Orito v. State

• Decision Date: 06 June 1972
• Docket Number: No. S,S
• Citation: 55 Wis.2d 161,197 N.W.2d 763
• Parties: George Joseph ORITO, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 205.
• Court: Wisconsin Supreme Court

Page 763

197 N.W.2d 763

55 Wis.2d 161

George Joseph ORITO, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 205.

Supreme Court of Wisconsin.

June 6, 1972.

The defendant, George Joseph Orito, was arrested and charged with violation of sec. 944.21(1)(a), Stats., which prohibits the sale of obscene material. After a jury trial, the defendant was found guilty. He was sentenced to an indeterminate term of five years' imprisonment at the state prison at Waupun.

A motion to set aside the verdict and to enter a judgment of acquittal or for a new trial was denied by the trial court on November 3, 1971. Writs of error were issued to review both the judgment of conviction and the order denying defendant's post trial motions.

On August 21, 1969, a city of Milwaukee police officer purchased a magazine entitled Riviera Girls from a sales clerk at the Swingers World Adult Books bookstore, located at 222 West Wisconsin avenue in Milwaukee, which premises were leased to the defendant.

Further facts will be stated in the opinion.

Samson, Friebert, Sutton & Finerty, Robert E. Sutton, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Thomas J. Balistreri, Asst. Atty. Gen., Madison, for defendant in error.

HANLEY, Justice.

The following issues are presented on this appeal:

(1) Is the magazine constitutionally protected as a matter of law;

(2) Was the evidence sufficient to prove scienter beyond a reasonable doubt;

(3) Did the trial court err in admitting evidence concerning the nature of the premises at which the magazine was sold; and

(4) Were instructions relating to pandering proper?

Non-obscenity as a Matter of Law.

Defendant asks this court to find the magazine not obscene as a matter of law. This court has adopted the test for obscenity first enunciated in Roth v. United States (1957), 354 U.S. 476, 489, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and amplified in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Massachusetts (1966), 383 U.S. 413, 418, 86 S.Ct. 975, 16 L.Ed.2d 1. Court v. State (1971), 51 Wis.2d 683, 692, 188 N.W.2d 475. As stated in Court, at page 691, 188 N.W.2d at page 490, the following must be established in order to find a publication obscene:

"(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value."

Defendant contends that since courts in other jurisdictions have found magazines allegedly similar to the publication in the instant case to be constitutionally protected under the above test, this magazine should be held not obscene as a matter of law. This same argument was presented in the Court Case and was rejected as calling for an inappropriate yardstick. As stated in Court, at page 690, 188 N.W.2d at page 479:

'. . . The subjective nature of the material as well as the subjective conduct of the respective defendants requires an individual analysis in each case. . . .'

Since reasonable men might well differ in their conclusions as to whether or not Riviera Girls is obscene, the question became one of fact for the jury. This court will sustain the findings of the jury when they are supported by substantial credible evidence, considering the record as a whole. State v. I, A Woman--Part II (1971), 53 Wis.2d 102, 110, 191 N.W.2d 897. The record herein, containing the magazine itself and evidence as to the manner in which it was sold, clearly supports the verdict of the jury. We cannot say, as a matter of law, the material is not obscene.

Evidence as to Scienter.

Defendant contends that insufficient evidence was adduced at trial to prove the element of scienter. The United States Supreme Court has held that proof of scienter is required in cases such as this to avoid the hazards of self-censorship of constitutionally-protected material and to compensate for the ambiguities inherent in the definition of obscenity. Mishkin v. New York (1966), 383 U.S. 502, 511, 86 S.Ct. 958, 16 L.Ed.2d 56. However, the state is not required to prove that the defendant knew the publication was obscene; it need only show that defendant knew the nature of the material. Court v. State, supra, 51 Wis.2d at page 701, 188 N.W.2d 475. The circumstances surrounding the sale of an allegedly obscene book may warrant the inference that the bookseller knew of its contents. Smith v. California (1959), 361 U.S. 147, 154, 80 S.Ct. 215, 4 L.Ed.2d 205.

Although the evidence showing scienter in the instant case is primarily circumstantial, it is sufficient to support defendant's conviction. Defendant admitted being the lessee of the premises. He had been seen in the store a number of times; and on at least two occasions was seen at a nearby restaurant counting quarters he had taken from the 'peep show machines' inside his store. At one of these times he stated that 'business was good.' The windows of the store were painted so as to prevent passers-by from being able to look inside; and a number of representative magazines, with certain portions of the cover photos blocked from view, were displayed in the window. A sign limited access to the store to adults only. The magazine Riviera Girls was displayed on an open rack, as were other, apparently similar, magazines; and its cover clearly depicts the nature of the pictures on the inside pages. The price for this magazine was $3.50, which is obviously exhorbitant for the 22-page publication. We think this evidence is ample to support the jury's finding that defendant 'knowingly' possessed the magazine for sale.

Evidence as to Pandering

Defendant asserts that the trial court erred in admitting evidence relating to other publications on the premises and the manner in which they were sold. He contends that this evidence is not encompassed by the term 'pandering' as used in Ginzburg v. United States (1966), 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, rehearing denied, 384 U.S. 934, 86 S.Ct. 1440, 16 L.Ed.2d 536. We think that such evidence was properly received. The setting in which the publications are presented may be considered in determining the question of obscenity. Ginzburg, supra, at page 466. It would be unreasonable to assume that the 'pandering' discussed in Ginzburg included only active solicitation through mail or newspaper advertising. Rather,...