Guam v. Shymanovitz - 157 F.3d 1154 (9th Cir. 1998)

Rule:

While certain types of conduct generally condemned by society may constitute bad acts, possession of lawful reading material is simply not the type of conduct contemplated by 6 Guam Code Ann. § 404(b).

Facts:

John Benjamin Shymanovitz was a middle-school guidance counselor. He began taking a group of boys who attended the school on outings, such as hiking and camping trips, and sometimes had them sleep over at his home. Shymanovitz was charged with sexually and physically abusing seven of the boys while they were under his supervision. Several months later, he was charged with similar offenses relating to four more boys. The two indictments were then joined. Prior to trial, the government filed a motion in limine requesting permission to introduce into evidence two articles from sexually explicit magazines found in Shymanovitz's residence, on the ground that they were relevant to establishing Shymanovitz's intent to commit the offenses. The court deferred ruling on the motion but at trial permitted a police officer, Winnie Blas, to testify that at Shymanovitz's house she seized, among other things, the following: condoms, a box of surgical gloves, a tube of K-Y Jelly, some children's underwear, a calendar, and six sexually-explicit magazines. Of the six magazines, four were entitled "Stroke"; one was entitled "After Midnight"; and one was entitled "Playboy." Officer Blas testified in great detail, over defense counsel's objections, as to the contents of the four issues of "Stroke"; she told the jury that they contained photos of men masturbating; performing auto-fellatio; ejaculating; using sex toys; wearing "leather equipment"; paddling one another; and having oral and anal sex. She also described two articles from the "Stroke" magazines, which had been the subject of the motion in limine. The articles consisted of presumably fictional tales and described two couples engaging in sexual conduct: the first, a father and son; the second, a priest and a young boy. The two articles, the K-Y Jelly, and a page from the calendar were entered directly into evidence. Shymanovitz was convicted of multiple counts of criminal sexual conduct involving children, assault, and child abuse. He appealed his conviction on the ground that his trial was tainted by the admission of such testimony, as well as by the admission of the actual texts of two of the articles. 

Issue:

May the prosecution present testimony regarding the contents of sexually explicit gay adult magazines that are found in the residence of a defendant who is being tried on charges of unlawful sexual activity with minors?

Answer:

No

Conclusion:

The court reversed the convictions, concluding the magazines' contents were improperly admitted when irrelevant to prove required offense elements. The court rejected appellee's argument that such evidence was introduced for the purpose of showing appellant intentionally engaged in sexual conduct for the purpose of gratification. The court observed the charges based on sexual contact required appellee to prove any touching was intentional and a reasonable person would construe such touching as sexual in nature. As a result, the court explained because the test for the character of touching was objective and not subjective, the testimony was immaterial to the offense. The court determined the evidence was highly prejudicial, particularly because the trial hinged upon the jury's assessment of appellant's credibility and likely caused the jury to infer that if he was gay he also deviated from sexual norms in other ways.