Coble was charged with distributing pornographic material when he engaged his webcam and proceeded to masturbate while broadcasting in a private chat session. Coble moved to have his charge reduced to lewdness under the Shondel doctrine. Where there is uncertainty as to which of two punishments is applies to an offense, the trial court will bind over the lesser charge. The trial court found followed the Shondel doctrine and refused to bind over the distribution charge. State appealed.
The Court of Appeals reversed and remanded the case and found that the Shondel did not apply in this case because the elements of the two crimes were different. The Court specifically found that pornographic is different from lewd.
Coble briefed several other issues, but failed to file a cross-appeal and the Court refused to rule on these issues.
Dissent: Even if no cross-appeal was filed, Court still has option to rule on those issues. In this case, Coble briefed and argued these issues. The dissent would rule that Coble’s actions as charged did not were insufficient to meet the distribution of pornography statute and the charge should be dismissed.
Full Decision available at http://www.utcourts.gov/opinions/appopin/coble042210.pdf
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