People v. Schott

DECISION

Defendant Deborah Hale Schott moved this Court May 31, 1978, to dismiss the charge against her on the grounds that (I) Guam Criminal and Correctional Code, § 28.50, is unconstitutionally vague and overbroad, (II) § 28.50 is unconstitutional as applied, and (III) Criminal and Correctional Code, Chapter 28, Article 2, denies equal protection of the laws.

Defendant’s first argument deserves little discussion since this Court has already determined that § 28.50 is not vague and overbroad. People v. Daly, 1 Guam R. 520 (1978).

Furthermore, this Court is not willing at this time to decide that the state could never find conduct such as that of the defendant obscene. However, in the Daly decision the specific examples of conduct set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607 (1973), were read into Chapter 28, Article 2, so as to define specific sexual conduct. Those examples read as follows:

(a) Patently offensive representation or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

*532The People apparently misread the Miller and Daly decisions since they argue that the examples are “merely illustrative, and not the beginning and end of the obscenity area.” Miller required that an obscenity statute specifically define prohibited sexual conduct. True, the examples given in Miller were only illustrative of the type of conduct which could be specifically defined. However, where, as here, they have been adopted as specific examples of sexual conduct they are the beginning and end of the obscenity area. Sexual conduct not defined by statute cannot be criminal after Miller.

The defendant is charged with “pulling and snuggling a customer to her breast in a public place.” The most cursory reading of the Miller examples indicates that the defendant’s alleged act is not included. The complaint herein fails to state a charge under § 28.50.

It is not necessary to reach defendant’s third argument.

Defendant’s Motion to Dismiss is granted.

SO ORDERED.