Fordyce v. State

• Decision Date: 28 March 1991
• Docket Number: No. 48A02-8906-CR-00263,48A02-8906-CR-00263
• Citation: 569 N.E.2d 357
• Parties: Rocky L. FORDYCE and Aeros Entertainment Corporation, Appellants (Defendants), v. STATE of Indiana, Appellee (Plaintiff).
• Court: Indiana Appellate Court

Page 357

569 N.E.2d 357

Rocky L. FORDYCE and Aeros Entertainment Corporation Appellants (Defendants), v. STATE of Indiana, Appellee (Plaintiff).

No. 48A02-8906-CR-00263.

Court of Appeals of Indiana Second District.

March 28, 1991.

Patrick Murphy, Geoffrey B. Yelton, Anderson, for appellants.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Appellants-defendants Rocky L. Fordyce and Aeros Entertainment Corporation (hereinafter collectively referred to as Fordyce) appeal their convictions for distributing obscene matter that describes sexual conduct involving a person under sixteen years of age, ¹ a class D felony, claiming Indiana's obscenity statute violates both the United States and Indiana Constitutions, that the court erred in not admitting a comparable book into evidence, and that the evidence was insufficient to support the obscenity conviction and the enhancement of the offense to a felony.

We affirm.

FACTS

On September 10, 1987, Officer Rick Griner of the Anderson Police Department entered the Aeros Adult Bookstore in downtown Anderson where he purchased two paperback books entitled Incest Mommy and Dog Fun For Daughter.

The book Incest Mommy tells a story of a mother seducing her son for his first sexual experience and details various sexual activities that take place between the two. Dog Fun For Daughter describes a teenage girl, her mother, and a friend of the girl, and the sexual experiences they have with a German Shepherd and a Doberman Pinscher. Dog Fun For Daughter also features a teenage boy who makes obscene calls to the daughter and her mother, and then, at the conclusion of the book, shows up to engage in a sexual romp with the mother.

The stories in both books are fictional. The books contain no photographs, but consist only of text and advertisements for various adult products. While Dog Fun For Daughter refers to certain characters as "teens" and "teenagers," no specific age is provided. Incest Mommy is even less specific; while the book refers to certain childlike traits exhibited by the son, i.e. his "racing" around the house, his lack of physical development, etc., there is no direct indication of the age of the characters.

Based on the content of the books, Fordyce was arrested and charged with selling obscene materials which depicted or described persons under sixteen years of age. Following a jury trial, Fordyce was convicted and given a three year sentence and ordered to pay a $5,000 fine or, in the alternative, make a $5,000 contribution to charity. All but sixty days of the sentence was suspended.

ISSUES

Fordyce raises several issues for our consideration, which we restate as follows:

1. Whether Indiana's obscenity statute violates the first and ninth Amendments of the United States Constitution?

2. Whether Indiana's obscenity statute violates Article I, Section 9 of Indiana's Constitution?

3. Whether the court erred by not admitting into evidence a book comparable to the ones alleged to be obscene?

4. Whether the evidence was sufficient to support the conviction?

5. Whether the evidence was sufficient to support the enhancement of Fordyce's sentence?

The dissenting opinion raises sua sponte the appropriateness of the trial court's charitable option sentencing order and concludes that it was improper for the reasons addressed in Judge Sullivan's dissenting opinion in Campbell v. State (1990), Ind.App., 551 N.E.2d 1164, a case in which the defendant, as here, did not directly raise the issue. We are aware of no authority deeming a charitable option sentencing order to be fundamental error, and therefore consider the issue to be waived by Fordyce's failure to raise it on appeal. See Prentice v. State (1985), Ind., 474 N.E.2d 496.

DECISION

ISSUE ONE--Whether Indiana's statutory definition of obscenity violates the first and ninth Amendments of the United States Constitution?

