Ford v. State

• Decision Date: 27 September 1979
• Docket Number: No. 3-1276A303,3-1276A303
• Citation: 394 N.E.2d 250,182 Ind.App. 224
• Parties: Bruce Wayne FORD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 250

394 N.E.2d 250

182 Ind.App. 224

Bruce Wayne FORD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-1276A303.

Court of Appeals of Indiana, Third District.

Sept. 27, 1979.

Leonard V. Campanale, Mishawaka, for appellant.

Theo. L. Sendak, Atty. Gen., Charles D. Rogers, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Judge.

Defendant-appellant Bruce Wayne Ford was adjudged guilty of distributing obscene matter ¹ and fined $10,000. His appeal specifies these issues for review:

(1) whether the trial court erred in denying his motion to dismiss;

(2) whether there was sufficient evidence that the magazine was obscene;

(3) whether the Indiana obscenity statute is unconstitutional; and (4) whether the fine was excessive.

The facts surrounding this appeal are not in dispute. On October 16, 1975, Officer Charles Culp purchased a magazine entitled "Juicy Fuck" from Ford at the Pleasureland Museum in Mishawaka, Indiana. The magazine depicted various men and women performing acts of sexual intercourse, cunnilingus, and fellatio.

Defendant's first assertion of error is that the trial court erred in denying his motion to dismiss. The State, on the other hand, contends that this issue is waived because defendant's motion to correct errors filed to comply with Ind. Rules of Procedure, Trial Rule 59(B). That rule provides in part:

". . . The statement of claimed errors shall be specific rather than general, and shall be accompanied by a statement of the facts and grounds upon which the errors are based."

Ford's motion to correct errors merely recited that "(e)rror was committed in the denial of defendant's Motion to Dismiss on March 5, 1976." An examination of his motion to dismiss reveals six separate allegations of error. Thus, defendant has neglected to specify which of the grounds he is relying upon as error for purposes of this appeal. Consequently, the trial judge being unapprised of specific alleged errors could not reasonably have done anything other than deny this portion of the motion to correct errors.

Ford next maintains that the verdict of the jury was not supported by sufficient evidence because the State failed to prove that the magazine in question was obscene. The basis for this alleged error is that the State did not present any evidence that the average person applying contemporary community standards would find the dominant theme of the magazine appealed to the prurient interest in sex or that the magazine lacked serious literary, artistic, political, or scientific value. Ford argues at length that his expert witnesses established that the magazine did not appeal to a prurient interest in sex, that it was not patently offensive, and that it contained serious literary, artistic, political or scientific value.

At trial the prosecution tendered the magazine itself into evidence. This act alone was sufficient evidence for the jury to determine the magazine's obscenity. In Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446, the United States Supreme Court held:

"Nor was it error to fail to require 'expert' affirmative evidence that the materials were obscene when the materials themselves were actually placed in evidence. United States v. Groner, 479 F.2d 577, 579-586 (CA5 1973); Id., at 586-588 (Ainsworth, J., concurring); Id., at 588-589 (Clark, J., concurring); United States v. Wild, 422 F.2d 34, 35-36 (CA2 1969), cert. denied, 402 U.S. 986 (91 S.Ct. 1644, 29 L.Ed.2d 152) (1971); Kahn v. United States, 300 F.2d 78, 84 (C.A. 5), cert. denied, 369 U.S. 859 (82 S.Ct. 949, 8 L.Ed.2d 18) (1962); State v. Amato, 49 Wis.2d 638, 645, 183 N.W.2d 29, 32 (1971), cert. denied Sub nom. Amato v. Wisconsin, 404 U.S. 1063 (92 S.Ct. 735, 30 L.Ed.2d 751) (1972). See Smith v. California, 361 U.S. 147, 172 (80 S.Ct. 215, 228, 4 L.Ed.2d 205) (1959) (Harlan, J., concurring and dissenting); United States v. Brown, 328 F.Supp. 196, 199 (ED Va. 1971). The films, obviously, are the best evidence of what they represent. 'In the cases in which this Court has decided obscenity question since Roth, it has regarded the materials as sufficient in themselves for the determination of the question.' Ginzburg v. United States, 383 U.S. 463, 465 (86 S.Ct. 942, 944, 16 L.Ed.2d 31) (1966)." (Footnote omitted.)

