City of Youngstown v. DeLoreto

• Decision Date: 10 September 1969
• Citation: 19 Ohio App.2d 267,251 N.E.2d 491
• Parties: , 48 O.O.2d 393 CITY OF YOUNGSTOWN, Appellee, v. DeLORETO, Appellant.
• Court: Ohio Court of Appeals

Page 267

19 Ohio App.2d 267

251 N.E.2d 491, 48 O.O.2d 393

CITY OF YOUNGSTOWN, Appellee, v. DeLORETO, Appellant.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Sept. 10, 1969.

Syllabus by the Court

1. Ordinances or statutes which prohibit the possession or sale of obscene materials without reference to guilty knowledge (scienter) or guilty purpose (mens rea) on the part of the accused are unconstitutional.

2. When a criminal ordinance or statute does not clearly make guilty knowledge and guilty purpose elements of the offense, but judicial interpretation has made such knowledge and purpose necessary elements, an affidavit charging the offense solely in the language of the ordinance or statute is insufficient.

3. Pornography is the portrayal of erotic behavior designed to cause sexual excitement. It is words, acts, or representations that are calculated to stimulate sex feelings independent of the presence of another loved and chosen human being. It is divorced from reality in its sole purpose to stimulate erotic response. It is preoccupied with and concentrates on sex organs for the purpose of sexual stimulation. It emphasizes them and focuses on them in varying ways calculated to incite sexual desire.

4. Art and pornography are distinguished as follows: True art conveys a thought, a speculation, or a perception about the human condition. Pornography is the pictures of sex organs and their usage devoid of all other meaning-the personality having no place. They bear in upon one a sense of increasing ugliness and degradation of the human being.

5. Where police officers enter a store selling books and magazines during business hours, the same as any other member of the general public, identify themselves to the person in charge of the store, select only one copy of several magazines alleged to be obscene, do not arrest the person in charge but inform him that they are going to bring the magazines to their office for review and that, if a decision is made to prosecute, the magazines would be used as evidence, and offer to pay for such magazines, but the person in charge voluntarily permits the police officers to take such magazines without paying for them, such conduct by such police officers does not constitute either an unlawful search, an unlawful seizure, or an unlawful prior restraint.

6. Under the present state of the law, Youngstown City Ordinance 132.09(a) and Section 2905.34, Revised Code, are not unconstitutionally vague in the use of the standard of 'obscene, indecent, lewd or lascivious.'

7. In order for a statute or ordinance prohibiting obscene publications to be constitutionally valid, the moral standards of the people as a whole constitute the only test allowable.

8. The power to determine what acts shall constitute crimes, and what acts shall not, belongs exclusively to the legislative branch of government and is not shared by the courts.

9. The determination of community standards relating to the description or representation of sexual matters is a legislative rather than a judicial function.

10. The laws of Ohio, and the city of Youngstown prohibit extra-marital sexual relations, as offensive to the moral standards of the people of Ohio. Nudity to the extent of exposing the external genitalia of a male or female human body is also prohibited as likely to incite or encourage extra-marital sexual relations.

11. One of the purposes of Section 2905.34, Revised Code, and Youngstown City Ordinance 132.09(a) is directed at obscene publications that are likely to incite or encourage sexual conduct contrary to the moral standards of the people of Ohio.

12. Photographs of male or female human bodies exposing their external genitalia in a manner designed to cause sexual stimulation or excitement are contrary to the moral standards of the people of Ohio.

13. Pictorial pornography is included among the obscene publications prohibited by Section 2905.34, Revised Code, and by Youngstown City Ordinance 132.09(a).

14. Photographs which are close-up views of the fully exposed genital area of the model and in which the focus is on the sex organ of the model are pornography, are offensive to the moral standards of the people of Ohio, and are obscene publications within the meaning of both Section 2905.34, Revised Code, and Youngstown City Ordinance 132.09(a).

15. Nudity is not per se obscenity. The portrayal of humankind as God made them is not obscene, because there can be no obscenity in God's own handiwork.

16. The use of the human body for sexual behavior not intended in the creation of human beings can make such behavior obscene.

17. Photographs of nude females in unusual and unnatural positions, for the purpose of exposing their genital area and focusing the camera on their sex organs, degrades the purpose of God's creation and is such an abuse of His handiwork as to make such behavior obscene.

