Porn trial results in split verdict

By Jimmy LaRoue

Published: August 15, 2008

STAUNTON — Jurors in Staunton Circuit Court on Friday decided that a video depicting intercourse between a male and female was not obscene, but drew the line at one depicting sex with multiple partners.
The jurors made a clear distinction between the types of intercourse displayed on the two sexually explicit DVDs at the heart of a trial that ended with guilty verdicts on one count of obscenity each for the store and its owner, according to the city’s chief prosecutor.
Following an hour and 44 minutes, the four man, three woman jury found After Hours Video store, along with its owner, Rick Krial, guilty of one charge of obscenity in connection with the selling of the video “City Girls Extreme Gangbang.”
Tinsley W. Embrey, a store employee, was found not guilty on the same charge.
Krial, the store and Embrey were acquitted of an obscenity charge for selling the DVD “Sugar Britches.”
Staunton Commonwealth’s Attorney Ray Robertson believes the jury distinguished between the one-on-one sex depicted in “Sugar Britches,” and the multiple-partner sex shown in “City Girls Extreme Gangbang.”
“They drew the line there,” Robertson said. “That’s my guess.”
Jurors were asked to use a three-part test — based on the 1973 U.S. Supreme Court decision in Miller vs. California — to decide whether the two DVDs were obscene. The test was used to determine if the videos:
n had shameful or lurid content;
n had depictions patently offensive to the average Staunton resident;
n were lacking in artistic, literary, political or scientific value.
With the guilty verdict, Krial received a $1,000 fine and no jail time, while the store received a $1,500 fine. The defense team asked Circuit Court Judge Thomas H. Wood for and was granted a motion to set aside the verdict and not enter a judgment for 60 days.
With plans to appeal the split verdict, defense attorneys said it represents a mixed message.
“I find it difficult to find anything different with [the two DVDs],” said Louis Sirkin, who represented Embrey during the trial.
Krial, in his only comment to reporters following the verdict, said he would file an appeal. His lawyer, Paul Cambria Jr., who has successfully represented Penthouse publisher Larry Flynt, said he would be a part of that process and that “the last chapter hasn’t been written” in this case.
“We’ll regroup and we’ll figure out what we’re going to do,” Cambria said.
He is unsure, for now, what will happen with the store. He said he would likely revisit the objections and motions defense lawyers made during the trial.
Krial, Embrey and After Hours Video originally were charged with multiple misdemeanor and felony counts after undercover police officers purchased 12 DVDs from the store in October 2007.
While pleased with his successful defense of Embrey, Sirkin was disappointed in the jury’s decision to find Krial and the store guilty.
“Anytime there’s a knock on these things, it’s a bite out of the First Amendment,” Sirkin said.
Robertson said there has never been a store like After Hours Video in Staunton.
“It was wrong for this community. It was obscene for this community,” Robertson said.
His response to an appeal: “Bring it on.”
At the start of Friday’s proceedings, Robertson tried to once again get into a description of a girl in one of the videos a witness described as having features more like that of a 12-year-old. Wood rebuffed the move, believing Robertson was once again trying to make the trial more about child pornography.
“If we interject that issue in this case, this case will be severely prejudiced,” Wood said.
With the defense opting to rest its case without calling any witnesses, Wood gave the jury instructions before U.S. Department of Justice Attorney Matthew Buzzelli began closing arguments on behalf of the prosecution.
Buzzelli asked the jury to consider whether the two DVDs it viewed Thursday had serious scientific, political or literary value. The DVDs, he said, were designed to appeal “to an unhealthy interest in sex.”
The case, Buzzelli said, wasn’t about “to each his own,” but “about the consequences of not playing by the rules.”
Cambria countered that adults should have the right to make their own choices with regard to sexual entertainment.
“I submit to you,” Cambria said to the jury, “that this case is about individual rights of an adult in a community in 2008 – not 1958 – but 2008.”
The jury, he said, was the only ones forced to watch the movies.
Tate Love, representing the business, said in his seven minute closing that it didn’t “try to sneak in” the city. Both Krial and Embrey, he aid, told undercover investigators that business was doing well.
Love said people were “voting with their pocketbook.”
“If no one wanted it here, the market would have driven it out,” Love said.
Sirkin, in his closing, said no one truly knows whether the movies are obscene, and said it was the store, and not Embrey, who sold the videos.
“You go to the store not to buy something from Mr. Embrey, Sirkin said. “You buy something from After Hours LLC. When you go to the grocery store, you buy something from Kroger, you don’t buy it from the cashier.”
Robertson, getting the last word before the jury, said this wasn’t a case about privacy, but obscenity. The statute of Virginia, he said, makes it illegal to sell obscene materials.
The defense, Robertson said, shifted the jury’s focus from whether the movies were obscene to whether people wanted to buy them.
Robertson asked the jury to consider whether it had ever seen adult stores, services or products in the city.
“You’ve never seen anything immoral in Staunton until this store came here,” Robertson said.
He called for the jury to send a message that Staunton wasn’t the place for After Hours Video or its products in Staunton.
“Go where they allow it … where they don’t care about the morality or the decency of their community,” Robertson said, “but don’t turn Staunton into Las Vegas.”
Sirkin and Cambria argued that videos like the ones sold in the store are already available to Staunton residents online, as well as on satellite or cable television, but Wood would not allow them to address that before the jury.
“In today’s world, not being able to show the jury what’s on the internet is very, very restrictive,” Sirkin said.