Adams v. State

• Decision Date: 16 March 2004
• Docket Number: No. 49A02-0307-CR-568.,49A02-0307-CR-568.
• Citation: 804 N.E.2d 1169
• Parties: Loren Jay ADAMS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

804 N.E.2d 1169

Loren Jay ADAMS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0307-CR-568.

Court of Appeals of Indiana.

March 16, 2004.

Sarah L. Nagy, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Judge.

Appellant-defendant Loren Jay Adams appeals his convictions for Exhibition of Obscene Matter,¹ a class A misdemeanor and Distribution of Obscene Matter,² a class A misdemeanor. Specifically, Adams asserts that Indiana's Obscenity Statute, Indiana Code section 35-49-2-1, is unconstitutionally vague and that the evidence was insufficient to support the convictions. In support of his sufficiency claim, Adams argues that the materials were not obscene, that there is community acceptance of the materials that Adams displayed and distributed, and that it is not illegal to display obscene materials within the privacy of one's own home. Finally, Adams asserts that convictions for both offenses would violate double jeopardy principles. Concluding that Adams has waived the argument with respect to his constitutional claim regarding vagueness of the Obscenity Statute, that the evidence was sufficient to support the convictions and that no double jeopardy violation occurred, we affirm the judgment of the trial court.

FACTS³

Sometime in January 2002, Indianapolis police detective Timothy Blackwell became involved in an undercover investigation regarding Adams's alleged distribution, production and sale of obscene material. After communicating with Adams via the internet and on the telephone, Detective Blackwell and a female informant met with Adams at a bar on February 19, 2002. Detective Blackwell and the informant told Adams that they were interested in making sex videos because Adams indicated that he had previously videotaped group sex scenes.

Thereafter, all three went to Adam's residence, where Adams showed Detective Blackwell various images and video clips on his computer screen of a woman having sexual intercourse with a dog, as well as a woman having oral sex with a horse. Adams also indicated that he had "regular" pornography for sale, along with "fetish" and "animal" sex tapes. Tr. p. 23.

Detective Blackwell then paid Adams $200 for four videotapes. Those tapes showed females engaging in various sexual acts with animals.⁴ According to Detective Blackwell—a vice investigator with over twelve years of experience—he had never seen videos of animal-human sex for sale in local video stores, and he had never been able to successfully purchase this type of video over the internet.

A search of Adams's residence was conducted and, on May 31, 2002, the State charged Adams with numerous criminal offenses, including class A misdemeanor distribution of obscene matter, which was based on the sale of the tapes, and exhibition of obscene matter based on the images that had been displayed on the computer.

Thereafter, Adams filed a motion to suppress evidence that the police unlawfully seized from his residence including certain papers, a handgun, videotapes, a computer, computer accessories and marijuana. The trial court ultimately granted Adams's motion because the probable cause affidavit for the search warrant failed to sufficiently allege that the confidential informant was credible and reliable. Appellant's App. p. 54. As a consequence, the State proceeded to trial only on the Exhibition and Distribution charges. Following a trial by court, it was determined that the material at issue was obscene. Additionally, the trial court found that the material appealed to the prurient interests in sex and that it lacked serious literary, artistic, political and scientific value. As a result, Adams was found guilty of both offenses and was sentenced to concurrent terms of 180 days on each count Adams now appeals.

DISCUSSION AND DECISION

I. Constitutionality of Obscenity Statutes

Adams first contends that his convictions must be reversed because Indiana's obscenity statute is unconstitutionally vague. Specifically, Adams argues that Indiana's obscenity statute fails to give the type of notice that would enable an ordinary citizen to comprehend precisely what conduct is prohibited.

Generally, a challenge to the constitutionality of a criminal statute must be raised by a motion to dismiss prior to trial, and the failure to do so waives the issue on appeal. Ind.Code § 35-34-1-4; I.C. § 35-34-1-6; Payne v. State, 484 N.E.2d 16, 18 (Ind.1985); Smith v. State, 727 N.E.2d 763, 766 (Ind.Ct.App.2000). Here, Adams failed to file a motion to dismiss, and he did not object to the constitutionality of the statute at trial. As a result, Adams may not challenge the constitutionality of the statute for the first time on appeal, and the issue is waived.

