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R.K.D. v. STATE9/26/1997
The appellant, R. K. D., was convicted of knowingly possessing "obscene matter containing a visual reproduction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation . . . or other such conduct," a violation of § 13A- 12-192(b), Code of Alabama 1975. The appellant was sentenced, pursuant to the Habitual Felony Offender Act, to a term of 15 years imprisonment .
I.
The appellant argues that the State failed to prove the elements of § 13A-12-192(b), Code of Alabama 1975, i.e., that he was in possession of obscene matter containing visual reproductions of persons under the age of 17 years engaged in certain proscribed obscene acts. The State first argues that this issue was not preserved for appellate review because the appellant failed to make a specific argument in his motion for judgment of acquittal that none of the exhibits offered into evidence by the State was a visual reproduction of a "live act." See, § 13A-12-190(12), Code of Alabama 1975. This court notes that neither § 13A-12-192(b), Code of Alabama 1975, nor § 13A-12-190(12), Code of Alabama 1975, defines the term "visual reproduction." The State further argues that, even if this issue is preserved for appellate review, the trial court properly denied the appellant's motion for a judgment of acquittal.
During the argument concerning the appellant's motion for judgment of acquittal, the following occurred:
"MR. RADNEY [DEFENSE COUNSEL]: The defendant makes a motion for a Judgment of Acquittal . . . The State's only witness said that there was no visual reproduction of a child under the age of seventeen in any of the exhibits. The statute says: Any person know (sic) to be possessing any obscene matter containing a visual reproduction. Everything after that involves a person doing so-and-so. The statute says, and the indictment follows it word for word, comma for comma, semicolon for semi-colon. Any person who knowingly possesses any obscene matter containing a visual reproduction. I stop right there. Because everything else follows that. Lieutenant Dindinger said there was not one exhibit of everyone included, the Court can remember it, the court reporter can read it back, no visual reproduction of anybody. We have got pictures of Arnold Palmer. We have got pictures — most of those are published magazines that are mailed through the mail. Some of them show — assuming they all show a child under seventeen — assuming that. Cases hold you don't have to bring somebody in to prove how old that person is and so forth. But, none of them show that child engaged in any act that they follow the statute with, and I don't pretend that the Court doesn't know what all those words mean, but I'll give you Webster's definition of sadomasochism —
". . . .
"THE COURT: You don't quarrel with the idea that a visual reproduction could include drawings, do you?
"[DEFENSE COUNSEL]: It says visual reproduction. I do take issue with that as being a drawing.
"THE COURT: The Court disagrees.
"[DEFENSE COUNSEL]: I do take issue with that. Although there is no drawing showing an act of sexual intercourse. There is a drawing of a person, of a genital organ. I say that's not a visual reproduction.
"THE COURT: Well, I think the term visual reproduction includes drawings, cartoons, anything that produces something that is recognizable as such. It doesn't — I don't think it is limited to pure and simple photographs.
"[DEFENSE COUNSEL]: . . . If the Court is saying, I, as a citizen of the State of Alabama, cannot take me a pencil and a piece of paper and draw a lewd
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