, 15 (1985)........cceccccerereeessseeees itil aduiesencaiesanal 59
U. S. v. Coiro,
922 F.2d 1008 (2nd Cir. 1991)........:eeeceesseeeersetereeseeneeeens 44
U.S. v. Ellison, 193 F.2d 942 (8th Cir. 1986) .......esseeeseeees 48
U. S. v. Jones,
10 F.3d 901 (1Oth Cir. 1993) ....cecceseceeeereesesteseeeereeneennes 44
U. S. v. Kassouf,
144 F.3d 952 .......cscsccssscssscsssssosssesseeessssssessssessseesesssnsesens a
U. S. v. Mankowski,
120 F.3d 1078 (9th Cir. 1997) .....cccesceesesseseeeseeeeseeneeenes 44
U.S. v. Playboy Entertainment Group, Inc., 120 S.Ct. 1878
(decided May 20, 2000)..........::ssssessesseserreees 37, Ze doors
27, 28, 29, 30, 31,47
U. S. v. Tabara,
982 F.2d 100 (3rd Cir. 1992) ..sccssseecseeeenees Sent Re 4A
RULES AND STATUTES
ARS. $14 eee 20
ARS. § 13-3513
vaneiadekenieeaicnll 6, 7, 13, 14, 17, 18, 20, 33, 34, 37, 39, 42, 51, 60
A-46
Pt des @ LID OED siiskirtiiieiotntiaaiagea 16, 17,22
Rule 4.3(b), Arizona Rules of Criminal Procedure........... 53
Rule 8.2(a), Arizona Rules of Criminal Procedure...... 53, 54,
55
Rule 8.5(b), Arizona Rules of Criminal Procedure........... 54
OTHER AUTHORITY
541 CORE. FAs RBI ccccrctsnssinacneetenena oe ee
37 Cal. Law Rev. 341 (1969)......ercccscconssrssees siden nde 32, 33
Phoenix City Ordinance, Art. X, Sec. 36-131.01, A .....0000+ 20
S. Rep. No. 367, 103rd Cong., 2d Sess. 103 (1994).......... 25
Section 505 of the Telecommunications Act of 1996,
Pub. L. No. 106-106, FIO Stat. FSG ..cccccccosevesevsssccoscesacseeses 25
A-47
STATEMENT OF THE CASE
This appeal arises out of the criminal indictment, trial,
conviction and sentencing of long time newspaper publisher
Jerome Evenson.
During the 1997 legislative session, the Arizona State
Legislature enacted A.R.S. § 13-3513 into law. The new
statute, which makes it unlawful for any person to knowingly
display, sell or offer to sell in any coin-operated vending
machine any material that is "harmful to minors," became
effective July 21, 1997. In August of 1997, a search warrant
was served on 15 of Appellant's news racks. The racks,
newspapers, and coins were seized by police officials. On
September 4, 1997, Appellant Jerome Evenson, became the
first and only publisher ever charged under this new statute.
He was indicted on 15 counts. [A-1 From the outset,
Appellant refused to waive any of his rights, challenging the
jurisdiction of the court. 1A-31. One significant delay
occurred when Appellant's prior counsel was successful in
obtaining a dismissal of 14 of the 15 counts. The state filed a
notice of appeal of this ruling. Appellant, after discharging
his counsel, moved pro per, to have the court vacate the order
of dismissal and reinstate the courts so he could proceed to
trial IA-99; compare with IA-95; IA-101. The court
refused to reinstated the dismissed charges, delaying
Appellant's speedy trial right by approximately one year.
Appellant filed no paperwork in opposition to the State's
appeal.
Items in the “index on appeal" shall be referenced IA (i.e., the
indictment, which is Index Item 1, would be IA-1.) Trial Transcripts shall
be referenced TR followed by date, page and lines. Trial Exhibits will be
teferenced as Exh.
A-48
On March 20, 2000, after 2-1/2 years of delay,
including an appeal to the Arizona Court of Appeals by the
prosecution, (IA-73) Appellant's case subsequently went to
trial in the Superior Court of Maricopa County before the
Honorable Peter T. D'Angelo. On March 23, 2000, the jury
announced that they were hopelessly deadlocked, with nine of
the twelve jurors favoring acquittal. [A-132, 150, 151, 183,
185. A mistrial was declared, and the second trial was
rescheduled for May of 2000.
On May 11, 2000, the-second jury trial involving
Appellant commenced in Maricopa County Superior Court
before the Honorable Frank Galati. On May 16, 2000,
Appellant was convicted on 13 of the 15 counts. IA-237.
On August 17, 2000, Appellant's motion for new trial was
denied. C.R. 262. On August 23, 2000, Appellant was
sentenced to thirteen designated class 6 felonies, and placed
on three years felony probation.’ Appellant was fined
$166,400 ($8,000 per count plus a 60% surcharge). IA-258,
263, 264; TR-8/23/2000 @ 39:12- 40:8. On August 24,
2000, Appellant filed a timely notice of appeal. IA-259.
This court has jurisdiction to review this appeal pursuant to
A.R.S. §12-120.21(A)(1), 13-4031.
2
Two of the 15 newspaper racks did not have papers in them at the
time of seizure on August 27, 1997. As a result, the jury acquitted the
Appellant on these counts.
: The trial judge could have left the convictions undesignated,
imposing misdemeanor convictions at the conclusion of the sentence. The
trial judge instead mandated that all 13 counts be designated felonies. He
further directed that probation be extended an additional 3 years if the
fines were not paid.
A-49
STATEMENT OF FACTS
Appellant Jerome Evenson has been the owner and
publisher of the Beat Newspaper (formerly known as The
Bachelors Beat) since 1964. IA-11. The newspaper, which
has been published weekly in Arizona for over 33 years, is
sold from news racks. It is a tabloid-sized newspaper with
news, editorial opinions, photographs and advertisements
directed primarily to the interests of single and divorced
adults, the third largest segment of the population. IA-11;
Exh 2. The 15 charges arose out of the sale of a single
newspaper, dated August 22-28, 1997, identified as Volume
33, No. 29. IA-1 The 15 counts were based upon the seizure
of 15 newspaper racks and the newspapers contained in them.
IA-1.
At the time of the criminal indictment, the newspaper
contained the news, photos and features of World News
Syndicate (WNS). IA-11. The Beat has historically featured
news stories of public interest. TR-5/15/00 @ 101: 14-17;
TR-5/15/00 @ 164:21-23. Many of the news items are
simultaneously or subsequently carried on-zadio, TV and in
other general circulation media. Some stories address health
and sex themes, without being sexually explicit. Other
stories, editorials and columns address social and political
issues. Almost every edition includes an editorial page in
which the Appellant voices his opinions and comments on
current social, economic and political issues of concern to his
readers. Other writers’ opinions are often featured on this
page. Exh 2; IA-11; TR-5/15/2000 @ 100:22-24.
To financially support the newspaper, and Appellant's
often controversial opinions, the Beat prints advertisements
A-50
from many businesses such as night clubs, escort services,
models, masseuses, entertainers, social clubs and adult
bookstores. Exh. 2. Readers also advertise seeking to meet
other adults with similar interests in the classified “‘Personal”’
section of the newspaper. Many of these advertisers place
similar advertisements in the New Times, Arizona Republic,
Rep, Mesa Tribune and other general circulation newspapers.
IA-11.
While female breasts were exposed in a minority of
the advertisements in the August 22-28, 1997 issue, neither
male or female genitalia, or pubic hair, are displayed in the
newspaper; there are no four-letter words and no sexually
explicit or obscene language in the newspaper.. IA-11. A
careful examination of Volume 33, No. 29 (Exh. 2) discloses
the following facts:
b. There are a total of 193 Display
Advertisements in this issue;
1. 55 Display advertisements had topless
photos of dancers and models;
2. 138 Display advertisements had NO
topless females or nudity type photos;
4
In this issue, there was a news photo of a nude, deformed baby
resulting from the Chernoby] nuclear plant accident. Trial Exhibit 2.
A-51
c. 75% of the advertisements included city
issued licenses within the ad;
d. Topless photos covered only 16% of the total
printed area of the newspaper;
e. No language was found in the paper which is
not commonly found on radio or television,
f. There was no sexually explicit commentary or
news items.
The newspaper and its publisher, the Appellant, have
operated without arrest or prosecution from police and
prosecution agencies for over 33 years, selling 8,000 to
12,000 issues of the newspaper weekly. The paper fulfilled
an informational need for its intended audience, adult readers.
IA-11.
A.R.S. § 13-3513 does not criminalize actions by
publishers who "give away" rather than "sell" identical type
publications from comparable news racks. The new statute
imposes no requirement that any minor actually purchase or
be harmed by the offending paper. The statute makes no
attempt to distinguish between classes of minors, treating 5
year old children identically with teenagers. The statute
requires no showing as to whether minors are even exposed
to, are interested in, or ever patronize vending machines
containing questionable newspapers. The new statute does
not allow any meaningful or realistic defenses, nor does it
offer any contemporary guidelines for application. See A.R.S.
§ 13-3513.
The new law went into effect July 27, 1997. A
meeting was held at the Maricopa County Attorney’s Office
A-52
with police officials from numerous valley cities in
attendance to determine a method of enforcing this new law.
It was decided at the meeting to take no action unless a citizen
filed acomplaint. TR-5/15/ 00 @ 16:5-18:3 On August 26,
1997, a mere five weeks after the effective date of the new
statute, and after four more issues of the newspaper were
published, police officials, having received only one citizen
complaint, obtained and executed search warrants
authorizing the seizure of 15 of the Beat newspaper’s 235
news racks in Maricopa County. IA-1.
The trial testimony revealed that the criminal
investigation against Appellant arose out of a single
complaint levied by an adult 67 year old male, with no minor
children. The complainant, Alfred Nelson, felt that he and his
neighborhood group were the "ears and eyes of the police
department." TR-5/11/00 @ 4:10-14. At trial, Witness
Nelson and three police officers testified for the state.
