Albright v. State

• Decision Date: 23 December 1986
• Docket Number: No. 4-785A181,4-785A181
• Parties: Deanna ALBRIGHT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 488

501 N.E.2d 488

Deanna ALBRIGHT, Appellant, v. STATE of Indiana, Appellee.

No. 4-785A181.

Court of Appeals of Indiana,

Fourth District.

Dec. 23, 1986.

Richard Kammen, Susan L. Wiant, McClure, McClure & Kammen, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., William E. Daily, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

Defendant-appellant, Deanna Albright, owner in 1983 of both the Adult News Depot and the Paradise Adult Movieland in Elkhart, Indiana, was convicted by a jury of four counts of selling obscene matter. ¹

The convictions resulted from the purchase of sexually explicit movies and magazines by various law enforcement officials on four different occasions. Albright was given a two year suspended sentence, six months probation and a $10,000 fine ($2,500 for each count). She does not challenge the sufficiency of the evidence to establish that the explicit sexual material was in fact obscene under our statute. However, she raises other errors for our review which are as follows:

I. Whether the court erred in preventing the defense from presenting evidence on community standards through the testimony of an expert witness, Elizabeth Mooney, a certified sex therapist.

II. Whether the court erred in excluding testimony of Tony Marcetti, a video store owner, as to community standards.

III. Whether there was selective prosecution and enforcement against Albright which constituted a violation of the equal protection clauses of the United States and Indiana constitutions.

IV. Whether the State unduly harmed and prejudiced the defendant during final argument by suggesting Albright might open adult bookstores in the neighborhoods of the jury.

V. Whether the Indiana obscenity act is unconstitutional under the United States and the Indiana constitutions.

Issue I

Expert Testimony Regarding Community Standards

Albright argues the trial court committed reversible error at trial by preventing expert evidence on community standards through the testimony of witness Elizabeth Mooney, a certified sex therapist. ² Albright claims the defendant in an obscenity prosecution is entitled to introduce relevant and appropriate expert testimony regarding contemporary community standards and relies on Kaplan v. California ³ (1973), 413 U.S. 115, 121, 93 S.Ct. 2680, 2685, 37 L.Ed.2d 492; Saliba v. State ⁴ Albright argues a proper and sufficient foundation was laid which rendered further testimony regarding community standards admissible. At trial, Albright's counsel made an offer to prove that Mooney would have testified:

(1985), Ind.App., 475 N.E.2d 1181, 1185; and Smith v. California ⁵ (1959), 361 U.S. 147, 164-165, 80 S.Ct. 215, 224-225, 4 L.Ed.2d 205 (Frankfurter, J. concurring). Further, Albright asserts Mooney's education and experience in counseling approximately 60 persons with sexual dysfunction who live in the community of Elkhart County make her more qualified and knowledgeable about community standards than a juror, and her testimony should have been permitted because it was relevant and would have aided the jury in determining community standards.

"Elkhart County unlike some counties in Michigan or southern Indiana do not have communes, there is a high infidelity rate as a cause of divorce in Elkhart County; there is normal marriage bonding and divorcing in one-parent households in Elkhart County; and the chances are that there are celibate households in Elkhart County--the chances are remote; and that this material could comport to the minimum or the community would accept or tolerate this material in Elkhart County."

The State argues the trial court properly sustained objections to Mooney's testimony as to community standards because: (1) the witness was not qualified to express such "An expert witness is one who by reason of education or special experience, has knowledge respecting a subject matter about which persons having no particular training are incapable of forming an accurate opinion or making a correct deduction." Wade v. State (1986), Ind., 490 N.E.2d 1097. Generally, the competence of a witness to testify as an expert is a matter to be determined by the trial judge and subject to his or her broad discretion. Martin v. Roberts (1984), Ind., 464 N.E.2d 896, 901; Traveler's Indemnity Co. v. Armstrong (1982), Ind., 442 N.E.2d 349, 365. There are two requisites for the admission of expert testimony. First, the subject matter of the testimony must be beyond the understanding of a layman to assess the evidence presented and draw an informed conclusion. Second, the witness must have sufficient skill and knowledge in the field to aid the trier of fact in its search for the truth. Martin, supra, 464 N.E.2d at 901. Where a trial court is presented with a witness who has knowledge in and experience with the subject matter before the court and the jury would benefit therefrom, the witness should be permitted to testify as to his opinion, leaving the extent of his knowledge and experience to cross-examination and any contrary evidence presented by the opponent. Jones v. State (1981), Ind., 425 N.E.2d 128. City of Indianapolis v. Robinson (1981), Ind.App., 427 N.E.2d 902.

