Mo. Store Owner’s Obscenity Conviction Overturned

Q Boyer
ANDERSON, Mo. — A state court of appeals has overturned the conviction of an adult store owner charged with three misdemeanor counts of promoting obscenity after clerks at the store sold three adult videos to undercover law enforcement operatives in separate instances that took place between April 2004 and January 2005.

The Missouri Court of Appeals overturned the conviction of Midnite Video South owner Robert Crump Jr. and remanded the case for a new trial. A jury in McDonald County convicted Crump in June 2006, but a procedural error on the part of the trial court led the appellate court to overturn the conviction.

In its opinion, the appellate court concurred with Crump’s argument that Judge John LePage erred in overruling a defense motion to dismiss the charges based on the fact that an affidavit of probable cause failed to describe the content of the allegedly obscene videos.

As noted by the appellate court, the prosecution concedes that “the trial court erred in overruling Appellant’s motion to dismiss the information” and actually joined Crump in requesting a reversal of the conviction and remand for a new trial.

The prosecution also asserted that Crump’s point concerning the affidavit was so convincing, it rendered the other arguments in the appeal moot. According to the appellate court’s opinion, given the fact that the procedural issue was sufficient to overturn the conviction and remand the case for a new trial, neither side felt it necessary for the court to review the videos themselves.

Bill Fleischaker, a Joplin, Mo.-based attorney who represents Crump in the case, told XBIZ today that in cases where there are procedural grounds for overturning a conviction, the court will typically not address the more nuanced constitutional arguments raised in the same appeal.

“Sometimes the court seizes on the easiest ones,” Fleischaker said. “It’s pretty typical in any case.”

Fleischaker said he believed that the decision to prosecute his client was “politically motivated.” A former prosecutor himself, Fleischaker noted that when obscenity charges are filed against a defendant, “in the vast majority of situations, the prosecutor either rightly or wrongly believes that this is what the voters want them to do.”

Fleischaker conceded that adult businesses sometimes do become fronts for illegal activity, like prostitution, but said this was not the case with Midnite Video South.

“Nobody is forcing anybody to a video store, and they aren’t keeping children hostage in there,” Fleischaker said. “What was taking place here was constitutionally protected.”

Fleischaker also questioned the nature of the investigation, and why authorities would place a priority on alleged obscene materials, given some of the other problems being faced in Missouri.

“We have a huge meth problem here, and a lot of other more serious things going on,” Fleischaker said, noting that the undercover agents who purchased the allegedly obscene videos were members of a local drug task force.

“In my opinion, it’s a poor use of local resources,” Fleischaker said.