Nelson told jurors that he made it his practice to drive around
the neighborhood acting as a member of Block Watch for the
police. TR-5/11/00 @ 4:17-20 Nelson téstified that in
August of 1997, he had gone to a Circle K at 7th Avenue. He
claimed that he went in to get a newspaper and found a Beat
paper sitting on top of a rack outside of the Circle K Store.
TR-5/11/00 @ 5:8 - 6:2. He saw other newspapers inside the
rack. He claimed that he put the newspaper back on the rack,
and later called police because he didn't feel that this
newspaper should end up in the hands of children. TR-
5/11/00 @ 7:13-19. Nelson admitted that his own children (2
sons and 1 daughter), to his knowledge, had never purchased
or seen a copy of the Beat newspaper, TR-5/11/00 @ 13:13-
17; 17:16-19 even though he had lived in the same house for
21 years. TR5/11/00 @ 13:8-10. He knew of no minors who
had ever been exposed to or seen the newspaper. TR-5/11/00
@ 13: 18-22. He admitted that no one in the neighborhood
A-53
had ever complained about the Beat newspaper to him as part
of his "Block Watch" duties TR-5/11/00 @ 15:20- 16:1. He
claimed that he was not offended by the Beat newspaper. TR-
5/11/00 @ 16:7-15; TR-5/11/00 @ 18:25-19:2) nor did he
witness any minors interested in either the vending machine
or the newspapers in the machine. TR-5/11/00 @ 19: 3-5.
He has never seen any minor pay 50¢ to purchase a Beat
newspaper, nor had he seen any minors with copies of a Beat
newspaper. TR-5/11/00 @ 20:18-23. What is particularly
chilling about this record is the fact that a publisher stands
convicted of 13 felonies on an undisputed record that there is
no evidence, anywhere, that any minor has ever seen, let
alone purchased, a Beat newspaper in its 33 years of
existence. TR-5/11/00 @ 13:18-22; TR-5/15/00 @ 3:17-23;
TR-5/11/00 @ 47: 10-13; TR-8/23/00 @39:15-20.
Appellant filed several motions to dismiss for speedy trial
violations. [A-37; IA-47, IA-114; IA-192. Appellant filed
notices with the court indicating that he would not arbitrate
his rights nor would he waive his rights. 1A-31; 1A-77; 1A-
137.
: Nelson told Phoenix Police Detective White, when he made his
initial complaint, that he had been provided the Beat newspaper at a
neighborhood association meeting, and never claimed that he found the
newspaper sitting on a Circle K store newspaper rack as he told the jury.
(TR-5/15/00 @ 87:25-88:2; 105:16-20; 110: 15-19; compare with
Nelson’s testimony at TR-5/11/00 @ 5:8-6:2; 14:13-20; 15:1-5) The
Detective further testified that Nelson had received an earlier issue at the
neighborhood meeting but that this issue was no longer in news racks. It
was the Detective who asked Nelson to go and buy the August 21-27,
1997 issue. (TR-5/15/00 @ 88:10-21) Nelson had additionally told the
officer that he had reviewed the entire newspaper and was offended.
Nelson's wife was sitting with him when the report was made to police.
(TR-5/15/00 @ 100:13-17;114:15-23) Nelson had told the trial jury that
he and his wife had never read or discussed the Beat paper. The officer
noted that this testimony was not true; that Nelson and his wife were
A-54
Sergeant Ken Thatcher, the second trial witness, was a
17 year veteran with the Chandler Police Department. He
testified that has never received a complaint about the "Beat"
from any citizen in Chandler, (TR-5/15/00 @ 33: 12-16) nor
had he ever conducted any investigation involving any
allegation that the "Bear" ended up in the hands of any child.
TR-5/15/00 @ 33:17-23. The seizure in Chandler had
nothing to do with the victimization of any minor under 18.
TR-5/15/00 @ 33:24- 34:2. Indeed, when Detective
Thatcher went to two separate locations to view the Beat
Newspaper through the Plexiglass prior to the seizure, he
could not see anything which he considered to be "harmful to
minors". TR-5/15/00 @ 35:4-8. Thatcher had attended a
meeting on August 21, 1997, one month after the new
legislation took effect, to lay out a strategy for a
simultaneous, concerted action between different
municipalities on the first case to brought under the new
statute. TR-5/15/00 @ 16:9-17:6.
The third witness to testify was Detective William
White of the Phoenix Police Department. Detective White
knew of no seizures of this newspaper during the preceding
11 years until the seizure in this case. TR-5/15/00 @ 42:17-
20 White confirmed that a "task force" type planned sweep
once someone who was a citizen reported a violation of the
statute. He had no information from Mesa, Chandler or
Scottsdale which prompted the prosecution. TR-5/15/00 @
102: 9-14 He testified that there were some 200-230 racks of
sitting together discussing the paper when he met with them. (TR-5/15/00
@ 106:1-5; compare with 5/11/00@15:10-19)
imarar
A-55
Beat throughout the entire valley in 1997. TR-5/15/00 @
102:18-25. Detective White felt there was nothing in the
newspaper, Exhibit 2, which was directed towards minors,
and that the defendant Evenson was making no attempt to get
his newspaper into the hands of minors. TR-5/15/00 @
107:10-12. In all of his years of working the vice detail,
Detective White had never received a complaint about a
minor obtaining possession of the Beat. He similarly was
never involved in any type of investigation against the paper
between 1995 and 1997. TR-5/15/00 @ 107:17-21; 110:1-9.
White admitted that he had no knowledge of any investigative
leads involving one child who was ever harmed by the Beat
during the 33 years of its publication. TR-5/15/00 @ 127:1-
5.
Detective White testified that the Beat news
publication is directed toward adults, not minors. He further
believes that the defendant was not attempting to distribute
his newspaper to minors. TR-5/15/00 @ 112:22-25; 131:5-9
Detective White agreed that the Arizona Republic carries
provocative advertisements similar to the Beat, as do other
general circulation valley newspapers. TR-5/15/00 @
113:10-14; 120:17-19. Detective White admitted that
genuine pornographic materials are readily available to
minors on the Internet and-are far worse and more damaging
to youth than anything he has ever see in the Beat newspaper.
TR-5/15/00 @ 119:3-8. Detective White told the jury that
A.R.S. § 13-3513 is so ambiguous and vague that "we don't
know this is obscene." He leaves the decision of “harmful to
minors” up to the public, not police or prosecutors. TR-
5/15/00 @ 116:15-25; 117:5-10. Appellant's trial counsel
aggressively attacked the indictment on the same grounds as
those acknowledged by Detective White, i.e. ambiguity and
overbreadth. IA-12; 53. Detective White acknowledged that
there is vulgarity on numerous television shows seen by
minor children every day. TR-5/15/00 @ 118:18-24.
- A-56
Detective White further conceded that there is far more
nudity, both in numbers and in explicit content, in Playboy
magazine and over the internet, than has ever been shown in
the Beat. He further emphasized that the presence of topless
nudity in this newspaper did not make it a crime. TR-5/15/00
@ 119:2-18; 124:14-22.
A-57
Detective White gave a chilling account of the
circumstances surrounding the execution of these search
warrants. White testified that a group of senior Phoenix police
officials and the County Attomey, Richard Romley, staged a
circus type media event at the first location of the police
seizure. The County Attorney was interviewed by the media
at this same location. Detectives were ordered to wear "ski
masks" to conceal their identity. Detective White admitted
that the scripted media event potentially placed the lives of
undercover offers in danger and that the Indian School
location would not have been the first search location for
serving the warrant had it not been for the planned media
event. TR-5/11/00 @ 134:15-23; TR-5/15/00 @ 69:25-
71:16; 107: 22 -108: 7; 109:8-12.
Detective White admitted that the methods suggested
by A.R.S. § 13-3513 for avoiding criminal sanctions were
essentially meaningless. For example, the legislature had
suggested that special tokens might be manufactured to access
vending machines. White acknowledged that such tokens
would be easily duplicated and that this proposed safeguard
was very expensive, costing an estimated $100.00/machine.
TR-5/15/00 @ 120:20-121:12. The other legislative
suggestion, which contemplated machines with "pass through
magnetic cards" was impractical. Indeed, the only device he
had seen replicating this legislative suggestion were ATM
machines. TR-5/15/00 @ 121:12 - 122:13. Since there were
no electrical outlets on street corners where vending machine
racks were located, this alternative could not be feasible.
The fourth and final witness was officer Anthony
Lythgoe of the Mesa Police Department. Detective Lythgoe,
like the other states witnesses, had never investigated or
known of any complaint against the Beat regarding purchase
A-58
or possession of Beat newspapers by minors at any time in his
law enforcement career. TR-5/15/00 @ 161:6-10. Detective
Lythgoe was not aware of any child ever purchasing any Beat
newspaper from any of the 17 locations in Mesa. TR-5/15/00
@ 161:11-13; 169:4-7. Mesa Police never did any type of
surveillance to determine whether or not minors purchased or
had any interest in the Beat newspaper. TR-5/15/00 @ 168:5-
7. Mesa Police left no warning on any of the remaining
newspaper stands not taken as a part of this raid. TR-5/15/00
@ 169: 17-21. Lythgoe stated that the Mesa Police decided
to just seize 5 of the 17 machines in Mesa only because of an
issue of storage since the news racks take up a lot of space.
TR-5/15/00 @ 145:18-20.
During the course of the pretrial and trial proceedings,
Appellant vehemently challenged the Constitutionality of
A.R.S. § 13-3513 (IA-12) based upon grounds of vagueness,
overbreadth and arbitrariness, the unreasonable prior restraint
created by the statute and subsequent seizure of news racks
(IA-13, IA 187), the fact that Exhibit 2 (the alleged
newspaper in question) was not harmful to miners as a matter
of law (IA-21), various motions to dismiss based upon denial
of speedy trial (IA-37, IA-190). The Appellant also
vehemently objected to jury instructions submitted by the
state and given by the court, as well as the court's failure to
give some of its own jury instructions. TR-5/16/00 @ 13:18-
14:13; TR-5/16/00 @ 14:18-16:9.
The trial record was undisputed that no child had
actually ever been purchased or been exposed to the Beat
newspaper. The Deputy prosecutor, in the presence of the
jury panel, conceded that the state knew of no child who had
purchased or seen the paper. TR-5/15/00 @ 120:20-121:12.
