THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State of South Carolina, Respondent,

v.

Eric R. Brouwer, Appellant.

Appeal From Cherokee County
R. Markley Dennis, Jr., Circuit Court Judge

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED

Rodman C. Tullis, of Spartanburg, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Robert E. Bogan, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; Solicitor Holman C. Gossett, of Spartanburg, for respondent.

SHULER, J.: A jury convicted Eric Brouwer of disseminating obscene material and the trial court sentenced him to four years imprisonment, suspended on service of six months, and three years probation. Brouwer appeals, arguing the court erred in failing to grant a directed verdict, in refusing to admit comparable materials into evidence, and in sentencing him more harshly than a co-defendant who pled guilty. We affirm in part, reverse in part, and remand.

FACTS/PROCEDURAL HISTORY

In early February 1999, the Cherokee County Metro Narcotics Unit began an undercover investigation of Bedtyme Stories, an adult business, after receiving complaints from local citizens. Officer David Parker visited the store on several occasions, posing as a customer and inspecting videos potentially in violation of the state's obscenity laws. On February 18 Parker rented a videotape entitled AGB2 (ANAL GANG BANGERS 2) from Wendy Kaplan, a sales clerk. Parker and fellow Officer Christy White returned and purchased a copy of the movie on February 22 from another clerk, Eric Brouwer.

On the day of sale, Parker informed Brouwer he wanted to buy AGB2 and Brouwer accessed Parker's account on the store computer. When Brouwer asked Parker if he was buying the movie because he liked it, Parker replied he was starting a "little library." Brouwer explained he thought Parker might have been under the mistaken impression he was required to buy the movie because he had rented it. Brouwer then scanned the tape, placed it in a bag, and told Parker the price. Parker paid and signed a receipt certifying he was at least twenty-one years old, and Brouwer handed him the bag.

A Cherokee County grand jury indicted both Brouwer and Kaplan for disseminating obscene material. Scheduled for a joint trial, Kaplan ultimately pled guilty and the trial court sentenced her to two years plus a $5,000 fine, provided that upon payment of a fine of $750 plus costs the balance of the sentence would be suspended. The court also placed Kaplan on probation for two years.

Brouwer proceeded to trial and the jury returned a verdict of guilty. The trial court sentenced him to four years imprisonment, balance suspended upon service of six months, and three years probation. In addition, the court imposed special conditions requiring Brouwer to "participate in such counseling as probation deems appropriate, which should include something about sensitivity counseling" and human relationships. This appeal followed.

LAW/ANALYSIS

I. Directed Verdict

Brouwer first argues the trial court erred in refusing his motion for a directed verdict because the State failed to prove he "knowingly" disseminated obscene material. We disagree.

In considering a directed verdict motion, the trial court is concerned with the existence or non-existence of evidence, not its weight. State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63 (1998). On appeal of a criminal case, the reviewing court considers the evidence in the light most favorable to the State. State v. Fennell, 340 S.C. 266, 531 S.E.2d 512 (2000). If any direct or substantial circumstantial evidence exists which reasonably tends to prove the defendant's guilt, or from which his guilt may be fairly and logically deduced, this Court must find the trial court properly submitted the case to the jury. State v. Pinckney, 339 S.C. 346, 529 S.E.2d 526 (2000).

The indictment charged Brouwer pursuant to S.C. Code Ann. § 16-15-305(A) (Supp. 2000), which prohibits a person from "knowingly" disseminating obscene material. ⁽¹⁾ The statute defines "knowingly" as "having general knowledge of the content of the subject material or performance, or failing [to have such knowledge] after reasonable opportunity to exercise reasonable inspection which would have disclosed the character of the material or performance." § 16-15-305(C)(5).

The record reflects Bedtyme Stories was located in a building with a "yellow awning" identifying the business as an "adult store." It also reveals Brouwer asked Parker to show an I.D. before entering the establishment, and made a copy of his driver's license because he appeared to be under the age of thirty. In addition, when Parker bought AGB2, Brouwer required him to sign a receipt attesting that he was at least twenty-one years old. This evidence suggests Brouwer possessed at least some general knowledge of the adult nature of the store's merchandise.

More important, during a transaction lasting several minutes, Brouwer handled the movie for a minimum of fifteen to twenty seconds, scanning it with an electronic device and placing it in a bag. The tape, in its original packaging with the full title appearing on the front and back, prominently displays "AGB2" in large print (with the words "ANAL GANG BANGERS 2" in smaller print underneath) on the top, bottom, and sides of the box. The back of the box also features three sexually explicit photographs, two of which depict a female engaged in simultaneous sexual activity with two men, along with a written summary of the movie's contents.

