STATE OF IOWA, Plaintiff - Appellee, vs. JORGE CANAL, JR., Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-324 / 07-1051
Filed May 14, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JORGE CANAL, JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Virginia Cobb,
Judge.
Defendant appeals his conviction for disseminating obscene material to a
minor. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant
Attorney General, Wayne Reisetter, County Attorney, and Sarah Pettinger,
Assistant County Attorney, for appellee.
Considered by Miller, P.J., and Vaitheswaran and Eisenhauer, JJ.
2
EISENHAUER, J.
After a jury trial, Jorge Canal Jr. was found guilty of dissemination and
exhibition of obscene material to a minor in violation of Iowa Code section 728.2
(2005).1 On appeal he argues the photograph sent to the minor was not obscene
and argues his counsel was ineffective. We affirm.
Canal sent three pictures to a fourteen-year-old girl‟s e-mail from his cell
phone.
One picture included a close-up photograph of his erect penis.
Additionally, one e-mail included the message header, “I Love You.”
Canal
argues the evidence was insufficient to support his conviction because the
photograph was nudity depicting a normal biological occurrence and is not
obscene.2
We review challenges to the sufficiency of the evidence supporting a guilty
verdict for correction of errors at law. State v. Bash, 670 N.W.2d 135, 137 (Iowa
2003).
We will uphold a verdict if substantial record evidence supports it.
Evidence is substantial if it would convince a rational fact finder that the
defendant is guilty beyond a reasonable doubt. Id. We review the evidence in
the light most favorable to the State. Id.
Iowa regulates obscene materials “on the basis they are unsuitable for
minors.” State v. Robinson, 618 N.W.2d 306, 316 (Iowa 2000). Because the
State has an interest in preventing the distribution of objectionable material to
children, the concept of obscenity varies according to whether the material is
1
Canal was originally granted a deferred judgment. The court revoked the deferred
judgment and entered sentence after Canal violated the terms of his probation.
2
Canal‟s reliance on Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S. Ct. 2268, 45
L. Ed. 2d 125 (1975) is misplaced. The Erznoznik court was analyzing a city ordinance
and the city admitted the ordinance went far beyond the permissible restraints on
obscenity. Id. at 208, 95 S. Ct. at 2272, 45 L. Ed. 2d at 130.
3
directed towards adults or towards children. Ginsberg v. New York, 390 U.S.
629, 636, 88 S. Ct. 1274, 1278-79, 20 L. Ed. 2d 195, 202 (1968). Obscene
material is defined in Iowa Code section 728.1(5):
“Obscene material” is any material depicting . . . the genitals . . .
which the average person, taking the material as a whole and
applying contemporary community standards with respect to what
is suitable material for minors, would find appeals to the prurient
interest and is patently offensive; and the material, taken as a
whole, lacks serious literary, scientific, political or artistic value.
This statutory language was incorporated into jury instruction number
eighteen, which also explained: “The definition of obscenity includes the term
„prurient interest.‟ Prurient interest is defined as shameful or morbid interest in
nudity, sex, or excretion.”
There is no requirement the prosecution offer expert testimony concerning
the obscenity of the material “when the allegedly obscene material itself is placed
in evidence.” State v. Groetken, 479 N.W.2d 298, 301 (Iowa 1991). The jurors,
as the factfinders, determine the factual “issues of contemporary community
standards for appeal to the prurient interest and patent offensiveness.” Id. The
term “contemporary community standards” is the yardstick the jury uses to
“evaluate the material.”
Id. at 303.
Further, courts have determined “lewd
exhibitions of the genitals” can be patently offensive. Miller v. California, 413
U.S. 15, 25, 93 S. Ct. 2607, 2615, 37 L. Ed. 2d 419, 431 (1973).
When viewing the evidence in the light most favorable to the State, we
conclude there is substantial evidence in the record to support the jury‟s verdict.
While Canal‟s attorney argued the photograph only indicated a “natural interest in
sex” as opposed to a “shameful or morbid” interest, the jury was not persuaded.
The jury, using contemporary community standards, could conclude the picture
4
of Canal‟s erect penis, shot in a close-up view and accompanied by an “I Love
You” message, was not suitable material for a minor, was patently offensive, and
appealed to a shameful or morbid interest in nudity or sex. We therefore uphold
the jury‟s verdict.
Canal also argues his trial counsel was ineffective because the jury was
not properly instructed on the applicable law when his trial counsel failed to
request an instruction stating mere nudity did not constitute obscenity.
We
normally preserve ineffective-assistance-of-counsel claims for postconviction
relief proceedings, however, direct appeal is appropriate when the record is
adequate to determine as a matter of law the defendant will be unable to
establish one or both of the elements of his ineffective-assistance claims. State
v. Reynolds, 670 N.W.2d 405, 411 (Iowa 2003). Here the record is adequate to
resolve this issue on direct appeal.
In order to prevail, Canal must show (1) counsel failed to perform an
essential duty, and (2) prejudice resulted. See State v. Lane, 726 N.W.2d 371,
393 (Iowa 2007).
We conclude Canal has not proven his counsel failed to
perform an essential duty because the jury was properly instructed on the
applicable law.
The jury instruction did not allow mere nudity to be considered obscene as
Canal suggests. If that were the case, the instruction would have ended after its
statement “any material depicting the genitals.” Instead, in addition to “material
depicting the genitals,” the jury was instructed to use contemporary community
standards to evaluate the suitability of the photograph for a minor and to consider
three factors: (1) whether the photograph appeals to a shameful or morbid
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interest in nudity or sex; (2) whether the photograph is patently offensive; and (3)
whether the photograph has any literary/scientific/political/artistic value. The jury
was properly instructed on the fact finding needed to determine whether the
photograph was obscene. “It is well settled that a trial court need not instruct in a
particular way so long as the subject of the applicable law is correctly covered
when all the instructions are read together.” State v. Uthe, 542 N.W.2d 810, 815
(Iowa 1996). Because the jury instructions correctly covered the applicable law,
Canal‟s attorney had no duty to request an additional instruction. Canal has
failed to prove breach of an essential duty, therefore, his ineffective assistance of
counsel claim fails.
AFFIRMED.
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