The trial judge, at sentencing, expressly found that there was
"..no complaint of any parent saying my kid got hold of
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this..." TR-8/3/00 @ 39:17-18. Complaining witness Nelson
TR-5/11/00 @ 13:13-17; 17:16-19, Detective White, TR-
5/15/00 @ 127:1-5.; Sergeant Thatcher TR-5/15/00 @ 33:
12-23 and Detective Lythgoe TR-5/15/00 @ 161:6-10 all
agreed that they had never received complaints about the
newspaper impacting minors in any way.
ARGUMENT
I. WHEN A LEGISLATIVE BODY ENACTS A
STATUTE WHICH IS USED TO TARGET AND
PROSECUTE “CONTENT BASED”
PUBLICATIONS PRINTED FOR AND
DIRECTED TO AN ADULT SEGMENT OF THE
POPULATION, AND CRIMINALIZES THE
ACTS OF THE PUBLISHER IF THE
CONTENTS OF THE NEWSPAPER MAY
POTENTIALLY BE “HARMFUL TO MINORS,”
DOES THE CONSTITUTION REQUIRE THAT
THE STATE PRESENT EVIDENCE OF
ACTUAL HARM TO MINORS?
A. Newspaper publications and their
representatives are afforded the broadest
and most sweeping protection's under the
U.S. Constitution. Whenever government
attempts to infringe upon the freedoms of
speech or the press, the Government must
prove beyond a reasonable doubt that the
harm sought to be protected is real, and not
speculative.
A.R.S. § 13-3913 is a “content based” law directed at
a newspaper sold from newspaper vending machines. A
regulation is content-based if it is aimed at inhibiting the
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expression itse!f. Conversely, a regulation is "content-neutral"
if it is designed to control only secondary effects resulting
from the protected expression. Renton v. Playtime Theaters,
Inc., 475 U.S. 41, 49 (1986). Newspapers, because of the First
Amendment speech and press protections, are provided the
broadest protection's available under the U.S. Constitution.
In Greater New Orleans Broadcasting Assn., Inc. v.
United States, 527 U.S. 173, 183 (1999), the Supreme Court
held that the First Amendment mandates close scrutiny when
government imposes restrictions on speech. See also Board
of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480
(1989). The State bears a clear and heavy burden to justify
any restrictions imposed against speech. Tinker v. Des
Moines Independent Community School Dist., 393 U.S. 503,
509 (1969); U.S. v. Playboy Entertainment Group, Inc., 120
S. Ct. 1878 (May 20, 2000). The U.S. Supreme Court has
mandated that nights to free speech or free press cannot be
curtailed unless the restriction “directly and materially
advances the asserted government interest.” The New
Orleans decision held that this burden cannot be sustained by
hypothetical speculation but by hard, demonstrable facts.
This burden is not satisfied by mere
speculation or conjecture; rather, a
governmental body seeking to sustain a
restriction on commercial speech must
demonstrate that the harms it recites are real
and that its restriction will in fact alleviate
them to a material degree. (Citing Edenfield
v. Fane, 507 U.S. 761, 771 (1993)). See also
Board of Trustees of State Univ. of N.Y. v.
Fox, 492 U.S. 469, 480 (1989)
The State has dismally failed to justify the constitutionality of
‘
A-61
A.R:S. § 13-3513 with hard, demonstrable facts. There is no
evidence that minors are attracted to these news racks, or that
any minor under 18 was ever exposed to the issue Volume 33,
Number 29.
B. The government bears a “heavy burden” to
explain why a less restrictive provision
would not be as effective.
The government must not only prove that a harm is
real by substantial evidence, but must further demonstrate that —
there is no “less restrictive provision” to curtail the perceived
danger. As the Edenfield decision noted:
The breadth of this content-based restriction of
speech impeses an especially heavy burden on
the Government to explain why a less
restrictive provision would not be as effective
... ; Edenfieid v. Fane, 507 U.S. 761, 770-771
(1993). °
The legislature’s tortured attempt to impose “less restrictive
provisions” in A.R.S. § 13-3513 fails for two reasons:
1. the evidence fails to demonstrate that this
newspaper presents a genuine harm to minors, and
2. the defenses provided by the statute are
inpractible and unworkable.
The record is clear and uncontested that no minor has
been seen or observed possessing or purchasing this paper
from a vending machine. Even if such evidence did exist, the
proposed statutory defenses are meaningless and totally miss
the mark.
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A.R.S. § 13:3513 B1 and 2 makes it a defense if the
publisher somehow requires access to his news racks by
means of a pre-issued identification card, further requiring
that a procedure in place to immediately cancel any card once
it is discovered that the user is under 18. This defense is
patently unworkable and is nothing more than a camouflage
attack to eliminate the publisher from doing business from his
news rack. The cards contemplated by the statute are similar
to ATM cards. The prohibitive costs of applying for the card,
printing the card, providing the technology for processing the
card, and locating electrical outlets on street comers to
operate such a sophisticated system, make the alternative
suggestion ludicrous.
The other suggested defense is substitution of a token
for U.S. coins. The use of tokens would likewise not be
feasible. Detective White placed the cost at approximately
$100.00 per news rack, plus the costs of conversion. These
costs would exceed the cost of the rack itself, and drive the
publisher out of business. The legislature has further failed to
suggest how the Appellant is supposed to get these tokens in
the hands of adults wanting to purchase the newspaper.
Detective White acknowledges that these remedies appear to
te unworkable or infeasible. TR-5/15/00 @ 120:20-123:17.
There are other alternatives available to the publisher
of the Beat newspaper but they are equally impractical.
Appellant could put the newspapers on sale in adult
businesses. But then the papers would not be available from
1:00 a.m. to 8:00 a.m. The State legislature orders those
businesses to be closed during those hours. See A.R.S. $ ]3-
1422. Also, many adult customers who might want to buy the
newspaper feel uncomfortable going into an adult
establishment to buy it. It would have the effect of driving
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Appellant out of business. Additionally, since the Beat
newspaper is already being sold in those outlets, removal of
the news racks from the streets would reduce the circulation
80 to 90 percent, a level where it would no longer be
financially possible to continue publication. The legislature
did not suggest how a publisher could make his coins readily
available to valley visitors wanting to purchase a copy of the
newspaper.
Another alternative considered would be to have
adults “hawk” the papers to passing motorists, or those
stopped at signal lights. But the City of Phoenix, in February
of 1997, the same time frame when A.R.S. § 13-3513 was
adopted by the legislature, passed an ordinance which
prohibits selling anything to a person in a vehicle on the city
streets. See Phoenix City Ordinance, Art. X, Sec. 36-
131.01,A. The City of Phoenix, with the highest density of
population, is the primary circulation area of the Beat
newspaper in Arizona.
The defenses and alternatives to Appellant are non-
existent. Either continue publication under the vague law,
risking further prosecutions from a publicity minded,
politically ambitious County Attorney who oversees each
publication with his invisible but potent arm of the law, or
cease publication. These alternatives are contrary to the
intent of the First Amendment and violate the rights of the
Appellant.
OF The State carries a strong burden of
demonstrating justification for the
restrictions imposed by statute.
The United States Supreme Court, in Tinker v. Des
Moines Independent Community School Dist., 393 U.S. 503,
A-64
509 (1969), held that “[T]he State bears the burden of
justifying its restrictions ...”” The court added
In order for the State ... to justify prohibition
of a particular expression of opinion, it must
be able to show that its action was caused by
something more than a mere desire to avoid
the Ciscomfort and unpleasantness that always
accompany an unpopular viewpoint.
The State must prove, when content based legislation
attacks free speech and free press, that there is an actual harm
taking place to minors by the publication of the Beat
newspaper, Volume 35, No. 29. See also Reno v. American
Civil Liberties Union, 521 U.S. 844, at 879 (1997). The
State has utterly failed in this burden, and the consequences
of this failure take on constitutional dimensions.
D. Content-based regulations are
presumptively invalid. The Government
bears the burden of rebutting the
presumption of invalidity. A.R.S. § 13-
3913, being directed against newspapers, is
presumed tv be invalid.
When the State for federal government seeks to
restrict speech based on its content, the usual presumption of
constitutionality afforded congressional or state enactments is
reversed. “Content-based regulations are presumptively
invalid.” U.S. v. Playboy Entertainment Group, Inc., 120
S.Ct. 1878 (decided May 20, 2000). The Government bears
the burden to rebut that presumption. See R.A.V. v. St. Paul,
505 U.S. 377, 382 (1992). When Congress or state
legislatures atteinpt to restrict or punish “content based
speech,” their actions should be subject to strict scrutiny.
A-65
U.S. v. Playboy Entertainment Group, Inc., supra. The State
of Arizona, in the trial of Appellant Evenson, dismally failed
to rebut this presumption of invalidity, by failing to provide a
single piece of evidence that any minor in this state is, or ever
has been, harmed by the contents of this newspaper.
E. The case of United States v. Playboy
Entertainment Group, Inc. mandates that
the jury verdict, judgment and sentence be
reversed and the prosecution dismissed
with prejudice. The conviction violates
fundamental constitutional free speech and
due process rights in that:
}.
the statute levy's a direct assault on
content-based speech which is, at
worst indecent, not obscene;
the state was unable to show or
demonstrate that any minor, in
thirty-three (33) years of weekly
publications, has ever been exposed
to, possessed or had purchased the
Beat newspaper;
the state was unable to show,
through the mouth of any witness,
that any minor ever saw or was
exposed to the August 1997, Volume
33, No. 29 issue of the Beat;
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4. the State failed to produce any
expert testimony showing that this
newspaper could or would be
harmful to any minor;
5. the State did not initiate any
investigative techniques to see if
minors were actually purchasing or
examining the Beat through coin-
operated machines. There was no
law enforcement surveillance of any
of the 230 racks, no_ video
surveillance camera's to observe
activity, or no parental complaints
aboutaccess to vending machines by
their minor children.
The United States Supreme Court, in the last term,
rendered a major ruling in United States of America v.