II. Sufficiency of the Evidence

Adams next contends that the evidence is insufficient to support his convictions. Specifically, Adams claims that the materials he displayed and sold to Detective Blackwell were not obscene and that there is community acceptance of them. Additionally, Adams asserts that the conviction for exhibiting the materials may not stand because he displayed the materials to Detective Blackwell in the privacy of his own home and the United States Supreme Court's opinion in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), protects such conduct.

We first note that with respect to sufficiency of the evidence claims, this court will affirm a defendant's conviction if, considering only the probative evidence and reasonable inferences supporting the trial court's judgment, and without weighing evidence or assessing witness credibility, a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Rogers v. State, 741 N.E.2d 395, 396 (Ind.Ct.App.2000), trans. denied. Finally, evidence is insufficient to convict only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt. Bradford v. State, 675 N.E.2d 296, 298 (Ind.1996). When sufficiency challenges are made to convictions for obscenity offenses, we note that an obscenity determination may be based solely upon the fact finder's viewing of the allegedly offensive material. Lewis v. State, 726 N.E.2d 836, 841 (Ind.Ct.App. 2000), trans. denied. That is, the State is not required to submit expert testimony on community standards, or show that no reasonable person would find value in the material. Fordyce v. State, 569 N.E.2d 357, 363-64 (Ind.Ct.App.1991).

In addressing the issues that Adams presents today, we note that obscenity is not protected speech under the free speech clause of the Indiana Constitution, Fordyce, 569 N.E.2d at 360-61, and the genesis of Indiana's statutory definition of obscenity is the tripartite test developed by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973):

The basic guidelines for the trier of fact must be: (a) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra [408 U.S. 229] at 230 [92 S.Ct. 2245, 33 L.Ed.2d 312 (1972) ]; ... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Id. at 24, 93 S.Ct. 2607. Shortly after Miller was decided, the Indiana legislature codified almost verbatim the Miller obscenity standard. See 1975 Ind. Acts Pub.L. No. 341-1975. Only slightly revised since its original enactment, Indiana Code section 35-49-2-1 currently provides that:

A matter or performance is obscene for purposes of this article if:

(1) the average person, applying contemporary community standards, finds that the dominant theme of the matter or performance, taken as a whole, appeals to the prurient interest in sex;

(2) the matter or performance depicts or describes, in a patently offensive way, sexual conduct; and

(3) the matter or performance, taken as a whole, lacks serious literary, artistic, political, or scientific value.

This statute makes it clear that a person of ordinary intelligence can understand what constitutes a "prurient interest in sex" or what constitutes a "patently offensive" depiction of sexual conduct. See Porter v. State, 440 N.E.2d 690, 693 (Ind.Ct. App.1982). The Miller test remains the accurate gauge with respect to obscenity cases under the first amendment, and we have previously upheld the constitutionality of our obscenity statute. State v. Virtue, 658 N.E.2d 605, 608-09 (Ind.Ct.App.1995),trans. denied; Fordyce, 569 N.E.2d at 360-62. Turning to the merits here, Detective Blackwell testified that Adams showed him video clips on his computer of women engaging in sexual intercourse with dogs and performing oral sex on a horse and other animals. Tr. p. 20-22. The trial court then specifically found that Detective Blackwell was a "very credible witness." Tr. p. 119. In our view, given the nature of the materials that were exhibited to Detective Blackwell, it was within the fact finder's prerogative to find them obscene within the meaning of the statute. As a result, we decline to set aside the trial court's determination that the images shown to Detective Blackwell satisfied the definition of obscenity in accordance with Indiana Code section 35-49-2-1.

Our resolution of Adams's sufficiency claim does not stop here, however, inasmuch as he goes on to argue that the conviction for exhibiting the materials must be vacated because he displayed the images at his own residence. In support of this claim, Adams directs us to Stanley v. Georgia where the United States Supreme Court held that "the First and Fourteenth Amendments prohibit making mere...