an opinion; (2) the trial court is not required to admit expert opinion on the issue of community standards; and (3) the expression of expert opinion would have invaded the province of the jury. We agree with the State's first contention and find Albright did not establish that Mooney was qualified to express an opinion on the issue of contemporary community standards. Because we affirm the exclusion of Mooney's testimony on this basis, we need not address the question of whether the trial court is required to admit expert opinion offered by the defendant regarding contemporary community standards in an obscenity prosecution.

Albright clearly established that Mooney is an expert in sexual dysfunction and sex therapy, and the trial court permitted her testimony on the issues of the scientific and educational value to her in her work of both sexually explicit material in general and of the specific films and magazines for which Albright was charged. Mooney's testimony shows she earned a bachelor of arts at Beloit College, a master of science at University of Wisconsin and is currently working toward a doctorate in clinical psychology at the University of Wisconsin. Mooney was a Fulbright Scholar and Ford Foundation grant recipient. She worked for several years as a research associate at Indiana University's Institute for Sex Research, commonly known as the Kinsey Institute. Mooney has been certified ⁶ and employed as a sex therapist since 1978. She currently resides in South Bend, works as a sex therapist in private practice with Associated Therapy Consultants in PawPaw, Michigan, and is executive director of Planned Parenthood of North Central Indiana with offices in South Bend.

In her testimony, Mooney described a sex therapist as an individual "with special training who attempts to solve the problems people present when they have some difficulty in their lives which they acknowledge to be sexual, in other words, sexual dysfunction." Since entering practice in 1978, Mooney has consulted with approximately 200 patients a year. In the last three years she has counseled about 60 people in Elkhart County with sexual dysfunctions. Mooney stated she might use films and books as a tool in her work. With regard to the exhibits of magazines and films in this case, Mooney testified that she might use them in the treatment of her In Saliba, supra, this court held that an opinion poll on the relevant population's views of nudity and sexuality in films is admissible to establish contemporary community standards in an obscenity prosecution if the poll was properly conducted and therefore trustworthy. An opinion poll was viewed as perhaps the best evidence of contemporary community standards of tolerance for sexually explicit material because of its practical advantages. The alternatives to a public poll include presentation of in-court testimony from the entire target population or of a representative sample, which is patently impractical. A third alternative, use of an expert witness to testify as to his or her opinion of community standards, is not as direct or accurate as a public opinion poll. ⁸ To qualify as an expert in contemporary community standards, the witness must show the professional acceptance and reliability of the basis for his opinion. If this foundation could be demonstrated, then the opinion would be admissible and cross-examination would go to the weight given to the expert's opinion.

                patients. 7  When asked whether she utilized sexually explicit material in her work, she responded, "it's very hard to talk about sex and not become sexually explicit either in film or conversation or in literature."
                

In this case, it has not been demonstrated that work with 60 persons from the community with severe sexual problems qualifies the witness to express opinions about the entire community population's attitudes toward sexually explicit material. We agree with Albright that Mooney may, in fact, know much more about human sexual dysfunction than all of the jurors, but human sexual dysfunction is not at issue, and counsel failed to show Mooney has training, education, or experience in identifying contemporary community standards. Mooney may, in fact, be qualified to express her opinion on such standards, but counsel failed to demonstrate the professional acceptance and reliability of the basis for her opinion.

Although Mooney's testimony demonstrates she is familiar with persons experiencing sexual dysfunction and with sexually explicit material used in treatment of such persons, her testimony does not show knowledge of the general community's sexual functioning or with their use or tolerance of sexually explicit material in or outside the home. Nor does her testimony show the basis for...