Playboy Entertainment Group, Inc., supra. That decision is
dispositive of this case and mandates a reversal of these
convictions and dismissal of these charges.
In the Playboy decision, the action arose out of
Congress' efforts to address the problem of "signal bleed" on
cable television channels that carried and marketed sexually
explicit, "adult" programming to cable customers. Signal
bleed occurred when cable companies partially scrambled or
otherwise blocked the signal on sexually explicit channels, in
an effort to deprive those who did not pay for such channels
of a clear signal. Because the scrambling technology meant
that success was only partial, intelligible video and audio
signals remained, and were transmitted to all households on
the cable system. As a result, children in those households
A-67
that did not subscribe to Playboy's programming services,
would potentially be exposed to viewing and hearing
uninvited sexually explicit programming in the privacy of
their homes.
According to the government evidence, millions of
households nationwide received cable television. Cable
customers in these millions of homes could order premium
programming on a pay-per-view basis, permitting the
customer access to sexually explicit programming for a
specified additional fee. The technology limitations of the
scrambling lacked the sophistication to eliminate "signal
bleed." Non-subscribing households around the country were
receiving signal bleed "adult programming” signals in their
homes. Any child turning to an adult channel could hear
sexually explicit conversations, and observe partial images of
nudity and sexual activity. This phenomenon created a
political uproar, prompting Congress to take action.
Congress enacted Section 505 of the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110
Stat. 136, to address the problem. Congress, in the legislative
history, noted that it was "aware that some cable systems
[were] permitting ‘adult’ programs that [were] clearly
unsuitable for children to be received in the home without
sufficient scrambling.” S. Rep. No. 367, 103rd Cong., 2d
Sess. 103 (1994). Senator Feinstein, one of the sponsors of
Section 505, explained that "[p]arents * * * come home after
work only to find their children * * * watching or listening to
the adults-only channel, a channel that many parents did not
even know existed.” 141 Cong. Rec. $8167 (daily ed. June
12, 1995). As an example, she referred to the fact that a
"partially scrambled pornography signal was broadcast only
one channel away from a network broadcasting cartoons and
was easily accessible for children to view."
A-68
To alleviate this problem, Section 505 required cable
operators to “fully scramble or otherwise fully block the
video and audio portion” of channels that provide primarily
“sexually explicit adult programming.” They were further
required to show the “indecent” or “sexually explicit adult
programming” only during so-called safe-harbor hours of
10:00 p.m. to 6:00 a.m. when children were not likely to be
viewing the programming. Playboy Entertainment brought
an action in the United States District Court challenging the
constitutionality of the statute. :
In comparing the harm contemplated by the Playboy
with the harm contemplated by the Beat, Playboy's product
pales the Beat in potential harm to minors.
1. Playboy's product, exhibiting full frontal nudity
and explicit sexual intimacy between adults hour after hour
on a television screen, is far more harmful to minors than the
weekly Beat newspaper, which at worst displays topless
women in a minority of its advertisements;
2. Playboy's cable product is dramatically more
intrusive, potentially going into every home of every cable
customer in America, even where adults within that home do
not subscribe to the service. The Beat newspaper, on the
other hand, does not intrude in any home, is not sold,
distributed or mailed to any home. It is locked in news racks
and requires 50¢ to purchase a copy.
3. Playboy's cable potential for harm to minors
dwarfs the potential harm contemplated by the Beat
newspaper. Playboy's service accessed approximately 40
million homes throughout the United States. The Beat
distribution in Maricopa County averages 8,000 to 12,000
A-69
copies per week.
4. The protected class (minors) is dramatically more
at risk with the explicit video and audio of Playboy than with
the Beat newspaper. Any child flipping a channel is at risk of
viewing graphic sex through signal bleed, from toddlers
through teenagers. There was hard evidence in the Playboy
record of small children being "transfixed" by scenes of "a
naked man sodomizing a woman" and the "groans and
epithets that go along." Since the Beat is locked in a news
rack effectively precluding access to smaller children, its cost
of 50¢ preclude's younger children from every acquiring a
paper.
Newspapers in this country have dual constitutional
protection's of "free speech" and "free press." Congress
(targeting Playboy) and the State Legislature and the County
Attorney (targeting the Beat) enacted, and applied, legislation
directed against Playboy and the Bear for the same identical
reasons - to protect minors. The two targets, Playboy and the
Beat, sell products which are, at worst, indecent, not obscene.
Each entity has First Amendment protection's. The issues
and rationale of Playboy is clearly controlling in this case.
The court in Playboy Enterprises ruled that indecent
speech, unlike obscene speech, is entitled to First Amendment
protection. Playboy held that government officials could not
suppress the free-speech rights of adults in order to protect
minors from objectionable material unless the law was very
narrowly defined. The court identified the problem as
follows:
First, we shall assume that many adults
themselves would find the material highly
offensive; and when we consider the further
A-70
Circumstance that the material comes
unwanted into homes where children might
see or hear it against parental wishes or
consent, there are legitimate reasons for
regulating it.
Adults have a constitutional right to view the Beat
Newspaper, just as they have the right to view Playboy cable
programming. Adult advertising in the Beat might disturb
some adults, but every adult in this country who chooses has
a right to purchase and read the Beat newspaper. Since the
newspaper and commentary is not obscene, speech contained
within this paper cannot be suppressed under the guise of
"harmful to minor" statutes unless compelling evidence is
established which justifies government prosecutions.
The Supreme Court of the United States, in Playboy,
held that even though admittedly damaging bleed signals
were entering peoples homes when parents were not at home
to supervise their children, that fact alone did not justify
curtailing free and protected speech.
The speech here, all agree, is protected
speech; and the question is what standard the
Government must meet in order to restrict it.
As we consider a content-based regulation, the
answer should be clear: The standard is strict
scrutiny. This case involves speech alone; and
even where speech is indecent and enters the
home, the objective of shielding children does
not suffice to support a blanket ban if the
protection can be accomplished by a less
restrictive alternative.
A-71
The Supreme Court mandated that before Congress
could curtail Playboys right to send its signal, the government
had to prove that "signal bleed" was actually being seen by
children, lots of them. The court wrote:
The District Court began with the problem
of signal bleed itself, concluding "the
Government has not convinced us that
[signal bleed] is a pervasive problem." Id., at
708-709, 718. The District Court's thorough
discussion exposes a central weakness in the
Government's proof: There is little hard
evidence of how widespread or how serious
the problem of signal bleed is. Indeed, there
is no proof as to how likely any child is to
view a discernible explicit image, and no
proof of the duration of the bleed or the
quality of the pictures or sound. To say that
millions of children are subject to a risk of
viewing signal bleed is one thing; to avoid
articulating the true nature and extent of the
risk is quite another. Under §505,
sanctionable signal bleed can include
instances as fleeting as an image appearing
on a screen for just a few seconds. The First
Amendment requires a more careful
assessment and characterization of an evil in
ASSOoSTIOIN Gl ee eee Oo ee
order to justify a regulation as sweeping as
this. Although the parties have taken the
additional step of lodging with the Court an
assortment of videotapes, some of which
show quite explicit bleeding and some of
which show television static or snow, there
is no attempt at explanation or context; there
is no discussion, for instance, of the extent
A-72
to which any particular tape is representative
of what appears on screens nationwide. 120
S. Ct at 1889.
The Supreme Court, in striking down the legislation,
mandated that government authorities had to prove and
establish the quantitative effect of "signal bleed" in actual
documented cases before Playboys right to carry its signal
could be impeded. In other words, the government had to
demonstrate the pervasiveness of the alleged problem? Was
the "signal bleed" occurring in one home or ten thousand
homes? Had only one child been exposed to the sexually
explicit programming, or had it been 100 or 1,000 or 10,000?
The question is whether an actual problem has
been proven in this case. We agree that the
Government has failed to establish a
pervasive, nationwide problem, justifying its
nationwide daytime speech ban."
120 S.Ct. at 1891.
The State of Arizona has failed to provide a single
instance where any minor, even one minor, has ever been
exposed to the newspaper in question. The legislature
designed a mischief in enacting A.R.S. § 13-3513, and then
chilled free speech by creating a hypothetical evil that does
not appear to exist. Despite the newspaper’s 33 years of
operation, the State has failed to provide a single instance
where a minor possessed or purchased a "Beat newspaper."
Playboy Enterprises demands that the government actually
prove, by quantitative numbers and qualitative facts, that the
mischief targeted by the legislature is actually impacting
minors in a significant way before arbitrary roadblocks can be
constructed in a democracy. The state simply cannot chill
A-73
free speech and a free press by interfering with publication of
the message and criminalizing the messenger under the guise
of hypothetically protecting minors. Even in a case where
the facts clearly dernonstrated that some children were
exposed to harmful "bleed" signals and where access to
explicit and graphic sexual activity potentially intruded into
millions of American homes, the government could neither
criminalize nor legally restrict sale of a product targeted for
adults under the guise of harming children. The State of
Arizona has dismally failed to produce any evidence that
minors are exposed to the Beat, and, in fact, the State has
conceded failure during the course of the trial. Playboy
Enterprises mandates reversal of the judgment and sentence
and dismissal of these criminal charges.
F The state could have easily developed
evidence to show whether or not the Beat
newspaper, sold from a news rack,
provided any type of rational danger to
minors. They failed to make any attempt to
show this paper placed minors at risk.
The State not only failed to produce any evidence of
potential risk to minors, but it didn't even attempt to gather
such quantitative or qualitative evidence. There was no
police surveillance activity directed towards any of the 230
news racks in Maricopa County to see if minors even had any
interest in these newspapers. Police did not attempt to set up
video surveillance cameras to observe traffic at Beat news
racks. No witnesses ever saw any minors possessing a
newspaper, looking through the protective glass, or trying to
acquire the offending newspaper issue, or any prior issue.
Indeed, if this tiny newspaper was having a harmful effect on
minors, one would suspect that parents would be calling law
enforcement authorities complaining about their children
A-74
purchasing or possessing this paper. None of the state's
witnesses had ever heard of any such complaint. There is no
evidence of any kind to support this perceived risk to minors.
