Opinion
No. 44134.
April 26, 1974.
Criminal law — obscenity conviction — lack of notice of prohibited conduct.
Appeal by LeRoy Wendling from a judgment of the Hennepin County District Court, Rolf Fosseen, Judge, whereby he was convicted of violation of a municipal ordinance against exhibiting obscene materials. Reversed with directions.
Robert J. Milavetz, for appellant.
Keith M. Stidd, City Attorney, and Edward V. Vavreck, Assistant City Attorney, for respondent.
Heard before Otis, MacLaughlin, and Yetka, JJ., and considered and decided by the court.
Defendant was convicted of exhibiting obscene materials in violation of the obscenity ordinance of the city of Minneapolis, Minneapolis Code of Ordinances, § 870.080.
Since the alleged criminal acts of defendant took place before our decision in State v. Welke, 298 Minn. 402, 216 N.W.2d 641 (1974), he did not have the clear notice of legislative proscription that Welke requires.
As this court stated in State v. Carlson, 298 Minn. 415, 416, 216 N.W.2d 650, 651 (1974), decided the same day as Welke:
"* * * [W]e prefer to err, if at all, on the side of that fair notice vouchsafed in Welke. The state's interest is, in our view, sufficiently served by the clear notice of authoritative construction made in Welke without burdening the state and the defendants with the uncertainties and expense of reappeals to the United States Supreme Court concerning its application of conduct antecedent to Welke."
This rationale is also applicable to the case at bar.
Our decision on the above issue makes it unnecessary to consider the other assignments of error raised by defendant in this appeal.
Reversed with directions to dismiss the complaint.