PEOPLE v. TINSLEY (1992)

OPINION ON REHEARING

Dwaine Beverly Tinsley appeals his convictions for 5 counts of child molestation.  (Pen.Code, § 288, subd. (a).)  A primary issue for resolution is whether pornographic visual material repeatedly shown to a minor victim of alleged sex crimes by the perpetrator is relevant solely because it may have subjected the child to an atmosphere of sexual permissiveness.   We conclude that such evidence is irrelevant and highly prejudicial where the prosecution has failed to establish any evidentiary link between exhibition of the pornographic material and commission of the alleged offenses.   On this basis we reverse the convictions and order that defendant be afforded a new trial.

Background

Appellant was charged with 6 counts of child molestation (§ 288, subd. (a)), 5 counts of oral copulation with a minor (Pen.Code, § 288a, subds. (b)(1), (2)), and 5 counts of incest (Pen.Code, § 285), for a total of 16 counts.   The jury found him guilty of 5 counts of molestation, found him not guilty of 4 counts of oral copulation and 2 counts of incest, and was undecided on the remaining 5 counts.

At the time of the alleged offenses, appellant was a cartoonist for Hustler Magazine, a publication which he states specializes in sexual/social outrage.   Appellant's cartoons were drawn in his studio at his residence.   They concerned sexually explicit subjects, as well as political, ethical, racial, religious and other topics.   He concedes the cartoons were intended to offend the public.   A cartoon character appellant created was “Chester the Molester,” who he depicted as molesting young girls.   The trial court allowed the prosecution to introduce into evidence some 3200 cartoons, including sexual and non-sexual topics, which were contained in published anthologies or collections of Hustler cartoons.   Not all of the cartoons were drawn by appellant.

The alleged victim in this case is appellant's daughter, A.   A. was born in 1970 to appellant and B.   Until she was 13 years old, A. lived with her mother.   B. was physically abusive to A.   A. went to live with appellant after he obtained custody of her.   Appellant was married to “Mama S.” and they had a daughter, S.

A. testified to having a long-term sexual relationship with appellant.   According to her testimony, the alleged crimes started when she was 11 years old while visiting appellant.   He allegedly put his fingers into her vagina.   She stated that several other similar incidents occurred over the following several years.

A. testified that she and appellant began having sexual intercourse several months after she moved into his home.   These episodes were fairly routine.   Mama S. and daughter S. would be out of the house.   Appellant would ask A. if she wanted to lie down.   A. and appellant would go into the master bedroom and undress.   A. would orally copulate appellant until he achieved an erection.   They would then have vaginal intercourse.   Appellant would ejaculate outside A. unless she was menstruating.   Appellant would on occasion orally copulate A.

At trial, A. recalled about seven specific instances when she and appellant had sexual intercourse.   These episodes allegedly occurred during a four year period up to the time A. was a senior in high school.

A. testified that she knew what her father did for employment even before living with him.   She had access to appellant's study and to his cartoons without restriction.   She liked to be in her father's study with him, and used to watch him draw.   She was familiar with the anthologies of cartoons admitted into evidence and with the character Chester the Molester.   Appellant had on several occasions given her autographed copies of the anthologies to give to her friends at school.

Besides making his drawings available to A., A. testified that appellant also showed her his monthly work product of about 40 cartoons.   There was no discussion of the cartoons;  appellant would simply show them to her.   On occasion, appellant would show A. a specific cartoon.   A. testified that some of these reminded her of the sex she had with appellant.   One she remembered showed a woman lying on the bed with a man after sex and the caption read:  “ ‘Phew, that was the best 20 seconds of my life.’ ”   Another showed a man pleading with a woman for sex.

In addition, A. testified that appellant would sometimes show her a cartoon and ask her if it looked familiar.   A. testified that these drawings were usually about sex.

Once A. heard appellant say in a telephone conversation words to the effect that one had to experience things to write about them.   She testified that she once asked appellant if he got any ideas from her, and he said yes, stating he also got ideas from Mama S. and daughter S.   Appellant told A. that she was the inspiration for one cartoon showing a teenager hitchhiking with a sign which read:  “ ‘Alienated teenager.   Please give me a free ride to adulthood.’ ”

A. recognized one cartoon shown to her by the prosecutor which portrayed a girl talking on the telephone and a man was about to put his hand into her pants.   The caption read:  ‘ “Gee, I'd love to go to the drive-in, Tommy, but my dad has some, oh, extra household chores for me to do tonight.’ ”

