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Obscenity conviction reversed

Kevin Lamont Newby got no points for subtlety in his proposition to the female anchor of a Hampton Roads television station.

He mailed 15 photographs of himself in varying states of undress, including full frontal nudity, to the woman at WVEC-TV.

The package containing the photos went first to the station’s office in Hampton and then to Norfolk, where the anchor worked.

It included Newby’s address with an invitation to the anchor to contact him if she liked what she saw. The contact, of course, came from police officers rather than from the woman.

Newby was charged in Hampton with preparing obscene material in violation of Virginia Code § 18.2-374. The charging document did not contain any mention of the subsections of the code, (1), which applies to preparation of obscene materials, or (3), which applies to distribution of them.

His attorney argued at his trial that there was no evidence that Newby prepared the obscene materials in Hampton. Unimpressed, the trial judge found him guilty of distributing obscene materials and sentenced him to six months in jail.

The attorney argued before the Court of Appeals that there was a fatal variance between what was charged – preparing the materials – and what the prosecution proved – distributing them.

In a footnote in its unpublished opinion, the intermediate appellate court said it couldn’t consider that argument because Newby had not preserved it as a question presented in the petition for appeal.

In an unpublished order today, the Supreme Court of Virginia makes no reference to the procedural default found by the Court of Appeals. Instead, it simply finds that Newby was convicted of an offense – distributing obscenity – with which he was never charged and vacates his conviction.

Justice Cynthia D. Kinser dissented without comment.

By Alan Cooper

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