State v. Flynt

• Decision Date: 16 July 1980
• Docket Number: No. 79-556,79-556
• Citation: 63 Ohio St.2d 132,17 O.O.3d 81,407 N.E.2d 15
• Parties: , 17 O.O.3d 81 The STATE of Ohio, Appellee, v. FLYNT et al., Appellants.
• Court: Ohio Supreme Court

Page 132

63 Ohio St.2d 132

407 N.E.2d 15, 17 O.O.3d 81

The STATE of Ohio, Appellee, v. FLYNT et al., Appellants.

No. 79-556.

Supreme Court of Ohio.

July 16, 1980.

Almeta Johnson, Chief Police Prosecutor, and Bruce A. Taylor, Cleveland, for appellee.

Berkman, Gordon, Kancelbaum, Levy & Murray, Bernard A. Berkman, George W. Palda, Cleveland, Herald Price Fahringer and Paul J. Cambria, Jr., New York City, for appellants.

PER CURIAM.

The law is well settled that the government is subject to constitutional restraints in its choice of those whom it may prosecute. As long ago as Yick Wo v. Hopkins (1886), 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1073, 30 L.Ed. 220, the United States Supreme Court stated that although a "law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights," there is a denial of equal protection of the laws.

The conscious exercise of some selectivity in enforcement is not in itself, however, a violation of the United States Constitution. Oyler v. Boles (1962), 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446. In order for selective enforcement to reach the level of unconstitutional discrimination the discrimination must be "intentional or purposeful." Snowden v. Hughes (1944), 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497. This concept of "intentional or purposeful discrimination" was explained in United States v. Berrios (C.A.2, 1974), 501 F.2d 1207, 1211, as follows:

"To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i. e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as 'intentional and purposeful discrimination.' " This test has been recognized by numerous courts. See United States v. Murdock (C.A.5, 1977), 548 F.2d 599, 600; United States v. Ojala (C.A.8, 1976), 544 F.2d 940, 943; United States v. Legget & Platt, Inc. (C.A.6 1976), 542 F.2d 655, 658, certiorari denied, 430 U.S. 945, 97 S.Ct. 1579, 51 L.Ed.2d 792 (1977); United States v. Bourque (C.A.1, 1976), 541 F.2d 290, 292-293; United States v. Peskin (C.A.7, 1975), 527 F.2d 71, 86, certiorari denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976); United States v. Scott (C.A.9, 1975), 521 F.2d 1188, 1195, certiorari denied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976).

Applying these principles to the instant cause it must be conceded that defendants demonstrated that other magazines with a format similar to Hustler, sold in the same stores as that magazine, were not yet being prosecuted, although the authorities were aware of their existence and general content. There are, however, several legitimate reasons testified to at trial as to why Hustler magazine was chosen as a test case. ¹ The prosecutor, for example, testified that while it contained a similar format as other magazines on the market, that some portions of Hustler were more offensive than those in the compared magazines. It was also testified that the prosecution of out-of-state magazines would entail greater difficulties in service of process and extradition. The officers of Hustler, on the other hand, were domiciled in Ohio.

In addition, the defendants did not establish that Hustler alone would be prosecuted. The prosecutor in this cause stated that he did not have the authority to make the decision concerning subsequent prosecutions of other magazines. Testimony from his superiors was necessary to infer that the city of Cleveland would not follow up a successful result in the instant cause with the bringing of additional prosecutions.

The burden on a defendant to show intentional or purposeful discrimination is a heavy one, Berrios, supra, and will not be presumed, Snowden, supra. We hold that the defendants herein did not sustain their burden of establishing a prima facie case of unconstitutional discriminatory prosecution. In order to sustain their burden, the defendants needed to present testimony from those individuals responsible for deciding the intended course of future prosecutions.

Accordingly, the judgment of the Court of Appeals is affirmed. ²

Judgment affirmed.

CELEBREZZE, C. J., and HERBERT, WILLIAM B. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.

PAUL W. BROWN, Justice, dissenting.

I agree with the test used by the majority and I also agree that there is a heavy burden upon the defendants to demonstrate intentional or purposeful discrimination. I would hold, however, that the defendants sustained this burden and that the Court of Appeals and this court wrongfully substituted their own version of the facts for that of the trier of fact in the instant cause.

It is well-settled that in reviewing a decision rendered by a trial court without a jury, a Court of Appeals will indulge in every reasonable presumption in favor of findings made by the court below as a basis for its decision. Beach v. Sweeney (1958), 167 Ohio St. 477, 150 N.E.2d 42. Any fact necessary to sustain the judgment, including reasonable inferences drawn therefrom, must be presumed to have been found by the trial court if evidence was presented in support of such finding. See Brescoll v. Nationwide Mut. Ins. Co. (1961), 116 Ohio App. 537, 543, 189 N.E.2d 173; Thayer v. Shorey (1934), 287 Mass. 76, 191 N.E. 435. The appellate courts in the instant cause have deviated from this principle.

Applying the test used by the majority, governing discriminatory prosecutions, quoted from United States v. Berrios (C.A.2, 1974), 501 F.2d 1207, 1211, it is apparent that the first prong of that test is met. The defendants presented evidence, the witness Taylor conceded, and the trial court found, ¹ that the city of Cleveland had never before prosecuted a magazine like Hustler, despite the fact that magazines similar to or pictorially "stronger" than Hustler were available within the community. Although Taylor justified this as a test case, there was substantial evidence indicating the contrary. Lengthy investigations of similar magazines were dropped without taking even preliminary steps toward prosecution. Taylor's attempted justification, i. e., that he was awaiting the outcome of this case, was contradicted by his subsequent testimony concerning the likelihood of general enforcement in the future if he received a favorable judgment in the case. When asked whether he would then pursue other magazines of this type, Taylor testified that the decision was subject to approval from his superiors this, despite the fact that by his own admission, Taylor possessed the exclusive delegated authority to select which cases to prosecute and he alone had made the decision to pursue Hustler. Furthermore, the evidence strongly indicated that this prosecution was initiated, not to clarify the status of obscenity laws, but rather in response to public reaction to political cartoons.

In light of the trial court's express rejection of the test case rationale, the majority, by selectively adopting testimony supportive of finding this prosecution to be a test case and rejecting evidence to the contrary, improperly impinged on the trial court's prerogative as trier of fact to weigh the evidence and evaluate the credibility of the witnesses. A prosecutor should not be allowed to merely raise the claim that a particular prosecution is a test case,...