Pierce v. State, s. 55373

• Decision Date: 04 April 1978
• Docket Number: No. 3,Nos. 55373,s. 55373,3
• Citation: 145 Ga.App. 680,244 S.E.2d 589
• Court: Georgia Court of Appeals
• Parties: Clarence A. PIERCE, Jr. v. The STATE. Patrick X. CALLAHAN v. The STATE. Ronald D. WICKHAM v. The STATE. Carl T. RITCHIE v. The STATE. to 55376

Page 589

244 S.E.2d 589

145 Ga.App. 680

Clarence A. PIERCE, Jr. v. The STATE.

Patrick X. CALLAHAN v. The STATE.

Ronald D. WICKHAM v. The STATE.

Carl T. RITCHIE v. The STATE.

Nos. 55373 to 55376.

Court of Appeals of Georgia,Division No. 3.

April 4, 1978.

Rehearing Denied April 18, 1978.

Michael Clutter, Robert Eugene Smith, Atlanta, for appellants.

Arthur K. Bolton, Atty. Gen., Hinson McAuliffe, Sol., Leonard W. Rhodes, Richard E. Stark, Asst. Sols., Atlanta, for appellee. BANKE, Judge.

Each of the above defendants was convicted of distributing obscene materials in violation of Code Ann. § 26-2101. Each attacked the constitutionality of the statute and appealed to the Supreme Court, which rejected the constitutional attacks and transferred the appeals to this court in Pierce v. State, 239 Ga. 844, 239 S.E.2d 28 (1977) and Ritchie v. State, 240 Ga. 15, 240 S.E.2d 551 (1977). Since the appeals are before us on identical enumerations of error and almost identical briefs, we have considered them together.

1. The appellants contend that the items seized were constitutionally protected forms of expression that cannot lawfully be termed obscene. Several of the publications introduced into evidence do not accompany the physical evidence transmitted to this court. Therefore, we are unable to make an independent determination of whether they are obscene as we would ordinarily be required to do under Jenkins v. Georgia, 418 U.S. 153, 160, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974). See Dyke v. State, 232 Ga. 817, 821, 209 S.E.2d 166 (1974); Simpson v. State, 144 Ga.App. 657(3), 242 S.E.2d 265 (1978). However, none of the convictions in the cases before us was dependent upon a finding that the missing publications are obscene, since each count which charges the distribution of one of the missing publications also charges distribution of various items of sexual paraphernalia. As to these counts, "the jury could lawfully return a finding of guilty of distributing obscene material upon being convinced beyond reasonable doubt that any one of the . . . items was obscene." Robinson v. State, 143 Ga.App. 37(3), 39, 237 S.E.2d 436, 438 (1977). From our own examination of the physical evidence, it is abundantly clear that these items were "designed or marketed as useful primarily for the stimulation of human genital organs . . ." Code Ann. § 26-2101(c). Accordingly, the verdicts on these counts were authorized.

Two counts in Case No. 55376 were based solely upon publications, to wit: "Pleasure Tools and Their Uses" and "Hot Cheerleaders." We have examined both these publications and have concluded that they, too, are obscene as a matter of law; that is, applying contemporary community standards and considering each magazine as a whole, they appeal predominantly to the prurient interest, lack serious literary, artistic, political or scientific value, and depict in a patently offensive way the types of sexual conduct specifically listed in the statute. Code Ann. § 26-2101(b). Therefore, they are not protected expression under the First and Fourteenth Amendments to the United States Constitution (see Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Simpson v. State, 144 Ga.App. 657(3), 242 S.E.2d 265, supra), and the verdicts on these counts were also authorized.

2. The appellants also urge that seizure of the sexual devices without a warrant violated the constitutional prohibition against unreasonable searches and seizures. This contention is without merit. See Sewell v. State, 238 Ga. 495(2), 233 S.E.2d 187; Robinson v. State, 143 Ga.App. 37(5), 237 S.E.2d 436, supra; Wood v. State, 144 Ga.App. 236(1), 240 S.E.2d 743 (1977); Simpson v. State, 144 Ga.App. 657(2), 242 S.E.2d 265, supra; Underwood v. State, 144 Ga.App. 684(3), 242 S.E.2d 339 (1978).

3. The jury instructions on constructive knowledge did not violate constitutional standards for proof of scienter. See Sewell v. State, 238 Ga. 495(4), 233 S.E.2d 187; Wood v. State, 144 Ga.App. 236(3), 240 S.E.2d 743, supra; Simpson v. State, 144 Ga.App. 657(4), 242 S.E.2d 265, supra.

Judgment affirmed.

SMITH, J., concurs.

DEEN, P. J., concurs specially.

DEEN, Presiding Judge, concurring specially.

I fully concur with all that is said in the majority opinion. The evidence is abundant, ranging from magazines showing close up photography pornography of group sex, penis extensions, dildos with hand cranks on the end for rotation and stimulation of sex organs, plastic vaginas, rubber female faces with extra large mouth openings, and one device listed in the Manual of Erotic Sex as an anal crank. Counsel referred to the latter: "I think a lot of these devices may be more anus oriented than they are genitalia oriented." The trial judge ruled that if it is an anal device it is sexually oriented material.

The state's expert witness in the field of science was a professor at Georgia State and a clinical psychologist in private practice, relating the materials in evidence as appealing to the prurient interest within homosexuality. She testified that the latter was a personality disorder deviancy or sickness, and not a variancy. She stated: "A. There are two fields of thought. If you are along the line of the biological approach, if you know your genetics Q. And the hormones. A. you know that its quite possible for the child to be born with an XXY chromosome or XXY chromosome. It depends upon the genetic factors of the child. This is one theory. The other theory is that homosexuality is learned, that it comes from the environment, and there are good proponents on both sides."

Thus the testimony points up two differing philosophies within the parameters of the scientific community as to possible addiction or appeal of pornography to the prurient interest within homosexuality. First, that it is inherited through genetic...