Day v. State ( 1989 )

Deen, Presiding Judge.

Appellant was tried before a jury and found guilty of the offense of distributing an obscene videotape in violation of OCGA § 16-12-80. He appeals from the judgment of conviction and sentence entered on the jury’s verdict.

1. Appellant enumerates as error the trial court’s denial of his motion for a directed verdict of acquittal. He does not contend that the videotape in question is not obscene. Appellant urges only that the evidence presented at trial did not show that he had the requisite guilty knowledge of the obscene nature and contents of the videotape.

OCGA § 16-12-80 (a) provides in pertinent part that “[a] person commits the offense of distributing obscene materials when he . . . rents ... to any person any obscene material of any description, knowing the obscene nature thereof, . . . provided that the word ‘knowing,’ as used herein, shall be deemed to be either actual or constructive knowledge of the obscene contents of the subject matter; and a person has constructive knowledge of the obscene contents if he has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material. . . .”

Whether or not appellant has “knowledge of facts which would put a reasonable and prudent man on notice as to the suspect nature of the material” is a question generally for the jury. Underwood v. State, 144 Ga. App. 684, 687 (242 SE2d 339) (1978). The videotape in this case, viz., “The Revealing of Elsie,” was listed in the “mature” category of the Video Catalog listing index. Above and below the subject video were the listings of “Playgirls’ Sexual Secrets” and “Sensual Partners.” The former is described in part as “instruction in techniques to enhance the joy of love making” and the latter in part as “wild romp on an exotic island with a worldly playboy becomes a nightmare when unsuspecting women are whisked off to be sold as slaves.” “In the nature of things, fire is always attended with more or less danger, and is itself a warning to beware.” Allen v. Augusta Factory, 82 Ga. 76, 79 (8 SE 68) (1888).

Appellant was knowledgeable in ordering and stocking videotapes of all kinds. We must not second-guess the jury’s finding regarding the knowledge of facts sufficient to put a reasonable and prudent man on notice of the suspect nature of the videotapes, a fortiori, when that reasonable and prudent man happens to be so knowledgeable on the subject of videotapes. “[J]urors are entitled to use their own common sense as intelligent human beings on many questions,” in particular those concerning “perversion and degeneracy.” Feldschneider v. State, 127 Ga. App. 745, 746, 747 (195 SE2d 184) (1972). We cannot say in this case that the evidence was insufficient to support the verdict.

2. Alleged errors relating to the motion to suppress and the special and general demurrer are without merit. The rental of the tape was by a private individual, and the indictment met the requirements of notice and specificity. See N & N, Inc. v. Veline, 253 Ga. 51 (315 SE2d 908) (1984), Wood v. State, 144 Ga. App. 236 (240 SE2d 743) (1977), and Smith v. State, 130 Ga. App. 390 (203 SE2d 375) (1973).

3. Reference to a statute in the closing argument by the State did not violate the prohibitions of Conklin v. State, 254 Ga. 558 (331 SE2d 532) (1985), nor did the remarks of the trial judge made during closing argument add up to harmful error.

Judgment affirmed.

McMurray, P. J., Birdsong and Pope, JJ., concur. Beasley, J., concurs in judgment only. Parley, P. J., Banke, P. J., Sognier and Benham, JJ., dissent.