A. also was familiar with several other cartoons shown to her by the prosecutor which featured Chester the Molester.   One showed Chester surrounded by three naked little girls.   The caption read:  “ ‘It's 11:00.   Do you know where your children are?’ ”   The other depicted Chester at a playground lying at the bottom of a slide with his tongue hanging out and a girl going down the slide with her legs open.   A third cartoon showed Chester sitting with his pants down and a puppet on his penis.   A young girl is looking at him, smiling.   The caption read:  “ ‘Come on, sugar, give widdo Rodney a kiss kiss.’ ”   A. further testified that she was familiar with a cartoon showing three little boys watching their father masturbate as he read a girlie magazine while their mother looked on.   The caption stated:  “ ‘Honestly, Newton, do you really think this is the time and place to show the boys how to masturbate?’ ”

A. never told anyone about the sexual relationship she had with appellant while she was living with him.   Before moving into appellant's home, she told a girlfriend about the initial incident with appellant when he put his fingers in her vagina.   However, when A. saw her friend did not believe her, she told the friend the incident never happened.

A. used marijuana while living with appellant.   In high school, she started using cocaine.   As her use increased, she became more rebellious at home.   Her relationship with appellant broke down.   Appellant and Mama S. sent A. to a therapist.   The therapist testified that while counseling A. she never learned of A.'s alleged sexual relationship with appellant.

A. eventually moved out of appellant's home into a residence she shared with her boyfriend Mike Cohen.   A. did not tell Cohen about her alleged sexual relationship with appellant.   One day, Cohen overheard A. talking to her father on the telephone.   A. had called him to ask for money and he had refused.   A. threatened to expose the secret she had with him.   After A. hung up the telephone, Cohen called appellant and confronted him with molesting A.   Appellant denied it.

Several weeks later, A. told her boss at work about her relationship with appellant.   Her boss, a former police officer, contacted the police.   The police arranged for a “cool call,” that is, for A. to call appellant and confront him with their relationship while being tape recorded.   During the call, appellant refused to discuss A.'s allegations concerning their sexual relationship;  however, he did not deny its existence.

Appellant testified, denying any sexual contact with A.   His defense also was aimed at discrediting A. with evidence of her drug addiction, personality disorders, reputation for dishonesty, and sexual activity outside the home.

DISCUSSION

Appellant argues the cartoons admitted into evidence did not tend to prove any issue in the case.   He further argues the cartoons were introduced by the prosecution for an improper motive—to use them as evidence of his alleged predisposition to commit the charged offenses.   His arguments have merit.

 Respondent counters, on the basis of several statements by defense counsel, that appellant did not dispute the admission of the cartoon evidence in the trial court, implying he has waived the issue on appeal.   Respondent's view of the record is short-sighted.

First, the statements by defense counsel, read together, indicate counsel had no objection to the admission of “two or three,” “sexual” cartoons which A. would testify were shown to her by appellant as specifically depicting and legitimizing their alleged sexual conduct.¹  This is not what happened.   A. did not testify that appellant told her or implied the sexual cartoons validated their conduct.   Moreover, numerous (3200) highly offensive cartoons were admitted, both of a sexual and non-sexual nature.

Second, the issue of the cartoons' relevancy was fully argued in the trial court.   Defense counsel made a written motion to exclude the evidence on the basis that the nature of appellant's employment and his creation of Chester the Molester had no reasonable tendency to prove any material issue, and further had the substantial risk of inflaming the jury's passions.

The prosecution responded that the Chester the Molester cartoons portrayed a man who molested little girls.   The prosecution reasoned that, since appellant repeatedly showed the cartoons to his daughter, they were relevant to prove his state of mind at the time of the offenses on the basis that they “expos[ed A.] to a mentality which operated to lower her inhibitions about sexual contact with her father and legitimize their incestuous behavior․  [¶] The very nature of the cartoons themselves show defendant's ‘bent of mind’ toward the activity with which he is charged.”   In oral arguments on this issue before the judge, the prosecutor asserted the cartoons exposed the victim to appellant's “lifestyle of incest.”

The record establishes appellant objected to the admission of the cartoons in the trial court.

 As below, the People theorize on appeal that the cartoons were admissible on the issue of appellant's intent or state of mind.   Respondent explains that appellant used the cartoons to perpetuate the crimes against his daughter by showing them to her on a monthly basis, by giving her unlimited access to the cartoons, by giving her cartoons to take to her friends, and by asking her if some of the cartoons looked familiar.   Respondent asserts that these acts were intended by appellant to persuade or indoctrinate the child on the acceptability of sex between older men and young girls, thereby facilitating his sex with her.

