The state Appeals Court upheld a litterbug’s conviction on obscenity charges for repeatedly throwing advertisements ripped from a porn magazine into the same residential neighborhood, but overturned the same man’s conviction for disseminating matter harmful to a minor; noting that no children ever saw the material.
Mark A. Rollins, 48, was convicted in 2000 on three counts of disseminating obscene matter, and one count of disseminating matter harmful to a minor. While driving through a sparsely populated neighborhood, Rollins had thrown ads from an unnamed porn magazine onto the street three times over a three-month period – though two incidents occurred just two days apart. Each littering incident led to one charge.
The defendant’s lawyer, William Rota, argued that there was not enough evidence to establish that Rollins purposefully distributed the obscenity, though it was established that it was Rollins who had left the materials in question on the residential street. The materials that were deemed obscene were mostly ads for adult videos that could be obtained in identified New England retail stores.
Judge James McHugh found that “….the evidence was sufficient to permit the judge to conclude beyond a reasonable doubt that, in each of the three instances giving rise to the charges against the defendant, he purposely dropped material from his car intending and expecting that the material would be seen by individuals whom he knew were in the area.”
McHugh noted that the materials that led to of two charges were from the same magazine, and the fact that they were thrown out of Rollin’s car in the same neighborhood on two separate occasions, suggested that Rollin’s was purposefully placing the ads in that neighborhood.
Eyewitness accounts reported that Rollins had slowed down in front of the places he was choosing to place the ads, not driving by at normal speed and casually littering. These accounts were not disputed.
Upon approaching her house, the car slowed to a speed of approximately five or ten miles per hour. In front of her house, the car's driver ‘slowly lifted his arm and ... stuck it out the window and let go of the material [he was holding in his hand]. He didn't throw it quickly.’” Judge James McHugh wrote in the court's decision, citing the testimony of one of the women who had filed charges against McHugh.
The ads, as just single pages of material, were deemed to be obscene. The judge stressed that the manner in which the material was distributed was a factor in find the material obscene, writing that ““witnesses' involuntary encounters with the material after the defendant purposely used it to festoon their residential neighborhood was a factor entitled to significant weight in forming the obscenity judgment.”
The charge of disseminating matter harmful to a minor was from Rollins having once thrown pages from a magazine near a school bus stop where children stood at the time. The children went on the bus without seeing the pages, and there was no evidence that Rollins had intended for that to happen.
Rollins was sentenced to a suspended 18-month jail term on the charges and placed on probation until November 2006.
