{
  "id": 6139104,
  "name": "Terry Edward GABRION v. STATE of Arkansas",
  "name_abbreviation": "Gabrion v. State",
  "decision_date": "2001-03-21",
  "docket_number": "CA CR 00-473",
  "first_page": "170",
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  "casebody": {
    "judges": [
      "Robbins and Bird, JJ., agree."
    ],
    "parties": [
      "Terry Edward GABRION v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Andree Layton Roaf, Judge.\nTerry Edward Gabrion was convicted in a Pulaski County jury trial of two counts of pandering or possessing a visual or print medium depicting sexually explicit conduct involving a child, for which he received concurrent four-year sentences in the Arkansas Department of Correction. On appeal, Gabrion challenges the sufficiency of the evidence and the trial judge\u2019s refusal to give the jury his proffered instruction defining the word \u201clewd.\u201d We affirm.\nThe charges arose from a complaint made by two individuals that Gabrion had possessed videotapes containing child pornography. Gabrion admitted to the North Little Rock Police that he had made the tapes of two girls, whom he knew to be fourteen years old. On the tapes, Gabrion can be seen and heard directing both girls to undress and assume suggestive poses that showed off their breasts and buttocks. The tapes contained full frontal nudity of both young girls as they donned costumes that Gabrion had provided for them.\nLooking first at Gabrion\u2019s challenge to the sufficiency of the evidence, he concedes that he knowingly possessed two videotapes depicting two fourteen-year-old girls with their breasts exposed and that in one \u201cscene\u201d one of the girls kissed one of the other girl\u2019s nipples. However, Gabrion argues that these scenes do not constitute sufficient evidence to sustain his convictions because they do not involve sexually explicit conduct as required by Ark. Code Ann. \u00a7 5-27-304 (Repl. 1997). Gabrion claims that in deference to Berber v. New York, 458 U.S. 747 (1982), the legislature inserted the word \u201clewd\u201d into the statute to avoid \u201cany constitutional problem\u201d and that the images on the tapes simply were not \u201clewd.\u201d He asserts that if \u201cany exhibition by a child\u201d were deemed to be \u201clewd,\u201d the word would have no meaning and the statute would criminalize even the possession of nude or seminude baby pictures. Without citation of authority, Gabrion argues that in determining if the acts on the tapes were \u201clewd,\u201d this court should ignore the fact that the girls were underage and consider the same acts as if they were performed by adults. This argument is without merit.\nIn a challenge to the sufficiency of the evidence, we review the evidence in the fight most favorable to the State and sustain a judgment of conviction if there is substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another. Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999). The offense of pandering or possessing visual or print medium depicting sexually explicit conduct involving a child is codified in pertinent part as follows:\n(a) No person, with knowledge of the character of the visual or print medium involved, shall do any of the following:\n(2) Knowingly solicit, receive, purchase, exchange, possess, view, distribute, or control any visual or print medium depicting a child participating or engaging in sexually explicit conduct.\nArk. Code Ann. \u00a7 5-27-304 (Repl. 1997). In pertinent part, Ark. Code Ann. \u00a7 5-27-401(3) (Repl. 1997) states: \u201c \u2018Sexual conduct\u2019 means . . . lewd exhibition of the genitals or pubic area of any person or the breasts of a female.\u201d Black\u2019s Law Dictionary in part defines \u201clewd\u201d as \u201cobscene, lustful, indecent, lascivious.\u201d 907 (6th ed. 1990). It defines \u201cindecent\u201d as \u201coffensive to common propriety; offending against modesty or dehcacy.\u201d Id. at 768.\nGabrion\u2019s argument ignores the fact that the videotapes in question show full frontal nudity of both underage girls. Even if we were to accept Gabrion\u2019s argument that exhibition of the girls\u2019 breasts on the tape was not \u201clewd,\u201d his failure to address this important fact is fatal to his appeal. However, even if Gabrion had not made this omission, we would still hold that the scenes depicted on the tapes were at the very least indecent and, therefore, \u201clewd\u201d as contemplated by Ark. Code Ann. \u00a7 5-27-401(3).\nGabrion also argues that the trial court erred in failing to instruct the jury as to the definition of \u201clewd\u201d because \u201csexually explicit conduct\u201d was defined as the \u201clewd exhibition of. . . the breast of a female.\u201d He contends that \u201clewd\u201d does not have an ordinary meaning, and with no definition of \u201clewd\u201d in the code, the jury was left to speculate as to its meaning. This argument is without merit.\nWe disagree with Gabrion\u2019s bald assertion that \u201clewd\u201d does not have an ordinary meaning, and it is settled law that common words with ordinary meanings need not be explained to the jury. Pridgeon v. State, 266 Ark. 651, 587 S.W.2d 225 (1979). Moreover, at trial, Gabrion proffered the following jury instruction:\n\u201cObscene material\u201d means material which:\n(1) Depicts or describes in a patently offensive manner sadomasachistic abuse, sexual conduct or hard-core sexual conduct,\n(2) that to the average person, applying contemporary statewide standards, and\n(3) taken as whole lacks serious literary, artistic, political, or scientific value.\nAs noted above, the definition of lewd is more inclusive and not simply synonymous with the word \u201cobscene,\u201d which, conversely, is a term of art. Accordingly, even if we were to find that an instruction on the meaning of lewd was indicated in this case, the failure to give Gabrion\u2019s proffered instruction was not reversible error because it was an inaccurate statement of the law. See, e.g., Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999).\nAffirmed.\nRobbins and Bird, JJ., agree.",
        "type": "majority",
        "author": "Andree Layton Roaf, Judge."
      }
    ],
    "attorneys": [
      "Stuart Vess, for appellant.",
      "Mark Pryor, Att\u2019y Gen., by: Jeffrey A. Weber, Ass\u2019t Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Terry Edward GABRION v. STATE of Arkansas\nCA CR 00-473\n42 S.W.3d 572\nCourt of Appeals of Arkansas Division IV\nOpinion delivered March 21, 2001\nStuart Vess, for appellant.\nMark Pryor, Att\u2019y Gen., by: Jeffrey A. Weber, Ass\u2019t Att\u2019y Gen., for appellee."
  },
  "file_name": "0170-01",
  "first_page_order": 196,
  "last_page_order": 200
}