We disagree.   The People failed to present any specific facts showing appellant actually used the cartoons to “indoctrinate” A.   Since there is no evidence to support such use, the inference respondent seeks from the cartoons, that they were an aid in accomplishing sex with the child, is speculative.

No evidence is admissible except relevant evidence.  (Evid.Code, § 350.)   Relevant evidence is evidence having any tendency in reason to prove or disprove any disputed fact.  (Evid.Code, § 210.)   The trial court is vested with wide discretion in determining the relevance of evidence.   However, the court has no discretion to admit irrelevant evidence.   Evidence providing only speculative inferences is irrelevant.  (People v. Babbitt (1988) 45 Cal.3d 660, 681–682, 248 Cal.Rptr. 69, 755 P.2d 253.)

The trial court admitted the cartoon evidence on the condition that A. would testify they were shown or made available to her on an ongoing basis.   Yet, that on numerous occasions she looked at appellant's cartoons does not by itself have any tendency in reason to prove appellant intended thereby to induce her into having sex with him.   The drawings were appellant's employment product and he performed this work at home.

There is no evidence that the cartoons had any influence on or reflected appellant's state of mind at the time of the alleged crimes.   No testimony establishes that appellant said or did anything directly to A. from which the jury could infer the cartoons were used for the purpose of accomplishing sexual gratification.   The record does not even reflect what specific cartoons appellant showed A. from his monthly work product.   In addition, the theory that appellant needed an aid to induce A. into having sex is inconsistent with the evidence, which indicates she compliantly went into the bedroom with appellant whenever he asked her if she wanted to lie down.

The only information in A.'s testimony which might have had a tendency to show a connection between the cartoons and the alleged crimes was her statement that she overheard appellant say one had to experience life to write about it.   On the other hand, this evidence is insufficient since the record does not establish the cartoons were part of any scheme by appellant to seduce A.   She did not testify that appellant showed her the cartoons prior to them engaging in sex.   Nor, according to A.'s testimony, was there any discussion accompanying the exhibition of appellant's monthly work product.   From all indications in the record, A.'s viewing of the cartoons and her alleged sexual conduct with appellant were entirely separate and distinct occurrences.   Respondent's assertion that they were related to each other is merely theoretical.

That appellant might have asked A. if some cartoons “looked familiar” also is insignificant.   Assuming appellant had asked this question, A. failed to testify that this question related to any specific cartoon[s].  Indeed, out of the 3200 cartoons exhibited to the jury, only one involving incest was shown to A. by the prosecutor.   As to this one cartoon, there was no testimony by A. that appellant had specifically asked her to look at it or had discussed it with her in any manner.

Standing alone and without any logical tendency to prove any criminal act by appellant, the cartoons merely provided evidence of his admittedly distorted world view, clearly not an issue.

 Assuming solely for argument sake the disgusting cartoons had some relevance, their prejudice far outweighed their probative value.   (Evid.Code, § 352.)   All of the cartoons, in appellant's words, were designed to denigrate every segment of the population.   Many were about extremely offensive non-sexual subjects.

Respondent's protest, that California appellate courts have repeatedly countenanced the admissibility of similar evidence under similar circumstances is, without merit.   In all of the cases respondent cites, People v. Gann (1968) 259 Cal.App.2d 706, 66 Cal.Rptr. 508, People v. Reeves (1980) 105 Cal.App.3d 444, 164 Cal.Rptr. 426, and People v. Dunnahoo (1984) 152 Cal.App.3d 561, 199 Cal.Rptr. 796, there was some evidence that the pornographic visual material had been shown to the minor victims just prior to the criminal acts taking place, or comprised part of the criminal acts themselves, circumstances which plainly are missing from the present case.

Nor do we find respondent's out-of-state cases persuasive.

In State v. Nolan 717 S.W.2d 573 (Mo.App.1986), the defendant was convicted of molesting a minor girl, the daughter of his live-in girlfriend.   At issue was the relevance of a “Show Me” book, purportedly a teaching aid for sex education which contained sexually explicit photographs of nude children.   The reviewing court held the evidence was relevant to demonstrate defendant showed the book to the victim to make her more receptive by persuading her that sexual contacts gave pleasure and were not wrong.   Defendant kept the book in a drawer, easily accessible to all the children in the household.   As such, the court held, the book “would tend to create an atmosphere of sex consciousness, ․ [¶] The jury could reasonably find that defendant's display of the book to young girls of very short acquaintance and outside his family was inappropriate conduct indicating his preoccupation with sex, making it reasonable to believe that he took advantage of the victim.”