Ih. HAS THE STATE LEGISLATURE ENACTED A
STATUTE DIRECTED AT THE PRESS WHICH
ARBITRARILY AND UNREASONABLY
CLASSIFIES THOSE SUBJECT TO
PROSECUTION UNDER A.R.S. § 13-3513? IS
THE STATUTE CONSTITUTIONALLY
DEFECTIVE BECAUSE IT _ IS OVER-
INCLUSIVE AND UNDER-INCLUSIVE IN ITS
SCOPE?
In September of 1949, Professor Jacobus tenBroek
and Professor Joseph Tussman co-authored one of the most
far reaching scholarly law review articles of the last century.
Their brilliant and critical analytical masterpiece, entitled
"Equal Protection of the Laws," was first published in the
California Law Review and has been cited by scholars and
courts and featured in law textbooks for half a century. See
37 Cal. Law Rev. 341 (1949); See also Appendix A.
The two scholars discussed the distinction between
"general" laws (laws which apply without qualification
equally to all persons) and "special" laws (which apply to a
limited class of persons.) Robbery is a general law. Any
person who, without the consent of the owner, points a gun at
a human being and, under force or threats, takes their
property, falls within the scope of that law. There are no
exceptions for rich or poor, black or white, learned or
uneducated, citizen or non-citizen. The prohibitions of the
law are clear and the class targeted under the statute is
unambiguous.
A-75
"Special laws," on the other hand, are uniquely
different. They do not apply to all people. By their very
terminology, they include some people and exclude others.
A.R.S. § 13-3513 is a special law, on its face and as applied,
targeting a newspaper publisher who sells his product from
vending machines.
For a “special” law to pass constitutional scrutiny, the
last must be reasonable. As Professors tenBroek and
Tussman noted:
A reasonable classification is one which
includes all persons who are similarly situated
with respect to the purpose of the law. The
purpose of the law may be either the
elimination of a public "mischief" or the
achievement of some positive public good.
(Emp. added)
A.R.S. § 13-3513 is a "Special Law." The critical
criteria in evaluating any statute is to determine the
reasonableness of the classification. in deciding the
reasonableness of the classification, and hence its
constitutionality, a court must take into account the purpose
of the law, and determine whether the group defined by the
legislation is reasonably included in the legislation. A court
must scrutinize a statute to determine if people possessing the
trait are excluded and, if so, why they are excluded. Ifa
group of people possessing identical traits as the "included"
group are "excluded," the statute is unequal and violative of
the constitution. Professor tenBroek and Tussman describe
such a statute as "under-inclusive. On the other hand, when
the scope of the criminal statute is so broad and sweeping that
it reaches out and ensnares "innocent" citizens within the
same mischief classification, such a statute is overbroad or
A-76
"over-inclusive". A.R.S. § 13-3513 is over-inclusive, under-
inclusive, and arbitrary.
A. A.R.S. § 13-3513 unreasonably excludes
others who are identically or similarly
situated and whose materials are far more
accessible and damaging to minors. A.R.S.
§ 13-3513 is therefore uncoustitutional
because it is "und.er-inclusive."
The subject statute used to charge Mr. Evenson is
"under-inclusive" and fundamentally unequal and
unconstitutional. The trial record demonstrate the absurdity of
this classification. Materials that are significantly more
"harmful to minors," are readily accessible to minors in forms
far more damaging than this innocuous 50¢ newspaper found
on street corners once every week. If the mischief sought to
be corrected by this statute is to identify and penalize those
who provide or make available material harmful! to minors,
the legislature has fired their salvo and tragically missed the
broad side of the barn with this legislation.
There is overwhelming evidence that virtually every
minor child in this country is exposed to the television and, to
a lesser extent, the internet and other forms of communication
many thousands of times more damaging than anything in this
newspaper. The mischief supposedly caused by the Beat
newspaper is literally dwarfed by audio and video
programming seen and heard daily on local radio and
television, in local movie theaters, on the internet, in video
arcades, in bookstores, and even our public libraries. The
lyrics and musical content found on CD's and music video's,
readily available to minors, advocate and encourage
promiscuity and rampant violence. The poison messages of
violence, with dozens of murders each day on television, are
A-77
only a portion of the problem. Studies conducted of children’s
programming contain 20 violent acts each hour. The filthy
language and rampant sex dwarf the so-called harm of this
tiny newspaper. From the soap operas to Jerry Springer,
children, from their most tender years, are exposed to an
endless stream of simulated sex acts and other unmitigated
trash, while the Beat news>aper carries no foul language, no
explicit sexual material, se.ni-nudity is limited to only topless
photos of models and dancers.
The damage to minors arising from other publications
and media, the Beat newspaper’s competitors, is well
documented and is not limited to television, cable or satellite
services. The local newspapers and television stations have
widely reported stories about underage minors, under age 17,
being admitted to local movie theaters showing "R" rated
movies filled with sex, nudity, vulgarity, and violence.
Minors, 14 and older, are legally permitted to attend movies
displaying nudity with nothing more than a “PG rating”
attached, for parental notification. Commitments from theater
managers to exclude under-age minors has been a joke.
Virtually every conceivable type of lascivious material can be
found on the internet, in book stores, or within the library.
The description of President Clinton's activities with Monica
Lewinsky, carried in all major metropolitan newspapers,
dwarfs the explicit content of the Beat newspaper.
If the Arizona legislature really intended to take action
against sources providing material genuinely harmful to
children, did they run out of ideas when they passed A.R.S.
§ 13-3913? Why are the movie theaters excluded from the
prohibited class? Why are the television writers, entertainers,
and networks excluded? What protection's existed in public
libraries to prevent children accessing books and internet
materials far more risque than this weekly newspaper in 1997,
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when these prosecutions were initiated? Where are the
songwriter’s and entertainers who, through dazzling rap
messages or enticing musical melodies or rhythm, seduce our
youth with messages of promiscuity, lewdness, hate and
violence? This legislation, for obvious political purposes,
attacks a non-existent hypothetical problem which affects no
minors while leaving untouched those who produce and
exhibit to minors a sea of filth and vulgarity which flood our
homes and schools and airwaves.
B. The Statute is unconstitutional because it
creates an arbitrary and unreasonable
classification - it applies only to Coin
Operated Machines where products are
"sold."
A.R.S. § 13-3513 is fatally flawed by an irrational
classification that ties criminality to "coin operated"
machines, especially when the item being offered or sold is
not illegal, in and of itself. It is not illegal for minors to have
this newspaper, nor would parents be considered unfit if they
permit their minor child to see the newspaper. The absurdity
of this legislative classification is evident. It would not have
been a crime for Mr. Evenson to give away his newspaper
from a news rack in the same manner as the New Times. His
placement of his newspaper in a vending machine news rack
only becomes a crime because he requires the purchaser to
deposit two U.S. minted coins in a machine to acquire it. This
classification is illogical and unconstitutional. If Mr.
Evenson placed the identical newspaper on the internet,
television, cable or on the shelves of a local bookstore or in a
public library, there would be no criminal liability. Where
there is no reason, related to the purpose of the act, that would
justifying exempting certain select groups from its
restrictions, a law violates the Equal Protection Clause.
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Eisenstadt v. Baird, 405 U.S. 438 (1972). The Phoenix public
library does not use news racks, but has materials just as
explicit on the shelves for minors to possibly see. They make
the Internet available for free to minors, which mean that they
can access hard core pornography in the library. IA-11
If the Arizona State Legislature was genuinely seeking
to prohibit minors from gaining access to "The Beat,"
inducing Mr. Evenson to start making his newspaper
available “free” rather than selling it would dramatically
increase the risk of exposure to minors. If it was free, a minor
could simply walk up and take one, like the public does with
the New Times, or the Spectrum Weekly, a local gay
newspaper. Being locked in a display case which will not
open without a deposit of 50¢ excludes all minors except
those who would think it is worth two of their valuable
quarters to purchase the publication. Why should a publisher
who creates a paper solely for distribution to adults be subject
to prosecution if he sells that material for 50¢, but not be
prosecutable if he chooses to give it away? Ifthe newspaper
was genuinely harmful to minors, it would be just as harmful
if they paid 50¢ as it would be if they received it for free.
Indeed, the 50¢ price tag would discourage more than
encourage a minor from removing a copy of the paper from a
news rack.
The record before this court demonstrates that Law
enforcement authorities cannot prosecute the publisher of a
homosexually oriented newspaper, even if minors line up to
take a copy from a newspaper rack, because it is free. TR-
5/15/00 @ 112:6-8. A photograph of competing newspapers
are seen in Exhibit 9, positioned next to one of the seized
racks of Appellant.
A-80
.. A.R.S. 13-3513 is "over-inclusive" in that
it's prosecutorial scope can include writers,
publishers, printers, and those who deliver
and fill the news racks. Due to the
vagueness of the statute, and the whims of
the Prosecution, innocent citizens can easily
be included within the offending targeted
class defined in A.R.S. § 13-3513.
A.R.S. § 13-3513 is unconstitutionally vague and
overbroad. The lead detective testified:
—Q. So this being a moral issue, most of
the code is based on morals. Thou
shall not kill. Thou shall not steal.
Those are moral issues?
A. That's correct. It is pretty obvious
when somebody was killed, they are
dead. Whereas, we don't know this is
obscene.
TR-5/15/00 @ 117:5-10
The trial judge referenced the ambiguity and
vagueness of the statute on several occasions before the jury.
I will tell you this is not the clearest law I
have seen, but never the less, you'll be asked
to apply the law. And irrespective of what
your personal opinion is about what the
publication is, you are going to be asked to
apply the legal standards.
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TR-5/11/00 @ 39:25-40:5
Judge Galati highlighted the vagueness problem in an
exchange with appellant’s prior counsel, Tom Thinnes.
Mr. Thinnes: Like you told the jury, this is
one of these cases that you've
never had before.
THE COURT:I agree. I agree with your
description earlier about trying
to catch smoke in a net, a lot
of that seems to be the case
here. To me, we're sort of
throwing it in their lap (the
jury's) and saying, Okay, tell
us what the crime is, and to
me, I've never been in that
position before.
