Porter v. State

• Citation: 440 N.E.2d 690
• Decision Date: 05 October 1982
• Docket Number: No. 1-182A18,1-182A18
• Parties: James E. PORTER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 690

440 N.E.2d 690

James E. PORTER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-182A18.

Court of Appeals of Indiana First District.

Oct. 5, 1982.

Richard R. Donnelly, Columbus, H. Louis Sirkin, Cincinnati, for defendant-appellant.

Linley E. Pearson, Atty. Gen., William E. Daily, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Presiding Judge.

STATEMENT OF THE CASE

Appellant James Porter appeals from his conviction by jury trial in the Bartholomew County Court for distributing obscene material. Affirmed in part, reversed in part, and remanded for modification.

FACTS

Appellant Porter rented a commercial property ostensibly for the purpose of selling video tape machines and cameras. Defendant himself did not tend the premises,

but rather employed Zach Winfield as a sales clerk. After receiving complaints concerning the business, Detectives Myers and Clark of the Columbus Police Department entered the store and purchased sexually explicit material in the form of magazines and video tapes. Porter was convicted of four (4) counts of distributing obscene material and this appeal followed.

ISSUES

Porter raises four issues on appeal.

1. Did the trial court err in denying defendant's motion to dismiss where defendant alleged that the statute under which he had been charged was unconstitutionally vague and overbroad?

2. Did the trial court err in denying defendant's motions for mistrial based upon alleged prosecutorial misconduct during closing arguments?

3. Did the trial court err in sentencing Porter on four counts of distributing obscene material?

4. Was there sufficient evidence to sustain the verdict of the jury?

DISCUSSION AND DECISION

Issue One

The trial court did not err in denying defendant's motion to dismiss.

Appellant first assails the Indiana obscenity statute ¹ as vague for its failure to adequately define the type of activity which will subject a seller to criminal liability. Appellant specifically alleges that certain terms in the definitional section of the statute ² are unclear as to the type of conduct intended to be included within the purview of the statute. Since the prohibited activity cannot be clearly delineated, the appellant argues that the statute must fail as being unconstitutionally vague. We cannot agree.

It is clearly established that a criminal statute will be deemed void for vagueness only if it fails to inform persons of ordinary intelligence what their conduct must be in order to subject them to criminal liability. Broadrick v. Oklahoma, (1973) 413 U.S. 601, 607, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830; Grayned v. City of Rockford, (1972) 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222; Ford v. State, (1979) Ind.App. 394 N.E.2d 250, 253, trans. denied (1980). In Miller v. California, (1973) 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, the Supreme Court of the United States laid out the standards by which works which depict or describe sexual conduct are to be judged. The Court noted that

"[t]he 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; (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."

Id. at 24, 93 S.Ct. at 2615 (citations omitted). This is substantially the language adopted by our legislature to determine whether a matter or performance is obscene. Indiana Code Section 35-30-10.1-1(c) (Supp.1981) states that

"(c) A matter or performance is 'obscene' 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 of performance, taken as a whole, lacks serious literary, artistic, political, or scientific value."

Subsections (a), (b), (d), and (e) define certain terms used within our legislature's definition of what is to be considered obscene. ³ This is further supplemented by other sections of the Code which define such terms as deviate sexual conduct. ⁴ The definitions used by the legislature are unequivocally clear and would not confuse a person of ordinary intelligence as to what type of conduct is prohibited by the statute. The statute is not unconstitutionally vague and the trial court did not thereby err in denying appellant's motion to dismiss.

Appellant also argues that the statute is unconstitutionally overbroad. Overbreadth involves a challenge to the statute based not upon the defendant's conduct, but rather upon legitimate conduct which might foreseeably be prohibited by a statute which is not drawn in sufficiently narrow terms. Appellant contends that "[i]n given situations the Indiana Statue [sic] could punish the sale of a dressed or undressed female holding her breast, or two women or men holding hands, either dressed or undressed, or depending upon the definition of 'sexual intercourse', of a man and woman hugging each other. Therefore, said statute is overbroad and unconstitutional." Appellant's Brief at 10. Appellant's argument revolves around the definition of sexual conduct contained in Indiana Code Section 35-30-10.1-1(d). ⁵ A cursory examination of that subsection is enough to dispose of appellant's contention. Sexual conduct is clearly limited therein. Appellant's hypotheticals could not reasonably fall within the purview of the statute. The statute is not unconstitutionally overbroad.

