PHOENIX – Judge Roslyn O. Silver today dismissed obscenity charges against Chris Ankeney, co-owner of Five Star Video and Five Star Video Outlet LLC.
Ankeney was charged with transporting obscene material and transporting obscene material by common carrier stemming from the sale of eight JM Productions DVDs. Judge Silver's decision follows her dismissal yesterday of identical charges against Ken Graham, the corporation’s other co-owner.
Ankeney’s attorney Richard Hertzberg presented just three witnesses during the defendant’s case: longtime Five Star employees Ethan Singer and Nathan Garrett, and David Michael Pain, a private investigator hired by the defense to purchase materials comparable to those charged in the indictment.
Both Singer and Garrett testified that Ankeney had nothing to do with the website www.fivestardvd.com, through which FBI agent Todd Price had purchased the JM videos in question. Both also testified as to the relative computer proficiency of Ankeney and Graham, stating that on a scale of one to ten, Ankeney would score a 1 or 2 while Graham would score an 8 or 9. The testimony implied that Ankeney could not possibly have ordered videos for the website, nor maintained nor managed the site in any way.
Therefore, at the end of the defense case when Hertzberg argued for dismissal of the charges against Ankeney, he pointed to the testimony that Ankeney had had nothing to do with the website. Moreover, Hertzberg argued that of the roughly 20,000 different titles stocked in the Five Star warehouse, the defendant could not be assumed to be aware that eight of them – 1/20th of one percent of the inventory - were of the “more extreme” JM variety.
Prosecutor Kenneth Whitted argued that the credibility of the defense witnesses was a matter for the jury’s consideration, and that therefore, a dismissal of the charges by the judge was not appropriate. Whitted also said that the mere fact that Ankeney was present at the business at least four out of five work days, and that the door to his office was just 50 feet from the door to the warehouse where all the inventory was stocked, implied that Ankeney was familiar with the “character and content” of the materials being sold.
However, Judge Silver ruled that based on a Ninth Circuit decision in the Sherwin case, the fact that Ankeney was aware that sexually explicit videos were being sold by his companies did not necessarily impute to him the knowledge that some of the videos might be so extreme as to be considered obscene. She also pointed out that it was very possible that Ankeney would not know the content of the eight JM Productions videos stocked among the company’s 20,000 other videos in inventory. She therefore dismissed all charges against Ankeney.
After the luncheon recess, counsel are expected to discuss the judge’s proposed instructions to the jury regarding the remaining defendants, Five Star Video LC and Five Star Video Outlet LC, and the case is expected to be in their hands later this afternoon.
Stay tuned to AVN.com for updates.