## Facts

- John Benjamin Shymanovitz, a middle-school guidance counselor in Guam, took groups of boys on outings and allowed some to sleep over at his home.
- He was charged in two indictments (joined for trial) with multiple counts of criminal sexual conduct with minors, assault, and child abuse involving several boys under his supervision.
- Police searched his residence and seized various items, including condoms, surgical gloves, K-Y Jelly, children’s underwear, a calendar page, and sexually explicit adult magazines, including multiple issues of *Stroke* (a gay adult magazine).
- Over objection, the prosecution elicited detailed testimony describing graphic sexual acts depicted in the magazines.
- The prosecution also introduced two fictional magazine articles depicting sexual activity between an adult man and a boy (one father/son, one priest/boy), each bearing a printed warning that sexual activity with minors is illegal.
- The trial court admitted the two articles, K-Y Jelly, and a calendar page, and the prosecution argued the material showed intent to commit the charged offenses.
- A jury convicted Shymanovitz on numerous counts; the Appellate Division affirmed, and Shymanovitz appealed.

## Issues

1. Whether evidence describing and admitting sexually explicit adult magazines and two fictional adult–minor stories was relevant to prove intent to commit charged sexual offenses against minors.
2. Whether, even if marginally relevant, the evidence should have been excluded because the danger of unfair prejudice substantially outweighed any probative value.

## Decision

- The Ninth Circuit reversed the convictions and remanded.
- The court held the trial court erred by allowing detailed testimony about the magazines’ explicit content and admitting the two fictional articles to prove intent.
- The court concluded the error was prejudicial and not harmless because the evidence was inflammatory and the case turned heavily on credibility.

## Legal Principles

- Evidence must have a non-speculative tendency to make a material fact more or less probable to be relevant.
- Possession of lawful adult pornography, without a concrete link to the charged conduct, has little probative value on intent to commit sexual crimes against minors.
- Graphic sexual material creates a substantial risk of unfair prejudice by inviting verdicts based on moral condemnation, character, or propensity rather than proof of the charged acts.
- Under Rule 403 (or its analogue), evidence should be excluded when minimal probative value is substantially outweighed by unfair prejudice, confusion of issues, or the risk of an emotional verdict.
- Evidentiary error is reversible when there is a substantial likelihood the improper evidence materially affected the verdict.

## Conclusion

The Ninth Circuit held that the prosecution’s use of graphic adult pornography and fictional adult–minor stories to prove intent was minimally probative and highly inflammatory, inviting improper character and propensity reasoning; because the error likely affected the jury’s credibility determinations, the convictions were reversed and the case was remanded.


People of the Territory of Guam v. Shymanovitz, 157 F.3d 1154 (9th Cir. 1998)