TR-5/16/00 @ 15:22-16:2.
Prosecutor Campagnolo admitted the ambiguity of the
statutory guidelines for this offense to the trial jury in his voir
dire examination. TR-5/11/00 @ 106:15-25. He told the jury:
_..the State's proof, as the law tells us, is the
issue itself, and that is what you must
determine, and it is difficult, and the law--
perhaps it can't be clearer. It would be nice if
it could be. Justice Stewart, who is a Supreme
Court Justice, well, back in the sixties, I think
it was there longer than that, but in the sixties
there was a comment he made about
obscenity, and he said, I can't define it, but I
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know it when I see it. And, fortunately, or
unfortunately, that is what the obscenity
harmful to minor statutes are. It is what you
decide as a community standard is harmful to
minors.
TR-5/16/00 @ 56:12-25
Appellant’s trial counsel filed numerous pretrial
motions challenging the statute for vagueness and
overbreadth. IA-12, 13, 19, 53, 187, 188, 272. The record is
clear that Appellant made attempts to change his newspaper
after the implementation of the new statute but apparently did
not do enough to satisfy the County Attorney. Exh.1
(9/18/98)
Jerome Evenson stands before this court convicted of
crimes which the lead detective, the prosecutor, and the trial
judge could not figure out or define. The simple truth, from
the mouths of virtually everyone connected with this case, is
that not one person — the prosecutor, judge, or police officers,
by their own admissions — know the meaning of this law, yet
the Appellant, a non-lawyer, is supposed to have fair notice of
its meaning.
The Appellant, like all other publishers, cannot
operate in a vacuum. Publishers are all aware of what is
available in the community and nation. They must take all
that information into account when measuring “contemporary
standards.” This new law depends on a description of
“harmful to minors” drafted in 1964. The standards of
decency have changed dramatically over those years for
adults and minors. Standards change gradually, and that is
just one of the reasons for our Constitution’s First
Amendment -- to allow the media to change with the times
A-83
without dictates from government or those who disagree.
To be charged with a crime, the Appellant had a
constitutional right to know what the crime was — in advance.
It is difficult 1o imagine anything more chilling to the First
Amendment than the standards and criteria applied in this
case. The Appellant now has to edit and publish his
newspaper with the invisible censorship hand of the County
Attorney staring over his shoulders.- He, and all other
publishers, remain at the censorship mercy of any prosecutor
who might choose, on a given week, to silence the voice of
the press.
A-84
Is it any wonder that the first jury trial vote was 9-3
for acquittal, and that the second jury, on identical facts,
voted for conviction. What is it that Mr. Evenson did to
violate A.R.S. § 13-3513? Was he prosecuted because there
were female models and dancers depicted in his newspaper
with bare breasts? A recent federal court ruling allowed
topless women to march in protest in New York. Is Mr.
Evenson permitted to publish a photograph of the topless
protesters in his newspaper? Are bare breasted photo's
permissible in reporting news events, but prohibited in
advertising?
A statute is over-inclusive when classes of people,
unaware that their conduct may be perceived as criminal, and
without fair notice of particular substantive criminal elements
that would otherwise subject them to prosecution, stand at
risk of being prosecuted for a crime. If a citizen complains
about the Starr Report being printed and published in the
Arizona Republic, and purchased by his minor child from a
vending machine rack, is the editor, the note editor, the rack
delivery man, or others connected with the newspaper subject
to prosecution? If Mr. Evenson covers the breasts of females
in his publication, can he be assured that he will not be
prosecuted in the future; or must he take his chances as to the
varying attitudes of jurors and their retroactive findings?
To avoid being unconstitutionally vague, a statute
must provide clear and adequate notice of the activity it
prohibits. Although the Constitution does not impose
"impossible standards of clarity" on Congress or State
Legislatures, ordinary people should understand the
prohibitions, and the statute should not encourage arbitrary
enforcement. Kolender v. Lawson, 461 U.S. 352, 361 (1983).
With First Amendment issues, the undesirable effect of self-
A-85
censorship makes this a heightened concern. Baggett v.
Bullitt, 377 U.S. 360, 372 (1964). The United States Supreme
Court has demanded specificity in statutes to protect against
this precise type of danger to common citizens. See Lanzetia
v. New Jersey, 306 U.S. 451, 453 (1939); Gooding v. Wilson,
405 U.S. 518, 521 (1972) (citing Coates v. Cincinnati, 402
U.S. 611 (1971). More recently, in U. S. v. Jones, 10 F.3d
901 (10th Cir. 1993), U. S. v. Coiro, 922 F.2d 1008 (2nd Cir.
1991), U.S. v. Tabara, 982 F.2d 100 (3rd Cir. 1992) all ruled
that where there is ambiguity in a criminal statute, doubts
must be resolved in favor of defendant and it applies to
prohibitions as well as penalties. The 6th Circuit Court, in
1998, in U. S. v. Kassouf, 144 F.3d 952, held that courts
should interpret statutes that impose criminal liability
narrowly to ensure proper notice to the accused. In the case of
U. S. v. Mankowski, 120 F.3d 1078 (9th Cir. 1997), the 9th
Circuit held that the due process clause of the U. S.
Constitution requires a statute to be sufficiently clear so as to
not cause persons of common intelligence necessarily to
guess at its meaning and to differ in its application.
To sustain Appellant’s conviction, based upon the
ambiguity of this statute, would be unconscionable. The
statute is unconstitutional vague and overbroad and
unconstitutionally chills the freedoms of speech and press.
Ill. DID THE TRIAL JUDGE’S IMPOSITION OF
AN EXCESSIVE AND ARBITRARY FINE
FURTHER SERVE TO CHILL PUBLISHERS
FIRST AMENDMENT RIGHTS?
If, as Detective Lythgoe implied, the City had a larger
storage facility, would the city have seized all of Mr.
Evenson’s news racks? He stated, in response to a question:
A-86
We just found five machines that were
somewhat spread throughout the City of
Mesa. We chose to not get all 17 machines
just because of the issue of storage and they ~
take up a lot of space.
TR-5/15/00 @ 145:17-20
An over-zealous prosecutor, or police officer, if he
had the storage space, could have filed 235 criminal
complaints on exactly the same evidence. The prosecutor
even recognized the overreaching of the indictment by
requesting the trial jury to at least convict on some counts if
they felt there was overreaching. TR-5/16/00 @ 62:11-
63:21.
Using the judge’s line of reasoning for determining
the fine, the fine could have been in excess of $3 million had
Appellant been charged on each of his racks. That is such a
staggering prospect that it puts a chilling effect on all
newspaper publishers. The existing fine of $8,000 per news
rack, plus 60% surcharges, violates the 8th Amendment laws
against cruel and unusual punishment. Jn Re Lynch, 8 Cal 3d
410, 105 Cal Rptr 217, 503 P. 2d 921 (1972); People v. Diaz
179 Misc. 2d 946, 686 N.Y.S.2d 595 (Sup. Ct. 1999). As
noted in State v. Day, 148 Ariz. 490, 715 P. 2d 743 (1986), in
determining whether a punishment is so disproportionate to
the offense as to be cruel and unusual, consideration is to be
given to the degree or danger which the offense and the
offender present to society, to punishments prescribed in the
same jurisdiction for more serious offenses, and to
punishments prescribed for the same offense in other
jurisdictions.
If this sentence stands, it sends a message to the
A-87
County Attorney to take 30 racks or 50 racks the next time he
seeks to silence the voice of a publisher/detractor. It will take
only one seizure for one paper to forever silence the voice of
an unpopular voice from the press.
IV. SHOULD THE ACTIONS OF THE COUNTY
ATTORNEY’S OFFICE BE THE SUBJECT OF
“SPECIAL SCRUTINY” WHEN WEIGHING
THE CHILLING ACTIONS AGAINST A
POLITICALLY UNPOPULAR NEMESIS FROM
THE PRESS?
A. The actions of the Maricopa County
Attorney, in orchestrating a media event
for the seizure of news racks, with police
officers being ordered to wear ski masks in
115 degree temperatures, should be
scrutinized by this court.
The United States Supreme Court, in Playboy
Enterprises, emphasized the need for special scrutiny in free
speech cases. It is the Appellant’s belief that this scrutiny
should focus towards the actions of the Maricopa County
Attorney.
It is apparent from the record that the actions directed
against Appellant went far beyond boundaries of propriety
and were designed and calculated to chill the Appellant’s
editorial critiques, discouraged his readers from buying the
newspaper and possibly created a media event for the County
Attorney’s own aggrandizement. Contrary to normal
prosecutorial protocol, the TV and other media were notified
prior to the time of the seizure, and invited to attend the
execution of the first search warrant, with the County
Attorney on hand. Where typical police search warrant
A-88
affidavits are sealed so that police agencies can work under
the element of surprise, the County Attorney’s Office,
according to the lead detective, created a media frenzy by
tipping off television stations and the print media to the
seizure. In this carnival atmosphere, undercover police
detectives were ordered to wear “ski masks” and were
diverted from their normal procedures to create an attraction
which would feed that media frenzy. There is something
chilling in the fact that a newspaper and news rack are seized
by six masked police officers wearing ski masks in the
presence of television and print media.
In the case of U.S. v. Ellison, 193 F.2d 942 (8th Cir.
1986), the court held that it was an outrageous act of
government to use approximately 300 agents to execute a
search warrant for one individual. The County Attorney did
not have 300 officers, but was it necessary to have six
undercover, ski-masked officers to serve a single warrant on
an inanimate object tied to a pole? Obviously, they did not
expect an adult to be on hand to give them resistance.
These actions of the County Attorney’s office run
against the very grain of normal prosecutorial protocol. More
importantly, they send a chilling message to those in the
media who might serve the reading preferences of an adult
minority within our population. The actions of the County
Attorney not only tainted this trial, and were a part of the
evidence and arguments of counsel. TR-5/16/00 @ 48:18-
49:12; TR-5/16/00 @ 57:1-18 There was no need for the
County Attorney to conduct a media spectacle designed to
tarnish Appellant’s right to sell his paper, to cause his racks to
be fair game for public zealots, and to impede appellant's
right to receive a fair trial as a result of the chilling images of
ski-masked agents seizing newspapers and newspaper racks
in a democracy.