In our view, Brouwer's personal exposure to the video, even for a relatively short period of time, coupled with the obviously adult nature of the Bedtyme Stories business, is sufficient evidence tending to prove he knew or should have known the general character of the tape's content. See Commonwealth v. Dane Entm't Servs., Inc., 505 N.E.2d 892, 893 (Mass. App. Ct. 1987) (holding evidence, including fact that film was billed as "X-Rated" on directory in theater lobby opposite ticket counter along with other adult movies, that a sign nearby stated no minors were allowed, and that the word "ADULT" appeared twice in boldface type on ticket face, sufficiently warranted conclusion by a rational trier of fact that the defendant "had a general awareness of the [obscene] character of the film"); compare State v. Bean, 327 S.C. 589, 490 S.E.2d 16 (1997) (finding the State failed to prove nightclub owners knowingly permitted obscene dancing on their premises where no evidence indicated owners, who were not present when police videotaped the allegedly lewd conduct, knew or had reason to know nude dancers were bending over and exposing themselves to customers); State v. Pendergrass, 13 S.W.3d 389, 394-95 (Tenn. Crim. App. 1999) (stating evidence video store proprietor stocked items of a sexual nature and advertised such on his building's signs was insufficient to establish he "knowingly distributed obscenity," where the prosecution failed to establish the degree of his involvement in the business and presented no evidence he was on the premises "or engaged in activities such as assisting customers with purchases, stocking shelves, receiving merchandise, or ordering merchandise") (emphasis added). The trial court, therefore, did not err in sending the case to the jury.

II. Exclusion of Comparable Materials

Brouwer further contends the trial court erred in refusing to admit material comparable to AGB2 as evidence of the requisite community standard. We find no error.

The determination of whether certain materials are "obscene" lies within the province of the jury. For purposes of our dissemination statute, material is deemed obscene if:

(1) to the average person applying contemporary community standards, the material depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (C) of this section;

(2) the average person applying contemporary community standards relating to the depiction or description of sexual conduct would find that the material taken as a whole appeals to the prurient interest in sex;

(3) to a reasonable person, the material taken as a whole lacks serious literary, artistic, political, or scientific value; and

(4) the material as used is not otherwise protected or privileged under the Constitutions of the United States or of this State.

§ 16-15-305(B). The "community standards" to be employed by the jury in "determining prurient appeal and patent offensiveness are the standards of the area from which the jury is drawn." Id. at (E).

Before trial, Brouwer requested a preliminary ruling on the admissibility of materials comparable to AGB2 to show the video fell within the ambit of Cherokee County's contemporary community standards. The trial court, finding the mere availability of similar materials in the community did not demonstrate community acceptance, refused to admit the exhibits but permitted Brouwer to proffer the evidence for appeal. ⁽²⁾

The admissibility of allegedly comparable materials in an obscenity trial is an issue of first impression in this state. Although decisions from other jurisdictions are not entirely uniform, the vast majority of state and federal courts have concluded such evidence is admissible subject to the predicate test for admissibility found in Womack v. United States, 294 F.2d 204 (D.C. Cir. 1961), cert. denied, 365 U.S. 859 (1961). We agree evidence of comparison material generally is admissible to assist a jury in determining the prevailing community standards it must employ in evaluating allegedly obscene material. See Hamling v. United States, 418 U.S. 87, 125 (1974) ("[J]ust as a defendant in any other prosecution, [a defendant in an obscenity case] is entitled to an opportunity to adduce relevant, competent evidence bearing on the issues to be tried."); Smith v. California, 361 U.S. 147, 165 (1959) (Frankfurter, J., concurring) ("[I]n determining what constitutes obscenity, it surely must be deemed rational, and therefore relevant to the issue of obscenity, to allow light to be shed on what those 'contemporary community standards' are.") (internal citation omitted); Flynt v. State, 264 S.E.2d 669, 674 (Ga. Ct. App. 1980) ("[W]e are persuaded that evidence which satisfies the Womack test is relevant, probative evidence which should be admitted in an obscenity trial for the consideration of the trier of fact."). As our sister court stated in Flynt v. State:

The rationale behind the admission of "comparative" evidence is to allow the defendant in an obscenity case the opportunity to attempt to persuade the trier of fact that the challenged material does not exceed contemporary community standards, as represented by the comparable material and against which the challenged material is judged. The comparative material is tangible evidence of contemporary community standards.

Flynt, 264 S.E.2d at 674.

Such evidence, however, should not be admitted in the absence of a proper foundation ensuring its probative nature. See United States v. Pinkus, 579 F.2d 1174, 1175 (9th Cir. 1978) ("[T]here are foundational requirements for admissibility of such evidence that have evolved as logical indicia of its materiality and relevance."); Womack v. United States, 509 F.2d 368, 377-78 (D.C. Cir. 1972) ("Womack merely requires an adequate foundation to be laid for the introduction of comparison evidence. . . . The burden is on the defendant and in the absence of such a showing, the evidence must be excluded as lacking sufficient probative value.") (footnotes omitted); State v. Wages, 483 N.W.2d 325, 327 (Iowa 1992) ("[Womack] foundational requirements . . . are merely logical prerequisites under traditional concepts of materiality and relevancy."); State v.