Richards v. State

• Citation: 461 N.E.2d 744
• Decision Date: 10 April 1984
• Docket Number: No. 3-883A266,3-883A266
• Parties: Ronald E. RICHARDS, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Court of Appeals of Indiana

Page 744

461 N.E.2d 744

Ronald E. RICHARDS, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-883A266.

Court of Appeals of Indiana,

Third District.

April 10, 1984.

Kenneth R. Scheibenberger, Lebamoff Law Offices, Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Judge.

On July 8, 1982, Officer Robert Schneider of the Fort Wayne Police Department visited the Cinema Blue Theatre, in Fort Wayne, Indiana. Schneider selected a videotape and approached the cashier. Appellant Ronald Richards rang up the sale and handed Schneider the video cassette "Girlfriends."

Shortly thereafter, Richards was charged with distributing obscene matter for consideration, IND.CODE Sec. 35-30-10.1-2. Following a jury trial, Richards was convicted and sentenced. Richards appeals from the judgment of conviction.

Richards first contends that "Girlfriends" represents protected expression under the First and Fourteenth Amendments to the Constitution of the United States.

IND.CODE Sec. 35-30-10.1-2 provides as follows:

"Importation, sale, or distribution of obscene materials

Sec. 2. A person who knowingly or intentionally:

(1) sends or brings into Indiana obscene matter for sale or distribution; or

(2) offers to distribute, distributes, or exhibits to another person obscene matter;

commits a Class A misdemeanor."

Materials are considered obscene when:

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 or performance, taken as a whole, lacks serious literary, artistic, political, or scientific value.

IND.CODE Sec. 35-30-10.1-1(c).

Those materials which satisfy this three-prong test for obscenity are not within the area of constitutionally protected speech or press. Ford v. State, (1979) Ind.App., 394 N.E.2d 250. See generally, Miller v. California, (1973) 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; Sedelbauer v. State, (1981) Ind., 428 N.E.2d 206, cert. denied 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153; Sedelbauer v. State, (1983) Ind.App., 455 N.E.2d 1159; Peters v. State, (1983) Ind.App., 449 N.E.2d 311; McNeal v. State, (1982) Ind.App., 434 N.E.2d 127.

The film "Girlfriends" depicts a series of lesbian encounters. Women are depicted in a graphic manner engaging in acts of masturbation and cunnilingus. At one point in the film a mechanical "vibrator" is employed to stimulate sexual arousal. The material content of this production and the manner in which it is communicated presents sexual conduct in a patently offensive way. Similar materials have been held obscene by this Court and the Supreme Court of Indiana in Sedelbauer, supra; Peters, supra; and McNeal, supra. Therefore, Richards' contention that this material is protected speech must fail.

Richards next contends that the evidence adduced at trial was insufficient to prove that he knowingly or intentionally distributed obscene matter. Before a person can be convicted of distributing obscene material, he must have knowledge of the nature and contents of the material. Peters, supra; Porter v. State, (1982) Ind.App., 440 N.E.2d 690. This requirement, referred to as scienter, may be proved by circumstantial evidence. Sedelbauer, supra; Hagood v. State, (1979) Ind.App., 395 N.E.2d 315.

In the case at bar, Officer Schneider entered the Cinema Blue Theatre, where he observed magazine racks containing about two hundred fifty magazines wrapped in plastic. The magazine covers graphically depicted "various sex acts being committed by either two females and a male or three females and one male or two females together." A glass case in the room held various sexual paraphernalia. As stated by Chief Justice Givan in Sedelbauer, supra, 428 N.E.2d at 210:

"Any adult human being who could pick up the packages, above described, and sell them to a customer in a store, as above described, would indeed be out of touch with reality if he did not know and understand the nature of the object he was selling."

The evidence supports a reasonable inference that Richards knew the nature of the material he was selling.

Richards next contends that the trial court erred in overruling his objection to the court's instruction regarding "contemporary community standards." The court instructed the jury as follows:

"Contemporary community standards are determined by what the community of Allen County, Indiana as a whole in fact finds acceptable. The community as a whole is society at large, and not particular people or particular groups. In this regard, you should consider what is going on, not necessarily what ought to be going on. What some people think the community ought or ought not to tolerate is not important, nor is what you, as an individual juror, think is good or bad. You should judge how the average adult person in this community would view this material."

Richards objected as follows:

"We would also object to paragraph 3, not numbered, Your Honor, in which the court delineates the community standards as being Allen County, and again, we're talking about as a whole finds acceptable and we feel it is inappropriate to limit the county, Allen County, when we're living in a pluralistic society in the State of Indiana and the statute is what is involved, and so, Your Honor, we would object the failure of the court to enlarge the geographical area."

Richards now contends that the trial court should have given his proposed instruction requiring that jurors apply "the contemporary community standards of the State of Indiana."

This particular issue was addressed by the United States Supreme Court in Jenkins v. Georgia, (1974) 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642. Justice Rehnquist writing for the Court stated that:

"the Constitution does not require that juries be instructed in state obscenity cases to apply the standards of a hypothetical statewide community. Miller approved the use of such instructions it did not mandate their use. What Miller makes clear is that state juries need not be instructed to apply 'national standards.' We also agree with ... the trial court's instructions directing jurors to apply 'community standards' without specifying what 'community.' Miller held that it was constitutionally permissible to permit juries to rely on the understanding of the community from which they came as to contemporary community standards, and the States have considerable latitude in framing statutes under this element of the Miller decision. A State may choose to define an obscenity offense in terms of 'contemporary community standards' as defined in Miller without further specification, as was done here, or it may choose to define the standards in more precise geographic terms, as was done by California in Miller." 418 U.S. at 157, 94 S.Ct. at 2753, 41 L.Ed.2d at 648.

As to the equal protection concern that an act could be found to be criminal in one area and not another, the case of Hamling v. United States, (1974) 418 U.S. 87, at 104-105, 94 S.Ct. 2887, at 2901, 41 L.Ed.2d 590, at 613, held that:

"[a] juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a 'reasonable' person in other areas of the law. Stone v. New York, C. & St. L.R. Co., 344 U.S. 407, 409, 73 S.Ct. 358, 359, 97 L.Ed. 441 (1953); Schulz v. Pennsylvania R. Co., 350 U.S. 523, 525-526, 76 S.Ct. 608, 609-610, 100 L.Ed. 668 (1956). Our holding in Miller that California could constitutionally proscribe obscenity in terms of a 'statewide' standard did not mean that any such precise geographic area is required as a matter of constitutional law."

The issue at bar thus becomes a question of Indiana statutory law. The Indiana statute, IND.CODE Sec. 35-30-10.1-1(c), codifies the Miller test for obscenity. See Miller, supra, at 413 U.S. 24, 93 S.Ct. 2615, 37 L.Ed.2d 431. The statute does not indicate that either a statewide or local standard shall be employed in reference to community standards. This is a general standard, not a geographic one. United States v. Cutting (9th Cir.1976) 538 F.2d 835, at 841. It does not necessitate that any geographical area be defined and employed in the formula. Hamling, supra; Cutting, supra. The purpose of the "community standards" instruction is not to distinguish attitudes in one area from those in another, but rather to distinguish personal or aberrant views from the generalized view of the community at large. An ideal instruction under the Indiana statute would refer to neither a statewide nor local region, but would require that contemporary community standards be determined by what the community as a whole in fact finds acceptable.

Thus, when an instruction has been given in terms of a local or county-wide standard, the essence of the question of prejudice is whether the instruction may have led the jury to apply some specialized test that might differ to the defendant's disadvantage from a generalized "average person, applying contemporary community standards" test.

An instruction to apply local...