Price v. Com.

Decision Date12 June 1972
Citation213 Va. 113,189 S.E.2d 324
PartiesBobby A. PRICE v. COMMONWEALTH of Virginia.
CourtVirginia Supreme Court

John W. Carter, Danville, Michael K. Curtis, Greensboro, N.C. (Norman B. Smith, Greensboro, N.C., Carter & Wilson, Danville, Smith & Patterson, Greensboro, N.C., on brief), for plaintiff in error.

Robert E. Shepherd, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on the brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN and HARMAN, JJ.

COCHRAN, Justice.

Bobby A. Price, manager of the North Theatre in Danville, was indicted for exhibiting an obscene motion picture, 'Anomalies', in violation of Va.Code Ann. § 18.1--230 (Cum.Supp.1971). 1 He was tried by a jury which found him guilty and fixed his punishment at confinement in jail for 12 months and payment of a fine of $1000. We granted Price a writ of error to the judgment entered on the verdict.

In late December and early January, 1971, the film was shown in Danville. It was advertised as X-rated (restricted to adult audiences), and a security guard was employed by the management to prevent unmarried persons under 21 years of age from entering the theatre.

After Price had been indicted, a consent order was entered enjoining the public exhibition of the film. Thereafter, the Commonwealth arranged for a number of local citizens, including members of the Mayor's Committee for Decent Literature, to view 'Anomalies' at a private showing. Sixteen of these persons testified as witnesses for the Commonwealth at Price's trial.

If 'Anomalies' is obscene it is not protected by the First Amendment to the Constitution of the United States, made applicable to the states by the Fourteenth Amendment. Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). As more recent decisions of the Supreme Court have reflected divergent opinions which failed to gain majority approval we have felt constrained to follow the definition of obscenity set forth in Roth, 354 U.S. at 489, 77 S.Ct. at 1311, 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' Roth has been reaffirmed in United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971). We have also acquiesced in the following amplification of the Roth definition set forth in a plurality opinion in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966):

'. . . (T)hree elements must coalesce: it must be established that (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.'

House v. Commonwealth, 210 Va. 121, 125, 169 S.E.2d 572, 575 (1969). See Hearn v Short, 327 F.Supp. 33, 36 (S.D.Tex.1971) (concurring opinion of Bue, J.).

Price's assignment of error to the lower court's ruling that the contemporary standard in issue was that of the local community rather than that of the national or statewide community has been resolved against him by Alexander v. Commonwealth, 212 Va. 554, 186 S.E.2d 43 (1972). There, noting that the Supreme Court had not been able to agree on a definition of the community by whose standards obscenity should be measured, we approved the local community standard.

Price has assigned error to the action of the lower court in permitting witnesses for the Commonwealth to express their personal opinions about 'Anomalies' in testifying as to local community standards. He contends that in the absence of expert testimony on the subject his motion to strike the Commonwealth's evidence was improperly overruled. We do not agree. Although many of the witnesses did state their personal opinions, which were not evidence of community standards, they also testified that they were familiar with the contemporary community standards in the locality and that 'Anomalies' was an affront to these standards and had no social value. Price's reliance on House v. Commonwealth, Supra, as requiring expert testimony, is misplaced. Evidence of contemporary community standards is required. Id., 210 Va. at 126, 169 S.E.2d at 576--577. Hence, expert testimony, if available, is admissible, but House does not require that experts be produced by the Commonwealth in order to obtain a conviction under the obscenity statute. Witnesses, whose familiarity with contemporary local community standards has been established, are qualified to testify as to such standards.