18. The standard of the United States Supreme Court on obscenity is something that falls short of hard core pornography.

19. Pictorial pornography is not constitutionally protected from governmental regulation when juveniles are concerned.

20. Individuals who are offended by pictorial obscenity have a right to be protected from having such obscenity intruded upon them without their consent.

21. The constitutional rights of each individual are subject to reasonable limitations in relation to the rights of others.

22. The decisions of the United States Supreme Court indicate that its standards for obscenity are variable rather than inflexible, and the application of such standards will vary according to the nature of the materials and the use or purpose of obscene publications.

23. The result of a Legislature's failure to define 'obscene' in a meaningful way is to delegate the responsibility of determining what acts of publication on sex are obscene to the courts and ultimately to the United States Supreme Court.

24. There are different constitutional considerations between statutes that are 'clearly drawn' and those that are so 'vague' or 'indefinite' as to provide no clear standard.

25. The visual impact of a photograph is greater than written or spoken words, and pictures of sexual scenes can not be shown with as much frankness as they may be described in books.

26. It has been generally recognized that the right of an individual to publicly engage in activity that would otherwise be permitted, but is prohibited by law because it is offensive to the community morals, must yield to the rights of the majority to prohibit what is offensive to reasonable community moral standards.

Patrick J. Melillo, Director of Law, and Jack W. Nybell, Asst. Director of Law, Youngstown, for appellee.

Dennis Haines, Youngstown, for appellant.

LYNCH, Presiding Judge.

Defendant, appellant herein, is appealing his conviction in a trial before Judge Joseph Donofrio of the Youngstown Municipal Court for violation of Youngstown City Ordinance 132.09(a) entitled 'Indecent Literature,' in which he was fined $200 and costs. Defendant challenges the constitutionality of this ordinance.

YOUNGSTOWN CITY ORDINANCE ON INDECENT LITERATURE.

Youngstown City Ordinance 132.09(a) provides as follows:

'Whoever publishes, distributes, circulates, sells, lends, gives away, exhibits, or has in his possession or under his control with intent to publish, distribute, circulate, sell, lend, give away or exhibit any book, magazine, article, advertisement, print, or written or printed matter of any kind or form which, as a whole or in part, is obscene, indecent, lewd or lascivious, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than two hundred dollars or imprisoned not more than thirty days, or both.'

The affidavit in this case charged defendant with violation of city Ordinance 132.09(a) in that he 'did have in his possession or under his control with intent to distribute, sell or exhibit magazines, which, as a whole or in part, is obscene, indecent or lascivious.'

Prior to the trial, defendant timely filed a motion to dismiss the affidavit on the ground that Youngstown City Ordinance 132.09(a) is unconstitutional. The trial judge overruled this motion prior to the trial of the case.

GUILTY KNOWLEDGE AND PURPOSE.

Defendant has renewed his contention before this court that Youngstown City Ordinance 132.09(a) is unconstitutional, because it lacks the criminal element of knowledge.

Both the United States Supreme Court and the Ohio Supreme Court have held that ordinances or statutes which prohibit the possession or sale or obscene materials without reference to guilty knowledge (scienter) or guilty purpose (mens rea) on the part of the accused are unconstitutional. Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205; State v. Griffith, 174 Ohio St. 553, 190 N.E.2d 907; State v. Warth, 173 Ohio St. 15, 179 N.E.2d 772; State v Jacobellis, 173 Ohio St. 22, 179 N.E.2d 777; and Cincinnati v. Marshall, 172 Ohio St. 280, 175 N.E.2d 178.

Counsel for the city of Youngstown point out that there are many statutory crimes in Ohio in which knowledge or intent is a necessary element of the crime but the applicable statutes do not make any specific reference to knowledge or intent, such as Sections 2901.12 (robbery) and 2901.13 (armed robbery) of the Revised Code.

We hold that when a criminal ordinance or statute does not clearly make guilty knowledge and guilty purpose elements of the offense, but judicial interpretation has made such knowledge and purpose necessary elements, an affidavit charging the offense solely in the language of the ordinance or statute in insufficient.

The Ohio Supreme Court had this issue before it on indictments filed under Section 2905.34, Revised Code, and has held that, where a criminal statute does not clearly make a certain specific intent an element of the offense, but judicial interpretation has made such intent a necessary element,...