McNeal v. State, 3-1081A247
| Decision Date | 26 April 1982 |
| Docket Number | No. 3-1081A247,3-1081A247 |
| Citation | 434 N.E.2d 127 |
| Parties | Michael D. McNEAL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
K. Richard Payne, Fort Wayne, for appellant.
Linley E. Pearson, Atty. Gen., William E. Daily, Deputy Atty. Gen., Indianapolis, for appellee.
Michael McNeal appeals his convictions on two counts of distributing obscene matter for consideration in violation of IC 1971, 35-30-10.1-2(2) (Burns 1979 Repl.). Issues raised are:
(1) whether the materials distributed are protected under the First and Fourteenth Amendments to the United States Constitution; and
(2) whether the evidence is sufficient to show that McNeal had actual knowledge of the nature of the materials he was selling. 1
McNeal has requested this Court to view the material involved in order to make an independent judgment regarding its obscenity. The magazine and movie at issue however were not included in the record of proceedings. In its brief, the State contends that the failure to include the exhibits in the record constitutes a mandatory waiver of the issues.
The State is directed to Ind.Rules of Procedure, Appellate Rule 7.2(B) and (C). The 1981 rules provided in pertinent part:
(1) either before or after the record is transmitted to the court on appeal, or
(2) upon the order of the court of appeal pursuant to a properly filed petition for certiorari, correct the omission or misstatement and if necessary certify and transmit a supplemental record." (Emphasis added.)
The absence of exhibits in the record does not result in the automatic waiver of an issue. Additionally, effective January 1, 1982 Appellate Rule 7.2(C) provides in pertinent part:
"(C) Correction or Modification of the Record. If, on appeal, any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by the trial court and the record made to conform to the truth. If anything material to either party is omitted from the record or is misstated therein, the trial court shall
(1) either before or after the record is transmitted to the court on appeal, or
(2) upon the order of the court of appeal pursuant (to) the motion of a party or on its own initiative correct the omission or misstatement and if necessary certify and transmit a supplemental record. Incompleteness or inadequacy of the record shall not constitute a ground for dismissal of the appeal or preclude review on the merits." (Emphasis added.)
A writ of certiorari for the exhibits was issued in this case. After the writ was issued, the State filed a petition to withdraw the record and an application for leave to amend its brief because it had failed to address the merits of McNeal's argument.
McNeal initially contends that the material at issue is protected under the First and Fourteenth Amendments to the United States Constitution. The materials have been viewed by this Court. They are very similar in nature and content to materials found to be unprotected by the First and Fourteenth Amendments in Sedelbauer v. State (1981), Ind., 428 N.E.2d 206 cert. denied --- U.S. ----, 102 S.Ct. ----, 71 L.Ed.2d --- (filed March 22, 1982). Under the reasoning of Sedelbauer the magazine and film at issue in this case are also obscene and unprotected.
McNeal next contends that the evidence is insufficient to establish that he had actual knowledge of the materials he was selling. Again, a similar issue was raised in Sedelbauer v. State, supra. There the Supreme Court stated:
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