413 U.S. at 56, 93 S.Ct. at 2634, 2635.

The court noted that obscenity is not a subject that lends itself to the traditional use of expert testimony since such testimony is usually admitted for the purpose of explaining to lay jurors what they otherwise could not understand. "Simply stated, hard core pornography . . . can and does speak for itself." United States v. Wild (2d Cir. 1969) 422 F.2d 34, 36.

Next, defendant assails the constitutionality of the Indiana obscenity statute, IC 1971, 35-30-10.1-1, on First Amendment grounds. The first prong of this attack is premised on the erroneous assumption that all sexual expression is constitutionally protected. It is well established that obscenity is not within the area of constitutionally protected speech or press. Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; Paris Adult Theatre I v. Slaton, supra ; Kaplan v. California (1973), 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492.

Secondly, defendant insists that the statute is vague and overly broad since it does not provide adequate notice of what acts are prohibited. The upshot of this assertion is that the language of the statute is not sufficiently precise because the words do not mean the same thing to all people in every instance.

A criminal statute is vague when it fails to inform persons of ordinary intelligence what their conduct must be in order for them to be guilty of a violation thereof. Platt v. State (1976), Ind.App., 341 N.E.2d 219. The criteria for determining what constitutes obscene material subject to state regulation was delineated in Miller v. California, supra, where it was held that appraisal of the nature of the matter by "contemporary community standards" was an adequate basis for establishing obscenity.

"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.) at 230 (92 S.Ct., at 2246), quoting Roth v. United States, supra, (354 U.S.) at 489 (77 S.Ct., at 1311); (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. We do not adopt as a constitutional standard the 'Utterly without redeeming social value' test of Memoirs v. Massachusetts, 383 U.S., at 419 (86 S.Ct., at 977); that concept has never commanded the adherence of more than three Justices at one time. See Supra, at 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, (408 U.S.) at 232 (92 S.Ct., at 2247); Memoirs v. Massachusetts, supra, (383 U.S.) at 459-460 (86 S.Ct., at 998) (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S., at 204 (84 S.Ct., at 1686) (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U.S. 254, 284-285 (84 S.Ct. 710, 728, 11 L.Ed.2d 686) (1964); Roth v. United States, supra, (354 U.S.) at 497-498 (77 S.Ct., at 1315-1316) (Harlan, J., concurring and dissenting.)" (Footnote omitted.)

413 U.S. at 24-25, 93 S.Ct. at 2615.

The Indiana statute is written in the form prescribed by Miller. Indeed, the language of the statute mirrors the holding in that case. Defendant has not demonstrated an infringement upon any First Amendment guarantees.

As a corollary to his void-for-vagueness assault, Ford claims that the statute violates the constitutional requirements of due process.

In Roth v. United States, supra, the Supreme Court was confronted with a similar argument. There the statutes under attack punished the sale, advertising, or mailing of obscene material.

"Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. '. . . (T)he Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices . . . .' United States v. Petrillo, 332 U.S. 1, 7-8 (67 S.Ct. 1538, 1542, 91 L.Ed. 1877). These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark '. . . boundaries sufficiently distinct for judges and juries fairly to administer the law . . . . That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense . . . .' Id., 332 U.S. at page 7, 67 S.Ct. at page 1542. See also United States v. Harriss, 347 U.S. 612, 624, n. 15 (74 S.Ct. 808, 815, 98 L.Ed. 989); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340 (72 S.Ct. 329, 330, 96 L.Ed. 367); United States v. Ragen, 314 U.S. 513, 523-524 (62 S.Ct. 374, 378, 86 L.Ed. 383); United States v. Wurzbach, 280 U.S. 396 (50 S.Ct. 167, 74 L.Ed. 508); Hygrade Provision Co. v. Sherman, 266 U.S. 497 (45 S.Ct. 141, 69 L.Ed. 402); Fox v. State of Washington, 236 U.S. 273 (35 S.Ct. 383, ...