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Exposing Minors to Harmful Materials, § 948.11(2) — Sufficiency of Evidence — Failure to Expose Those Alleged Materials to Jury

State v. Tyrone Booker, 2006 WI 79, reversing 2005 WI App 182
For Booker: Jeffrey W. Jensen

Issue: Whether conviction under § 948.11, exposing child to harmful materials, can be sustained where the jury heard the children’s and a detective’s descriptions of the videotape but did not themselves view it.


¶25      When we view the evidence in this case most favorably to the State, we conclude that a reasonable “trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt,” based on the testimony presented. First, the jury could conclude that the video excerpts, as described, predominantly appeal to the prurient interests of children. “Prurient” is defined as “arousing inordinate or unusual sexual desire.” Black’s Law Dictionary 1263 (8th ed. 2004). The portions of the video that Booker showed to the girls were consistently described as scene upon scene of sexual acts, with all scenes ending with the male masturbating to the point of ejaculation on the female.¶26      Second, the jury could conclude that the video is patently offensive to prevailing standards in the adult community with regard to what is suitable for children. Motion pictures that depict explicit sexual material harmful to minors may not be shown at outdoor theaters if the screen is visible from a public street, sidewalk, thoroughfare or other public place or from private property where it can be observed by minors. Wis. Stat. § 134.46(2). Videos with the type of content described by the witnesses are not available for rental to minor children in Wisconsin. Videos showing explicit sexual acts are commonly rated and restricted so that minor children will not be exposed to them.[8] A jury could make a reasonable determination based on the testimony presented at trial that the video Booker showed the girls is considered by Wisconsin adults as unsuitable for children.

¶27      Third, the jury could conclude that the video excerpts lacked serious literary, artistic, political, scientific or educational value for 12- to 14-year-olds because nothing was shown except episodes with men and women engaging in sexual acts. There was no evidence that the video had merit for children of these ages, for any reason. And, for the same reasons that the other parts of the “harmful material” element can be met by the evidence presented, a reasonable trier of fact could conclude from the testimony that the video was absolutely void of serious literary, artistic, political, scientific or educational value for children.


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