PARTIES' CONTENTIONS--Fordyce claims that due to recent modifications made by the United States Supreme Court to the Miller obscenity standard in Pope v. Illinois ², Indiana's statutory definition of obscenity now violates the first and ninth Amendments of the United States Constitution. The State responds that Fordyce's analysis is based on minority positions taken by certain justices and that those views do not represent a reversal of the Miller standard.

CONCLUSION--Indiana's statute does not violate the first and ninth Amendments to the United States Constitution.

The genesis of Indiana's statutory definition of obscenity is the tripartite test developed by the United States Supreme Court in Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419:

"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, 2246, 33 L.Ed.2d 312 (1972) ], quoting Roth v. United States, supra [354 U.S. 476] at 489 [77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498 (1957) ]; (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."

Miller, 413 U.S. at 24, 93 S.Ct. at 2615.

Shortly thereafter, the Indiana legislature codified almost verbatim the Miller obscenity standard. See 1975 Ind.Acts Pub.L. No. 341-1975. Only slightly revised once since its original enactment, ³ IC 35-49-2-1 (1988) now provides:

Sec. 1. 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.

Fordyce asserts that Pope renders unconstitutional Indiana's statutory definition of obscenity. Reaching far he cites Justice Scalia's concurrence and Justice Stevens' dissent in Pope as a basis for reexamining the Miller obscenity standard, an examination he claims should lead this court to conclude that our statutory definition of obscenity violates the first and ninth Amendments of the United States Constitution.

In our opinion, Pope does not vitiate the Miller obscenity standard. It merely clarifies that while the first two prongs of the Miller test are to be applied with reference to community standards, the third prong is to be utilized by employing a "reasonable person" test:

"[t]he proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole."

Pope, 481 U.S. at 500-01, 107 S.Ct. at 1921 (emphasis supplied).

The jury in this case was instructed in accordance with the Miller obscenity standard as clarified by Pope, ⁴ record at 133, which was perfectly proper. Fordyce does not contend the instruction was incorrect, but argues that having been so instructed the jury could not have reached the conclusion the books were obscene. He offers no compelling reasoning for this conclusion or for his assertion that Pope, which reaffirms the Miller obscenity standard, makes unconstitutional Indiana's definition of obscenity which is based on the Miller standard. He merely reweighs the evidence.

ISSUE TWO--Whether Indiana's obscenity statute violates Article I, Section 9 of Indiana's Constitution?

PARTIES' CONTENTIONS--Fordyce and the Indiana Civil Liberties Union (ICLU) ⁵ argue that obscenity is protected speech under the free speech clause of Indiana's Constitution and that, therefore, Indiana's statute criminalizing the dissemination of obscene materials is unconstitutional. The State responds that, even adopting the historical analysis urged by Fordyce and the ICLU, obscene speech is not protected by Indiana's Constitution.

CONCLUSION--Indiana's obscenity statute does not violate the free speech clause of Indiana's Constitution.

Article I, Section 9, of the Indiana Constitution provides:

"No law shall be passed restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever; but for the abuse of that right, every person shall be responsible."

Fordyce and the ICLU urge that this court adopt an interpretation of this clause similar to that reached by the Oregon supreme court in State v. Robertson (1982), 293 Or. 402, 649 P.2d 569. Taking an historical approach, the Oregon supreme court concluded that Oregon's Constitution prohibits the enactment of any law, backed by punitive sanctions, which forbids speech or writing unless it can be shown that the prohibition falls within an historically established exception to Oregon's free speech guarantee. Robertson, supra. ⁶

The Oregon supreme court later applied this analysis to the issue of obscenity and concluded that a statute making the dissemination of obscene materials a crime was unconstitutional because obscene expression does not fall within any historical exception to the plain wording of the Oregon Constitution. Oregon v. Henry (1987), 302 Or. 510, 732 P.2d 9. Thus, the Oregon supreme court concluded that because restrictions on sexually explicit and obscene expression between adults were not well established at the time Oregon's Constitution was adopted, obscenity was not an historical exception to freedom of speech, and, thus constitutes protected speech under Oregon's Constitution.

By this precedent, Fordyce and the ICLU...