The sixteen witnesses testifying for the Commonwealth represented a limited cross-section of the Danville community. They came from different backgrounds and were citizens who had lived in Danville an average of 29 years each. To the extent that none represented morally depraved or disreputable elements of society, they did not comprise a true cross-section. They were representative of educational, religious, business, recreational and civic interests in the community. While not experts in the usual sense they were sufficiently expert to testify to the community standards in Danville. See Gent v. State, 239 Ark. 474, 393 S.W.2d 219 (1965), rev'd Per curiam sub nom Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967) (hereinafter the citation of cases reversed on the inconclusive authority of Redrup will be followed by (Redrup)); State v. Henry, 250 La. 682, 198 So.2d 889, rev'd per curiam 392 U.S. 655, 88 S.Ct. 2274, 20 L.Ed.2d 1343 (1967) (Redrup); State v. Childs, 252 Or. 91, 447 P.2d 304 (1968), cert. denied, 394 U.S. 931, 89 S.Ct. 1198, 22 L.Ed.2d 460 (1969); Robert Arthur Management Corp. v. State, 220 Tenn. 101, 414 S.W.2d 638, rev'd per curiam, Robert Arthur Management Corp. v. Tennessee ex rel. Canale, 389 U.S. 578, 88 S.Ct. 691, 19 L.Ed.2d 777 (1967) (Redrup). Moreover, by stipulation it was agreed that there were five other Commonwealth witnesses summoned, whose occupations were not listed, who, if they had been called, would have given testimony similar to that of the sixteen who testified. So we are satisfied that no reversible error was committed in permitting some of the witnesses for the Commonwealth to give their personal opinions about 'Anomalies' as well as their opinions that it violated the community standards with which they were conversant. It follows that the court properly overruled Price's motion to strike the Commonwealth's evidence as to standards.

Price contends that the lower court improperly excluded the testimony of his witness, David Flick, Director of the Danville Public Library. Flick was permitted to testify extensively, over objection, concerning the current popularity of certain books, E.g., Portnoy's Complaint, dealing with deviant sexual behavior, as indicative of an evolving standard of acceptance of sex in literature. According to Flick, the reading habits of library users in Danville had steadily changed in recent years to reflect an increasing interest in sex. This testimony was clearly relevant to a determination of contemporary community standards. See Woodruff v. State, 11 Md.App. 202, 273 A.2d 436 (1971).

Flick was not permitted to testify concerning the well attended motion picture 'Fanny Hill', which he had viewed in a local theatre, the court ruling, out of the presence of the jury, that evidence as to that film was irrelevant to a consideration of 'Anomalies'. At the same time the court incorrectly ruled in retrospect, also out of the presence of the jury, that the testimony which Flick had given concerning the books was irrelevant and inadmissible. But this testimony about the change in reading habits of library users was never stricken nor did the court direct the jury to disregard it. So the ruling of inadmissibility was ineffectual and any error with respect thereto was harmless. Furthermore, as there was no proffer of the testimony to be given by Flick concerning 'Fanny Hill', we cannot say that the lower court erred in refusing to admit such testimony, particularly in view of Flick's admission that he had not see 'Anomalies'.

Price's assignments of error relating to the court's refusal to sustain his motions to strike the Commonwealth's evidence are based upon his contention that 'Anomalies' is not obscene as a matter of law.

The Commonwealth witnesses described the film as having no plot or theme and as encouraging sexual deviation rather than normal sexual activities. They testified that 'Anomalies' depicted with implicit approval various kinds of perverted and depraved sexual conduct which violated contemporary community standards and had no social value. 2 At least two witnesses testified that the film appealed to the viewers' prurient interest. Before the Commonwealth's evidence was completed the jury was given a private showing of the motion picture.

Dr. Myron B. Liptzin, a psychiatrist at the University of North Carolina, was the only defense witness who had seen 'Anomalies'. He testified that the film had social value because it was entertaining and educational in that it would satisfy the curiosity of the audience. Dr. Liptzin admitted that 'Anomalies' would cause sexual arousal in some persons and that a 'peeping tom', viewing the film, would either masturbate during the exhibition or after the performance was over.

The jury, which heard all the evidence and also viewed 'Anomalies', found Dr. Liptzin's testimony unpersuasive.

Having approved a local community standard for determining obscenity, it follows that we would prefer to apply a 'sufficiency of the evidence' scope of review to obscenity cases, as suggested by Chief Justice Warren's dissenting opinion in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964)....

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