65 P.3d 433

STATE of Arizona, Appellee, v. Jerome Henry EVENSON, Appellant.

No. CR-01-0438-PR.

Supreme Court of Arizona.

March 24, 2003.

ORDER

On consideration of the trial record, the evidence, the briefs, and the arguments of counsel, a majority of the court, consisting of Vice Chief Justice McGregor, Justice Berch, Judge Espinosa, and Chief Justice Jones, has determined that review of the ease was improvidently granted.

IT IS THEREFORE ORDERED vacating the grant of review as improvident and dismissing the case.

Justice FELDMAN,

dissenting from the order, gives his,reasons as follows.

The publication contains nothing obscene or pornographic and portrays no sexual act, unless one believes that depicting the female breast or advertising “personal” services is either obscene, pornographic, or sexually explicit. Material similar to that in The Beat is readily available to minors and everyone else in movies and on television, particularly cable television, as well as in magazines and newspapers. Thus, I cannot agree that these exquisitely tacky ads for exotic dance clubs and undescribed personal services may support a criminal conviction, absent some evidence that minors have been or could be harmed by the material. In fact, in this case, there was no evidence that any minor ever saw any of the material or would even be allowed in any of the clubs.

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