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A-89
V. IS A.R.S. §13-3513 "OVERBROAD" BECAUSE
IT FAILS TO NARROW ITS APPLICATION TO
THOSE REASONABLY CAPABLE OF
PURCHASING NEWSPAPERS FROM COIN
OPERATED VENDING MACHINES?
During the course of pretrial hearings, and during the
time for settling instructions, serious damage was done to the
"fair trial" rights of the Appellant because of the failure of the
trial court to properly limit consideration of the protected
class to those who would reasonably have the maturity and
sophistication to access a coin operated vending machine.
One of the serious constitutional defects in the statute was the
failure of the legislature to distinguish between small children
and older minors. The mischief which the legislature
purportedly sought to punish was the availability of the
allegedly harmful Beat newspaper, always sold at a price of
50¢, being available for purchase by a minor from a news
rack. However, certain classes of minors could not or should
not have been rationally included within that definition.
In reviewing the voir dire, it is readily apparent that
many of the prospective jurors who voiced concerns about
publications like the Beat perceived that the statute should be
considered with small children in mind. In other words, they
perceived their duty to be to evaluate the "harm" from the
eyes of a small child exposed to the newspaper. See TR-
5/11/00 @ 42:25; 43:13; 45:25
During voir dire examination, the judge incorrectly
instructed the jury on the standard they must use to decide
this case:
The Court: You'll be asked to judge
whether or not, applying the
A-90
contemporary State standards
in August of '97 in this
material, among other things,
you have to decide if it fit the
definition of harm to children,
if it is.
Juror Rudy: But they could get their hands
on it. That's what I mean.
Court: I think that is what the statute
is designed to prevent, yes,
children having access to
material deemed harmful.
Juror Rude: Material, yes.
Court: The issue in the case is: Is the
material harmful to children?
This is one of the issues. You
can decide whether or not it is
harmful to children even
though you have children or
grand children.
TR-5/11/00 @ 47:20-48:8
It was grossly unfair and misleading for the court to
suggest that this law was targeted at smaller children, or
should even be measured with small children in mind.
Smaller children lack the coordination and sophistication to
buy papers from news racks. They could not get the money
save and except it was given to them by a parent. Smaller
children would not be unsupervised on busy street corners
where the racks are located without the supervision of a
A-91
parent. The practical effect of this statute is that most
children, particularly younger children under 10, would never
rationally buy the paper The legislature should have directed
that the class of minors targeted for protection should be
restricted to those reasonably expected to have the age and
maturity to be able to operate a vending machine.
It is patently obvious that citizens would become less
concerned about the "harm" of the Beat depending upon the
age of a child. If the child is 3 to 12 years old, most people
would probably feel that it would be far better to keep adult
oriented newspapers away from them. The older the child,
the lesser the concern of the newspaper. When children are in
their teens, their knowledge and sophistication about sexual
matters is significantly greater than it was in their tender
years.
It is therefore obvious that the class at greatest risk
happens to be the class which would lack the coordination,
sophistication and iunds to even buy a Beat paper. The
legislation sweeps "all" minors into its net; even those minors
who could not physically or intellectually ever gain access to
the paper.
Judge Hutt recognized a spin-off issue regarding this
problem in her minute entry of September 21, 1998. The
issue was whether A.R.S. §13:3513 was "over-broad" by
failing to narrow its application within the group of protected
persons. In denying Appellant’s motion to dismiss on that
ground, the judge at least recognized that the ages of the
protected class should be distinguished and recognized. She
ruled:
_if a work is found to have serious literary,
artistic, political or scientific value for a
A-92
legitimate minority of normal, older
adolescents, then it cannot be said to lack such
value for the entire class of juveniles taken as
a whole... -
919 F.2d 1505.
It is thus the State's burden to show that the
material is harmful to the group as a whole. If
part of the group, such as a reasonable
seventeen year-old would find serious value in
the material, then the material is not harmful
to minors. Pope v. Illinois, 418 U.S. 497
(1987). IA-67, 69
The problem for the State in this case is that the
legislative classification, which includes all minors from birth
to age 18, unfairly includes those who could not possibly gain
access to the vending machines. Since jurors were instructed
to include this "small child" class in their consideration, the
instructions were erroneous and the case must be reversed.
VI. WAS THE DEFENDANT DENIED HIS
STATUTORY RIGHTS TO A SPEEDY TRIAL
UNDER RULE 8.2 (a), ARIZONA RULES OF
CRIMINAL PROCEDURE
Rule 8.2(a), Arizona Rules of Criminal Procedure,
entitles a defendant to a speedy trial within 150 days of the
arrest or service of summons. A motion to dismiss was
timely filed on April 21, 1998. IA-37.
On September 8, 1997, Appellant received a summons
which did not comport with the requirements of Rule 3.2 (b)
of the Arizona Rules of Criminal Procedure. On September
A-93
18, 1997, Appellant appeared involuntarily for his
arraignment. On October 31, 1997, defense motions were
filed. A status conference was then held on November 3,
1997. The State filed its responses to the motions on
December 2, 1997. Mr. Evenson filed his replies in
December and next filed a request to proceed pro se on
January 15, 1998. The time excluded for Rule 8 purposes
were from November 3, 1997 through December 1, 1997,
from December 1, 1997 through January 30, 1998, and from
April 1, 19987 through May 11, 1998. Appellant Evenson
vehemently objected to the exclusion of time from April 1,
1998 through May 11, 1998. The trial court was required to
dismiss this case based upon the lack of speedy trial under
Rule 8.2, Arizona Rules of Criminal Procedure.
A transcript of the pretrial conference of April 1, 1998
was attached to the reply of Mr. Evenson's motion to dismiss.
See IA- 47. The transcript reveals that the state had argued
that the exclusion of time from April 1, 1998 through May 11,
1998 was proper and that Appellant was being brought to trial
25 days less than the 150 days required urider Rule 8.2(a).
That 40 day exclusion was improper because Appellant was
ready for trial and objected to the exclusion of time. The
courts grant of the excluded time was fatal because the trial
judge failed to set forth reasons for excluding time.
During the pretrial conference of April 1, 1998, Mr.
Evenson, appearing pro per, told the court that he was ready
to proceed to trial. (Attachment, p. 2). He moved to dismiss
his prosecution because of the unreasonable delays that had
been incurred up to that date. Rule 8.5(b) requires that the
court provide "specific reasons" for the continuance of record.
The trial judge only stated that "extraordinary circumstances"
existed for justifying the delay. Shultz v. Peterson, 111 Ariz.
421, 422, 531 P. 2d 1128, 1129 (1975) requires that a judge
A-94
must specifically enumerate facts explaining why
circumstances are extraordinary, justifying such a delay.
If one uses the time period urged by the state (150
days), the improper exclusion was indeed fatal. The trial date
of May 11, 1998 was 248 days from the time of service of the
summons on September 8, 1997. The valid exclusions are
from November 3, 1997 through December 1, 1997, (28 days)
and from December 1, 1997 through January 30, 1998 (60
days), totalling 88 excluded days. With a trial date of May
11, 1998, Mr. Evenson would have been brought to trial in
157 days, which is 7 days more than the time allowed by Rule
8.2 (a).
In the superior court, the state argued that Mr.
Evenson's claim should be deemed untimely and waived
because he did not file his motion to dismiss at least 20 days
before trial (Index, Item 44, page 3). The case cited by the
state, State v. Lee, 25 Ariz. App. 220, 225, 542 P. 2d 413, 418
(1975) did not save their claim. In Lee, it was held that a
defendant must move to dismiss no later than 20 days prior to
trial when the issue is ripe for determination or it would be
deemed waived.
Appellant’s motion was timely filed under the
circumstances because Appellant first filed the motion 20
days before trial and then later refiled the motion pursuant to
the Court's order. During the April 1, 1998 pretrial
conference, the Court iold Mr. Evenson it would consider his
speedy trial claim if he filed a written motion. (Attachment
to I[A-47, p. 4, lines 13-22). Mr. Evenson responded that he
would hire an attorney. The motion was filed on April 21,
1998, pursuant to the court's deadline. The court
subsequently ordered that Mr. Evenson have his new counsel
file a notice of appearance and then refile the motion. The
A-95
identical motion was refiled on May 6, 1998.
On May 20, 1998, the date set for the firm trial date,
the motion to dismiss based upon the speedy trial violations
was denied. It was clear that the Appellant’s statutory right to
a speedy trial was denied and the action should have been
dismissed.
There were two other instances where the Appellant
was subjected to unconscionable delays. Appellant's prior
counsel had moved to dismiss 14 of the 15 counts of the
indictment. That motion was granted. The state filed a notice
of appeal. State v. Evenson, | CA-CR98-0819. The
Appellant, realizing that his case would be tied up in court for
a considerable time period, terminated the services of his
prior counsel and requested that the court vacate the dismissal
of the 14 counts and reinstate the dismissed counts. The
decision acknowledges that Appellee "failed to submit an
answering brief on appeal.." (page 5 of memorandum
decision). On October 26, 1998, Appellant, acting pro per,
filed a motion to vacate the findings to sever counts 2 through
15. IA-99. No action was taken on Appellant's request.
Appellant's right to a speedy trial sat in limbo until August of
1999, when the Court of Appeals mandate came down
reinstating the counts. Since the Appellant was requesting
reinstatement of the very counts which served as the basis of
the appeal, the state, by nonetheless going forward, denied
Appellant his right to a speedy trial.
