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Name: People v. Dyke
Case #: A117955
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 04/09/2009

There was insufficient evidence that minor was exposed to “harmful matter.” A sixteen-year-old girl, A.S., accused Dyke of showing her television scenes where a nude woman was dancing for a couple of minutes, and where two people were having sex for approximately 45 seconds. He then came into her bedroom and touched and kissed her. Dyke was convicted of exhibiting harmful matter to a minor in violation of Penal Code section 288.2, subdivision (a), as well as sexual battery. On appeal, Dyke contended that the evidence was insufficient to support a conclusion that the television scenes he showed A.S. constituted harmful matter for the purposes of section 288.2. The appellate court agreed and reversed that count. All nudity is not obscene, even where shown to minors. Likewise, portrayals of sexual activity may not be obscene. The record provides no basis for drawing a reasonable inference that either television scene lacked serious literary, artistic, political, or scientific value. Without that evidence, a reasonable jury would not be able to judge if the clips were “harmful matter” as defined.