The New Jersey Superior Court, Appellate Division ruled on October 15, 2019 that it is a criminal offense of fourth degree public communication of obscenity under N.J.S.A. 2C:34-4(b) to watch adult pornography while parked in your vehicle if it is in plain view of people outside your car. State v. Lomanto.
The statute involved in this case provides that “[a] person who knowingly publicly communicates obscene materials, as defined in section 2C:34-3 or causes or permits it to be publicly communicated on property he owns or leases or operates is guilty of a crime of the fourth degree.” N.J.S.A. 2C:34-4(b). Proof that an individual made a “public communication of obscene material” gives rise to a presumption that the individual did it “knowingly.” N.J.S.A 2C:34-4( c). In the context of this offense, “knowingly” means defendant “had knowledge of the character and content of the material” he “communicated publicly.”
N.J.S.A. 2C:34-3, defines “obscene material” as: any description, narrative account, display, or depiction of a specified anatomical area or specified sexual activity contained in, or consisting of, a picture or other representation, publication, sound recording, live performance or film, which by means of posing composition, format or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the area or activity.
While this definition is not a model of clarity. It would apply to pornography.
The facts developed at trial are summarized as follows. On April 22, 2014, at 6:33 p.m., Lomanto parked his car in a parking space near the front entrance of the fast food restaurant and shortly thereafter, he lowered the vehicle’s driver-side window all the way down.
Approximately a half-hour later, a mother, with her twelve-year old son in the car, parked next to him. After parking, the boy exited his mother’s vehicle and headed towards the restaurant, to buy food.
While the boy was in the restaurant, the mother noticed Lomanto had “an electronic device on his steering wheel” which “looked like an iPad.” At the time, while her vehicle’s windows were slightly lowered, the mother looked at Lomanto’s iPad from inside her car and noticed “there was... porn going on the video.” Specifically, she saw a “woman with blond hair” performing “oral sex” on a man and then “having sex...after that.” She also “heard moaning on the video.” During depiction of the oral sex, the mother “saw a penis.” The mother became “mortified” and “shocked” because she lived in “a small town” and had “never experienced anything like that in her life.”
Approximately seven minutes after he went into the restaurant, the boy returned to his mother’s car and she immediately drove out of the parking lot without contacting the police because she “was in shock.”
Shortly thereafter the police were notified.
When the officers arrived at approximately 8:21 p.m., Lomanto was still parked at the McDonald’s and his vehicle’s windows were all the way down. According to the officer, when she proceeded towards the driver-side of Lomanto’s vehicle, she saw an electronic device “propped up on... the steering wheel, and on the screen appeared to be an Asian girl covered – sort of pulling a white sheet or something over herself.” She observed what “appeared to be .... a live interaction of some sort. The officer recovered two Hot Wheels cars and a Disney Minnie Mouse figurine from Lomanto’s pocket.
The data in the iPad that showed the entire time he was at the McDonalds Lomanto was browsing one or more pornography websites using the restaurant’s wifi connections. In addition, the officer extracted Skype conversation logs between Lomanto, whose username was “hunkofburninglove,” and several other persons with usernames of “Sharen_cute,” “Marie.aguilar84,” and “Maureen1512.” These were an exchange of flirtatious messages.
The Court held that because Lomanto was parked in a public place and the woman could observe the pornography from outside the car, Lomanto was in fact guilty of the offense charged.