Issue Two

The trial court did not err in denying defendant's motion for mistrial.

Appellant contends that certain comments by the prosecutor during closing arguments constituted misconduct and gave rise to reversible error for the trial court's failure to grant a mistrial. During the closing arguments the following exchange took place.

"Uh another thing interestingly enough in terms of what you may or may not be able to send away for out of certain magazines sold at, I think, they sell Playboy and Penthouse, some of those magazines at not only Cummins Book Store but the 7-11 and several other places around. You can send away for that stuff but they sure didn't tell you about the Federal Mail Fraud prosecutions pending. They didn't tell you about the Federal Justice Department investigations on a national basis about dealing with that sort of thing.

H. Louis Sirkin: Objection.

Joseph Koening: Your Honor, I am dealing with rebuttal and he referred to that in his argument.

H. Louis Sirkin: I referred to it but I didn't say whether there was or was not. He is assuming facts that were not presented to this Jury.

Judge: That's true.

Joseph Koenig: I am referring to inferring to an obvious gap in his presentation.

H. Louis Sirkin: I don't think, you have basis on the evidence.

Judge: Yeah, there is no evidence one way or the other. Just have to, I am going to sustain the objection. Just keep away from that. Again Ladies and Gentlemen you need to be admonished that the last comment with respect to the lack or fact there are prosecutions with respect to mail fraud is to be, not to be considered by you. Go ahead Mr. Koenig."

Record at 32-180-181. Appellant asserts that this "obviously" gave rise to grave peril and "had obvious persuasive affect [sic] upon the jury." Appellant's Brief at 12. However, defendant has failed to demonstrate any prejudice arising from the comments of the prosecutor. We further note that the trial court sustained the defendant's objection and on its own motion admonished the jury to disregard the prosecutor's remarks. ⁶ Generally, an admonition is presumed sufficient to cure any error that may have occurred. Page v. State, (1980) Ind., 410 N.E.2d 1304, 1307. It is also within the discretion of the trial court to admonish the jury or to grant a motion for mistrial. Griffin v. State, (1980) Ind., 402 N.E.2d 981, 985. This court will not reverse the decision of the trial court absent a showing of an abuse of that discretion. Id. In the instant case the court sustained the defendant's objection and then admonished the jury to disregard the improper comments. There was no abuse of discretion. The court did not err in denying defendant's subsequent motion for mistrial.

Issue Three

The trial court erred in sentencing Porter on four counts.

Appellant was convicted of four counts of distributing obscene material. He was sentenced to four concurrent thirty-day terms and fined $2500.00 on each count. Defendant contends it was error to sentence on four counts. He further argues that he could be sentenced only upon one count. While we agree that Porter could not be sentenced on four counts, we do not believe that he could be sentenced only upon one count.

Defendant was charged with knowingly or intentionally distributing obscene material. Indiana Code Section 35-30-10.1-1(g) defines "distribute" as a "transfer [of] possession for a consideration," what is commonly referred to as a sale. The proscribed activity, therefore, is the sale of obscene material. As our supreme court has previously noted, a person may not be twice punished for a single offense arising from one set of operative facts. Bean v. State (1978) 267 Ind. 528, 533, 371 N.E.2d 713, 716; Thompson v. State, (1972) 259 Ind. 587, 592, 290 N.E.2d 724, 727, cert. denied, 412 U.S. 943, 93 S.Ct. 2788, 37 L.Ed.2d 404. Here the operative fact from which the offense arose was the sale of obscene material. The sale was the transaction which may be charged. In the instant case there were two sales. Detective Clark purchased two magazines and Detective Myers purchased two films. As such, the defendant could be charged with only two counts of...