Isaac v. State
| Decision Date | 22 September 1982 |
| Docket Number | No. 2-1181A373A,2-1181A373A |
| Citation | 439 N.E.2d 1193 |
| Parties | Melvin E. ISAAC, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Theodore D. Wilson, Wilson, Coleman & Roberts, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Stephan E. Wolter, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Melvin E. Isaac (Isaac) appeals his convictions of two counts of exhibiting an obscene performance 1 and two counts of exhibiting obscene matter, 2 asserting that his convictions and sentences for four offenses were improper because he committed only two illegal acts.
We affirm in part and reverse in part.
The evidence most favorable to the State discloses that two minor boys, J. S. and J. M., visited Isaac's Indianapolis home on September 2, 1979. The boys had been hired to mow Isaac's lawn. At one point, Isaac invited J. S. into his house. Isaac took the boy to an office-like room and began showing him an "X-rated" film. 3
Isaac experienced difficulty in operating the film projector, and while he attempted to adjust the focus, J. S. went outside and asked J. M. to come into the house with him. When the boys entered the room occupied by Isaac, he showed them numerous A trial to the court resulted in Isaac's conviction for four obscenity offenses: 4 He was found guilty on two counts of exhibiting an obscene performance 5 and two counts of exhibiting obscene matter. 6 Isaac's one-year sentences on each count were to be served concurrently, and the sentences were suspended.
obscene photographs and a pornographic magazine. He then continued to run the pornographic movie while both boys watched.
Two issues were preserved for our determination: 7
1. Was Isaac improperly convicted of two counts of exhibiting an obscene performance under Ind.Code 35-30-10.1-3?
2. Was Isaac improperly convicted of two counts of exhibiting obscene matter under Ind.Code 35-30-10.1-2(2) when the evidence was undisputed that he showed the materials to two people at the same time?
ISSUE ONE--Was Isaac improperly convicted of two counts of exhibiting an obscene performance under IC 35-30-10.1-3?
PARTIES' CONTENTIONS--Isaac's position is that in showing the film to the two minors, he committed only one illegal act and that his convictions of two counts of exhibiting an obscene performance violate the double jeopardy clause's prohibition of multiple punishments for a single offense. Although the State concedes that a single exhibition of an obscene film to more than one person at the same time is only one offense, it argues that the evidence shows there were in fact two exhibitions of the pornographic film.
CONCLUSION--Isaac exhibited two separate obscene performances within the meaning of the statute; therefore, two convictions were proper.
Under IC 35-30-10.1-3 [], the State was required to show that Isaac knowingly or intentionally exhibited an obscene performance. "Performance" is defined as "any play, motion picture, dance, or other exhibition or presentation, whether pictured, animated, or alive, performed before an audience of one (1) or more persons." IC 35-30-10.1-1(b) (emphasis supplied). Although the statute has not been interpreted by Indiana courts, the State concedes, and we understand the plain meaning of this definition to be, that a single exhibition to more than one person is only one offense under the obscene performance statute. However, we are persuaded by the State's argument that two separate exhibitions took place.
Because this is a sufficiency of the evidence question, we will not reweigh the evidence or judge the credibility of witnesses. Considering only that evidence most favorable to the State and all reasonable inferences to be drawn therefrom, a conviction will not be set aside if there is substantial evidence of probative value supporting the conclusion of the trier of fact. Gatewood v. State, (1982) Ind., 430 N.E.2d 781; Moon v. State, (1981) Ind., 419 N.E.2d 740.
After Isaac began showing the film to J. S., the boy left the house and returned with J. M. Isaac then showed both boys the photographs and an obscene magazine before showing them the pornographic film. This evidence supports the trial judge's conclusion that two separate exhibitions took place. Thus, Isaac was properly convicted of two counts of exhibiting an obscene performance.
ISSUE TWO--Was Isaac improperly convicted of two counts of exhibiting obscene materials under IC 35-30-10.1-2(2) when the evidence was undisputed that he showed the materials to two people at the same time?
PARTIES' CONTENTIONS--Isaac again complains that he was the victim of prosecutorial "overcharging"; that is, that in exhibiting the obscene photographs to the two minors, he committed only one violation of IC 35-30-10.1-2(2). The State counters with an argument that a crime is committed each time obscene material is exhibited to another person, even though the material may be exhibited to more than one person at the same time.
CONCLUSION--Because Isaac's act of exhibiting obscene materials constituted but one offense, one of the convictions must be reversed.
In determining whether Isaac's convictions violate the double jeopardy principle that a defendant may not be twice punished for the same offense in a single proceeding, we turn to the leading Indiana case, Elmore v. State, (1978) Ind., 382 N.E.2d 893. There, Justice Pivarnik cautioned against focusing upon whether the same act gave rise to the offenses:
Id. at 897. The appropriate test in determining whether a single act constitutes two offenses is whether each offense requires proof of an additional fact which the other does not. Id. at 895 ().
In proving that Isaac engaged in an illegal exhibition under IC 35-30-10.1-2(2) [], the State was required to prove the following four elements: (1) knowing or intentional, (2) exhibition, (3) of obscene matter, (4) to another person. Because what the State alleges to be two offenses occurred at the same time and by identical actions, the first three elements in proving two separate offenses are identical. As the State concedes, the only distinguishing "element" is the identity of the viewer. Thus, the question becomes whether the identity of the person witnessing Isaac's exhibition was an actual element of the offense. Differently stated, does "another person" include one or more persons?
In considering this question, one is immediately struck with the similarities between this type of prohibited conduct and the conduct involved in the "single larceny doctrine", which prevents convictions of multiple thefts when property belonging to the same person or several persons is taken at the same time and from the same place. See 3 Wharton's Criminal Law Secs. 358-59 (14th ed. 1980). Applied by an "overwhelming majority" of jurisdictions, Annot., 37 A.L.R.3d 1407, 1409 (1971), the single larceny doctrine has long been cited as a guiding rule in Indiana, see State v. Elder, (1879) 65 Ind. 282, and followed in numerous Indiana decisions. Williams v. State, (1979) Ind., 395 N.E.2d 239; Furnace v. State, (1899) 153 Ind. 93, 54 N.E. 441; Holt v. State, (1978) Ind.App., 383 N.E.2d 467. See also Bryant v. State, (1969) 252 Ind. 17, 245 N.E.2d 156; Bell v. State, (1873) 42 Ind. 335; Jackson v. State, (1860) 14 Ind. 327.
The rationale behind the rule is that the simultaneous taking of several articles from the same location is the result of a single intent and design. Holt, supra; 2 Wharton's Criminal Law and Procedure Secs. 450-51 (Anderson ed. 1957). The particular ownership or the number of articles taken does not give character to the act of theft, but is merely a part of the description of the offense committed. Furnace, supra; Holt, supra. We find this rationale controlling in this case and are unaware of any authority calling for the application of any exception to the general rule.
Like a thief stealing several articles from the same house at the same time, Isaac's exhibition was pursuant to a single intent and design. And to whom he showed the obscene photographs is of no consequence. The identity and number of Isaac's viewers merely described his exhibition to "another person". Both of Isaac's convictions required the same proof, and under Elmore, two convictions would therefore be improper.
Our conclusion is also supported by the rule that statutes in pari materia must be considered together. Schrenker v. Clifford, (1979) Ind., 387 N.E.2d 59; Connell v. Logansport, (1979) Ind.App., 397 N.E.2d 1058. The obscene material statute provides that:
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