Utah App.: Lewdness and distribution of pornography are separate offenses with different elements
Utah v. Coble, No. 20080866, 2010 WL 1617482 (Utah App. April 22, 2010)
Lewdness and distribution of pornography are separate offenses with different elements.
Frank C. Coble was “charged with distributing pornographic material under Utah Code section 76-10-1204 when he transmitted a live web camera image of himself masturbating to another individual in a private chat room on the internet.” The district court found that while Coble’s “alleged act . . . may come within the definition of distributing pornographic material for purposes of [the statute],” it was also the case that his act “comes within the definition of lewdness for purposes of Utah Code 76-9-702.” The court therefore ruled that “the felony pornography distribution charge was barred by the doctrine enunciated in State v. Shondel, 22 Utah 2d 343, 453 P.2d 146 (1969), limiting the prosecution of a defendant to the less serious of two crimes with identical elements (the Shondel doctrine).”
On appeal, a panel of the Court of Appeals of Utah reversed the district court, holding that the two crimes (distribution of pornography and lewdness) are not identical. Judge Thorne (joined by McHugh, Davis dissenting) delivered the opinion of the court:
Examining the statutory elements at issue in this case, it is clear that, at the very least, the pornography distribution statute differs from the lewdness statute by requiring the State to prove that the material or performance underlying the charge is pornographic, as opposed to merely lewd. . . . In this case, a lewdness conviction would require only proof that Coble masturbated under circumstances that violated the lewdness statute. While those same circumstances might also establish certain elements of the pornography distribution statute, the State would additionally have to prove that the webcam feed of Coble masturbating was pornographic, i.e., that it appealed to a prurient interest in sex under community standards, was patently offensive, and lacked other value. Accordingly, because the legislature has chosen to define the two offenses differently, the Shondel doctrine is not applicable here and the district court’s order reducing Coble’s charge must be reversed.
Coble also argued in his appellate brief that “his private, noncommercial webcam feed cannot constitute the distribution of pornography,” but the Supreme Court declined to review that issue “because Coble failed to bring them either by way of a cross-appeal or by separate petition for interlocutory appeal.”
This procedural question inspired Judge Davis’ dissent in which he argued that the district court erred, in the first place, in finding that Coble’s act might “come within the definition of the distribution pornography.” According to Davis, a “web camera’s capture of a person masturbating” cannot be “material” within the definition of the relevant statute because, according to the statute’s plain language, “material includes only those items that are tangible, concrete, and can occupy a physical space.” Under that definition of “material,” a live web camera image a live web camera image “is not tangible, nor does it occupy a concrete physical space; in fact, there is no evidence presented by the parties that a live web camera image transferred from one computer to another is stored on the computer’s hard drive or is otherwise retrievable.”