Indeed, Barker v. Wingo, 407 U.S. 514, 92 S. Ct 2182
(1972) provides a 4-part test for determining whether a
defendant has been denied his right to a speedy trial. The test
directs courts to consider (1) the length of delay; (2) the
Reason for the delay; (3) Assertion of his right to a speedy
trial: (4) Prejudice to the defendant. The delay on the appeal
o—
A-96
alone was over ten (10) months. Since Appellant was
offering the state everything it had lost, there was no
conceivable reason why the state should not have withdrawn
its appeal. Defendant had previously made it clear that he
desired a speedy trial. In fact, when the motion to dismiss
was granted, Appellant had filed his requested voir dire
questions in anticipation of trial. [A-97. Appellant’s trial had
been set for October of 1998. The trial was vacated when the
state appealed. The delay made it that much more difficult
for a jury, sitting in 2000, to judge standards as they existed
in 1997. The denial violated both the 6th amendment right to
speedy trial and the statutory right under Arizona Rules of
Criminal Procedure. 7
VII. DID THE CLOSING ARGUMENTS OF THE
DEPUTY ~ = =PROSECUTOR CREATE
FUNDAMENTAL ERROR AND CONSTITUTE
PROSECUTORIAL MISCONDUCT,
MANDATING A REVERSAL OF THIS
CONVICTION.
The deputy prosecutor, in his reply arguments to the
jury, made inflammatory and improper comments, denying
Appellant his right to a fair trial. His argument went beyond
the issue of guilt or innocence, but made it one in which the
future of criminal prosecutions would be judged. The
argument was grotesquely improper, affecting fundamental
rights of the defendant, and denying Appellant a fair trial.
Mr. Campagnolo: The verdict you send,
and the State knows
how difficult it is in
this case, but the State
is asking for a verdict.
There are three
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Be
ae
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A-97
verdicts that you could
come back with.
The first one would be a message to
the state. You could find the
defendant not guilty, and that would
tell the State, I mean, Mr. Romley, or
whoever the county attorney is, could
still say, I'm against pornography, but
that doesn't
matter, you _can_ still find him_not
guilty, and what that would tell the
state is don't prosecute it."
TR-5/16/00 @ 60:11-21.
This argument goes far beyond the bounds of
propriety. The jury is told that if they acquit, Richard Romley
would be receiving instructions from this jury not to
prosecute "pornography" cases in the future. The argument
got even worse.
But there are consequences to a verdict,
whether it goes either way. The consequences
are, first of all, probably (Romley) will not
enforce this statute, the statute will probably
have no teeth.
A-98
But the other consequence is that it will senda
message, not just to Mr. Evenson, but to the
Swingers, the Pleasure Guide, you've got free
rein, do what you want.
And the problem with that is--there was
testimony that there are other publications that
sell in stores or don't sell through vending
machines that may have worse stuff.
A verdict of not guilty will send a message
that those people who, instead of having some
protection with adult control in the store, may
start putting vending machines out for their
stuff too, and you're going to see lots and lots
more of these.
TR-5/16/00 @ 60:22 - 61:13.
The jury was told, without any evidence, that a "not
guilty" verdict would result in more risque publications going
out on the street. The prosecutor suggested that their verdict
would cause harmful material or even hard core pornography,
previously shielded by adult proprietors inside stores and
behind counters, to end up in vending machines on the streets,
accessible to minors.
Even though Appellant’s trial counsel failed to object
and move for a mistrial, this argument constituted "plain
error." United States v. Olano, 507 U.S. 725, 736 (1993).
This argument "‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings." United States v.
Young, 470 U.S. 1, 15 (1985) (quoting United States v.
Atkinson, (1936)). See generally Arizona v. Fulminante, 499
U.S. 279, 310 (1991) (constitutional error may not be found
A-99
harmless if error deprives defendant of the "“basic protections
(without which] a criminal trial cannot reliably serve its
function as a vehicle for determination of guilt or innocence,
and no criminal punishment may be regarded as
fundamentally fair."
The issue that should have been directed to this jury
was whether or not Appellant violated A.R.S. § 13-351 3 and
was guilty of acrime. The issue was not whether the County
Attorney would prosecute future cases, and whether this jury
had any role in advising the County Attorney on the propriety
of this statute. The issue was whether this newspaper was
harmful to minors; not whether a not guilty verdict would
cause pornography to be moved from behind counters and out
on the streets of Maricopa County. The prosecutor's grossly
improper parting shot, directed at Appellant and a group of
so-called faceless, nameless merchandisers of pornography,
reads:
But the state asks for a verdict of guilty,
because a verdict of guilty well send a
message to this publisher, and all publishers
like him.
TR-5/16/00 @ 63: 18-20
VIII. DID THE TRIAL COURT ERROR IN ITS
INSTRUCTIONS TO THE JURY, DENYING
APPELLANT HIS RIGHT TO A FAIR TRIAL.
Prior to submitted the case to a jury, the state and
defense settled jury instructions. The State requested Jury
Instruction 3A. That proposed state instruction contained the
following language:
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Merely because something is available in the
community does not mean that it is acceptable
in the community.
Appellant's attorney, Thomas Thinnes, submitted his own
"Contemporary State Standards" instruction which did not
contain this language. Mr. Thinnes vigorously objected to the
state's instruction. He noted that the state's instruction "is not
taken from any other instruction." Mr. Thinnes objection was
overruled. TR-5/16/00 @ 13:18-14:16. The instruction was
given to the jury. TR-5/16/00 @ 28:22-24. The instruction
was an incorrect statement of the law.
Appellant's counsel attempted to submit an
"Agreement of Views" instruction. The proposed instruction,
taken from Commonwealth v. Mascolo, et. al., 7 Mass. App.
Ct. 275, 396 N.E. 2d 1311 (1979) provided:
If you are unable to agree on what the views
of the average person are on the subject of
prurient or patent offensiveness, then I instruct
you return a verdict of not guilty on all counts.
Mr. Thinnes noted that Judge Dougherty had given a similar
-Instruction in an obscenity case. Mr. Thinnes noted that the
instruction had been given in Texas and one other
jurisdiction.
Judge Galati ruled that the instruction was "...contrary
to what I think is sensible. I don't know of any other area
where you--where a failure of a jury to agree on an element of
the offense, they're told has to result in an acquittal." TR-
5/16/00 @ 15:14-19. Over the Appellant's objection, the
instruction was refused. The refusal to give the instruction
was reversible error.
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A-101
Appellant's counsel submitted a "Harmful to Minor's"
instruction that accurately set forth Arizona law. The judge
erroneously used its own preferred instruction rejecting the
instruction submitted by Appellant. TR-5/16/00 @ 16:3-9.
That action denied Appellant his right to a fair trial. The
instruction used by the court did not accurately set forth the
facts necessary in defining "harmful to minors." (The
unreasonable definition of the class, including all minors from
birth to 18, was a classic example of the erroneous application
of this jury instruction.) See TR-5/16/00 @ 27:11-28:4.
Another fundamental error related to 12A of the
States first amendment (TR-5/116/00 @ 18:14-18). The state
had successfully told the jury that "The law is that if it's
harmful for minors, it's not protected by the first amendment."
As the Playboy decision makes clear, obscene material is not
protected but indecent material does have substantial first
amendment protections. Even though "signal bleed"
productions of adult sexual activity was indecent to minors
watching such programming, Playboy still had protected
rights. The prosecution and judge misled the jury in
suggesting that this concept was a correct principal of law.
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CONCLUSION
For the reasons set forth in this opening brief,
Appellant respectfully urges this court to reverse the verdict
of the jury and judgment of the trial court and dismiss the
charges against Appellant.
RESPECTFULLY SUBMITTED this ___ day of
June, 2003.
JONES, SKELTON & HOCHULI, P.L.C.
A. Melvin McDonald
2901 North Central Avenue, Suite 800
Phoenix, Arizona 85012
Attorneys for Appellant
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A-103
CERTIFICATE OF COMPLIANCE
Pursuant to Arizona Rules of Criminal Procedure 31, I certify
that the attached brief
X
Uses proportionately spaced type of 14 points or
more, is double-spaced using a roman font, and
contains words; or
Uses monospaced type of no more than 10.5
characters per inch and
does not exceed 40 pages (opening and answering
briefs) or 20 pages (reply briefs); or
contains words.
A-104
CERTIFICATE OF MAILING
A. MELVIN McDONALD, attorney for the
Defendant-Appellant in the above-captioned
action, certifies that two copies of the foregoing
Opening Brief were mailed this ____ day of
June, 2003, «9:
Janet Napolitano, Attorney General
1275 West Washington
Phoenix, Arizona 85007
Furthermore, an original and six copies of the
Opening Brief were delivered to:
ARIZONA COURT OF APPEALS
Division One
1501 W. Washington Street
Phoenix, Arizona 85007
A. Melvin McDonald
A-105
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, 1 CA-CR 00-0621
Appellee, Maricopa County
VS. Superior Court
No. CR-97-09901
JEROME EVENSON,
Appellant.
APPELLEE'S ANSWERING BRIEF
JANET NAPOLITANO =
Attorney General
(Firm State Bar No. 14000)
RANDALL M. HOWE
Chief Counsel
Criminal Appeals Section
1275 West Washington
Phoenix, Arizona 85007-2997
Telephone: (602) 542-4686
(State Bar Number 012196)
Attorneys for APPELLEE
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QUESTIONS PRESENTED FOR REVIEW
1. Does A.R.S. § 13-3513, which prohibits
displaying, offering, or selling material harmful to minors
in coin-operated vending machines, violate Appellant’s
rights under the First Amendment to the United States
Constitution by not requiring proof that the materials
actually harm minors, when the United States Constitution
has no such requirement?
2. Does A.R.S. § 13-3513 violate the Equal
Protection Clause of the Fourteenth Amendment to the
United States Constitution when the statute is rationally
related to its legitimate governmental purposes?
3. Did the trial court violate Appellant’s nghts
under the Eighth Amendment to the United States
Constitution by imposing a fine of $166,400 on Appellant
for his 13 convictions for selling material harmful to
minors in vending machines, when the fine was within
statutory limits and was reasonable punishment for his
crimes?
4. Should this Court consider Appellant’s claim
that the State engaged in outrageous conduct in seizing the
vending machines, when (A) Appellant waived this claim
by never raising it at trial, and (B) the “outrageous
government conduct” defense is inapplicable to Appellant’s
case?
S. Is A.R.S. § 13-3513 unconstitutionally
overbroad for failing to distinguish between older and
young
This text is long and has been trimmed here. Open the source document for the complete record.
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