We disagree with the reasoning of Nolan, which basically comprises the People's theory for justifying the admission of the cartoons in this case, i.e., that they created a sexually permissive “atmosphere” intended to make the victim more willing to engage in sexual activities.   As in our case, there was no evidence in Nolan that the sexually explicit material was an inexorable part of the defendant's criminal acts.   Nolan merely admitted he had been aroused by the book.   The appellate court's theory, that the evidence was relevant because it “created an atmosphere of sex consciousness,” dangerously leaves the door open to the admission of highly prejudicial evidence in child abuse cases grounded on speculative inferences about an accused's ownership of sexually explicit material.

State v. Natzke (1976) 25 Ariz.App. 520 [544 P.2d 1121], merely confirms our ruling in the instant case.   There, the defendant's convictions for rape and molestation of his daughter were challenged in part due to the admission of sexually oriented literature found in the defendant's bedroom.   The appellate court stated, “We agree that the mere possession of pornographic or sexually oriented literature does not show any intention or propensity to violate the law․  However, where there is evidence of the use of such pictures in connection with the perpetration of the crime charged, then in our opinion such pictures become relevant and are admissible.   In the current case, the testimony was that appellant's daughter expressed a reluctance to perform the requested sexual acts, that appellant told her that these acts were all right and that ‘everybody does it,’ and that as proof of this fact, appellant showed his daughter pictures and magazines showing sexual activities.”  (Emphasis added.)

Respondent advances several alternative theories for its position that the obscene cartoons were properly admitted.

 First, its claim, that the cartoons had “inherent” relevancy by demonstrating the prevalence of sexually oriented literature in appellant's home, seriously misconstrues the law.   We have found no authority for its proposition that some types of evidence are admissible based solely on some sort of innate relevance.   The relevance of proffered evidence in every criminal case is determined by whether it has any probative connection to the alleged criminal acts.   A piece of evidence which has no probative value in establishing a disputed issue is irrelevant and must not be admitted.   (Evid.Code, §§ 210, 350.)

 Also without merit is respondent's theory that “exploitation” of an alleged victim may be implied from defendant's conduct, in this case, appellant's showing of the cartoons to the victim.   Respondent bases this theory on inapposite authority involving whether a defendant's acts upon another person were accomplished by force or fear.  (People v. Montero (1986) 185 Cal.App.3d 415, 229 Cal.Rptr. 750 [forcible rape].)   In this case, there is no evidence that appellant used force or fear to allegedly accomplish sex with A.

Next, respondent's attempt to characterize the cartoon evidence as probative of appellant's intent is disingenuous.   Absent any evidentiary link between the cartoons and the alleged crimes, no criminal intent could be inferred from appellant merely showing his work to his daughter or permitting her unsupervised access to the material.

 Furthermore, we agree with appellant that his intent was not a disputed issue in the trial court.   There was nothing ambivalent or ambiguous about his alleged acts.  (People v. Haslouer (1978) 79 Cal.App.3d 818, 829, 145 Cal.Rptr. 234.)   If the jury decided A. was in part telling the truth, intent obviously was established by the very acts the jury believed appellant committed.  (Id., p. 830, 145 Cal.Rptr. 234.)   Moreover, appellant's defense was the denial of any improper touching of A.   Since no “innocent” or “mistaken” physical touching was alleged, appellant did not place the element of his intent in issue.  (People v. Kelley (1967) 66 Cal.2d 232, 241, 57 Cal.Rptr. 363, 424 P.2d 947.)   In child molestation cases, evidence of the criminal acts themselves carry a strong inference that they were done with the specific intent of arousing sexual desires.  (Id., p. 244, 57 Cal.Rptr. 363, 424 P.2d 947.)

 Respondent's emphasis on appellant's state of mind does not justify the prosecution's utilization of the cartoon evidence during the trial.   The record reveals the prosecutor consistently used the cartoons as support for his conclusion that appellant led a sexually depraved lifestyle.²  However, whether he did or not is not in issue:  the question in the trial court was whether appellant committed the charged offenses.   The subject of his lifestyle was irrelevant on the issue of guilt.

