State v. Cooley ( 1989 )

PREWITT, Judge,

dissenting.

I respectfully dissent.

In my view the majority opinion is correct that no rational person would find that either magazine has any literary, artistic, political or scientific value. However, in denying a jury determination on this issue we are substituting our judgment for that of a jury.

Defendant was entitled to a jury trial with proper directions from the court and she did not get that. The change in the applicable standard also could change the evidence, counsel’s argument to the jury, or other trial strategy. It is impossible to say that a different result could not have occurred. As a practical matter we know that juries occasionally make decisions that we may not regard as “rational”.

As offensive as these magazines were, the defendant is entitled to have a jury make the decision if she is guilty of the offense charged. See State v. Triplett, 722 S.W.2d 633, 640-643 (Mo.App.1986) (Prewitt, J., dissenting).