Implicit in the prosecutor's statements about appellant's lifestyle was the notion that if appellant was depraved enough to create Chester the Molester, he must have transferred this sick attitude to the relationship with his own daughter, thereby making it probable that he molested her.   The prosecution seems to have been more preoccupied with the fact appellant drew the cartoons than its concern that the cartoons were shown A.   Its correlation between lifestyle and criminal act constituted no more than an impermissible use of the cartoons as character evidence.   Evidence about a defendant's character which attempts to establish an inference of his predisposition to commit crime is prohibited.  (Evid.Code, § 1101, subd. (a);  People v. Valentine (1988) 207 Cal.App.3d 697, 704, 254 Cal.Rptr. 822, citing People v. Alcala (1984) 36 Cal.3d 604, 635, 205 Cal.Rptr. 775, 685 P.2d 1126.)

 Does the erroneous admission of the cartoons and their subsequent utilization by the prosecution as prohibited character evidence require the reversal of appellant's convictions?   Yes.

 A judgment shall not be set aside by reason of the erroneous admission of evidence unless the reviewing court is of the opinion the error complained of resulted in a miscarriage of justice.  (People v. Coleman (1988) 46 Cal.3d 749, 777, 251 Cal.Rptr. 83, 759 P.2d 1260, citing Evid.Code, § 353;  Cal.Const., art. VI, § 13.)

We disagree with the trial court's statement in denying appellant's new trial motion that the cartoons did not pollute the verdict since the jury acquitted appellant of more counts than it convicted him on.   The verdict also can be interpreted the opposite way:  if appellant was acquitted of more counts than he was convicted on, why was he convicted?

The evidence of the alleged molestations was no stronger than that of the alleged incest and oral copulation.   Yet, the jury did not find appellant guilty of the incest or oral copulation counts.

If the jury believed the defense in part, then it is reasonable to conclude that the cartoon evidence tipped the scales of justice against appellant on the counts on which he was convicted.   The prejudicial nature of the inadmissible evidence is obvious;  the cartoons were intended to outrage the public.   Presumably this would include the jurors.

Respondent urges it is inconsistent for this court to rule the cartoons were irrelevant in proving appellant's guilt, yet at the same time to conclude the evidence was devastating in terms of the jury's perception of him.   This argument fails to distinguish between legal relevancy and relevancy in fact.   As appellant points out, the problem with the highly inflammatory cartoons (both sexual and non-sexual) is that a layperson would consider them too relevant in judging his credibility.

As we have stated, the People impermissibly attempted to prove appellant's guilt by focusing on his profane world view.   The prosecutor's references to appellant's depraved lifestyle, via the cartoon evidence, could easily have influenced the jury to conclude that appellant must have been “a bad enough person” to have committed at least some of the charged crimes.

Since the verdicts depended in large part on the jury's assessment of the credibility of appellant and A., it is reasonably probable that a result more favorable to appellant would have resulted had the repugnant cartoons not been admitted.  (People v. Burgener (1986) 41 Cal.3d 505, 528, 224 Cal.Rptr. 112, 714 P.2d 1251;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243;  Cal. Const., art. VI, § 13.)

Appellant's convictions are reversed.

FOOTNOTES

1.   Defense counsel stated:  “If that's the prosecution's theory to explain [A.'s] conduct, that she was subjected to cartoons of a sexual nature constantly, for the purpose of indoctrinating her, or legitimizing the conduct in which she engaged, allegedly with her father, I don't take issue with that theory, and anticipate the prosecution will advance․  [¶] ․ if the Court were going to limit the introduction of Mr. Tinsley's cartoons having to do with sexual subject matter to those which [A.] would claim depict their conduct, and her father said, ‘This depicts our conduct,’ I would not object, if that was the basis upon which the Court would admit those cartoons, the two or three which may fit in to that category.”

2.   In his opening argument to the jury, the prosecutor focused on appellant's creation of the cartoon strip Chester the Molester.   The prosecutor commented that A. had come to accept this comic strip as appellant's “way of life.”   The prosecutor's closing statement also contained the theme of appellant's lifestyle.   His opening comment was that, although pornography was not on trial, appellant's pornographic cartoons were relevant to show his “attitude toward what he does and his ability to rationalize [his conduct].”   Other comments included the following.  “What do we know about Dwaine Tinsley?  ․ We know that this is a man who considers Chester the Molester to be social commentary, and a man who lives to violate taboos, be it race, religion, sex or incest.”  “We got Hustler Humor, that focuses on his cartoons, to show how he rationalize things.”  “[A.] found herself interjected into a lifestyle in which incest and sex ․ and child molestation was [sic ] accepted, and acceptable.”   “[A.] lived with a man who put the smile on the face of the child in this [Chester the Molester] cartoon, this piece of social commentary.   That's what she lived with.   And she learned to smile.”

STEVEN J. STONE, Presiding Justice.

GILBERT and YEGAN, JJ., concur.