Robinson v. State, 54054
| Decision Date | 07 July 1977 |
| Docket Number | No. 54054,No. 3,54054,3 |
| Citation | 143 Ga.App. 37,237 S.E.2d 436 |
| Parties | Ernest H. ROBINSON v. The STATE |
| Court | Georgia Court of Appeals |
Nadler, Gold & Beskin, Gary M. Nadler, Donald C. Beskin, Atlanta, for appellant.
Hinson McAuliffe, Sol., Leonard W. Rhodes, Asst. Sol., Atlanta, for appellee.
Appellant appeals his conviction for a violation of the illegal sale of pornographic paraphernalia, a misdemeanor, and his sentence to confinement for 12 months. He does not raise any issue as to the sufficiency of the evidence, but restricts his enumerations of error to the denial of numerous pretrial motions, and a related charge of the court. The evidence shows that Robinson was an employee in an "adult book store" in the City of Atlanta. A police officer on the pornographic-enforcement squad entered the store, perused magazines displayed on the stands and marked with a selling price, picked one out, and attempted to purchase the magazine. Robinson recognized the officer, and refused to sell the magazine for the stated reason that to do so would subject him to arrest. The officer left the store, and a back-up officer, not known to Robinson, entered the store and picked up another magazine and started to purchase it. At that moment, the first officer reentered the store, and Robinson refused to complete the sale to the second officer. The officers observed numerous artificial devices apparently designed to stimulate human sexual organs, such as rubber penis, penis extensions, a penetratable, life-sized rubber doll and penetratable objects in the shape of a female vagina. These items were in plain view, priced, and apparently available for sale. The rubber stimulators and two magazines were confiscated, and Robinson was placed under arrest. Inasmuch as Robinson was the sole clerk in the store, and pursuant to the previous instructions of the owners or operators of the store, the store was closed and locked upon Robinson's arrest. The appellant asserts as enumerations of error that there was an illegal search and seizure; that the locking of the store was a prior restraint without a hearing; that the combining in one count of the sale or possession with intent to sell of magazines, with the items for erotic stimulation, was duplicitous and that the statute involved was violative of constitutional norms because of vagueness, overbreadth, and imperfect standards and definitions; that trial by a jury of five violated due process; as well as error in certain charges of the trial court. Held :
1. Because of the constitutional questions raised this case was transferred to the Supreme Court. That court, upon concluding that all constitutional questions raised had previously been passed upon in earlier controversies, returned the case to this court for consideration.
2. The first and fourth enumerations complain that Code Ann. § 26-2101(c) () violates constitutional norms. Georgia's obscenity statute has previously withstood the same attacks made here. The 1975 amendment to this section simply defined in more definite terms what had been previously referred to as "material," and made no substantive change so as to require a new determination as to the constitutional issues sought to be raised. There is no merit to these two enumerations. Sewell v. State, 238 Ga. 495(1), 233 S.E.2d 187 (1977).
3. Enumerations 2, 6, 7, and 8 assert that the trial judge erred in allowing the jury to consider as one offense the sale of or the possession with intent to sell the two magazines, together with the stimulative devices; in refusing to require the jury to make a separate finding as to obscenity as to each item; in giving a charge defining two offenses, yet requiring the jury to return a single verdict; and in requiring the jury to apply to the stimulative devices the standards of obscenity relative to the magazines. As all of these enumerations are related, they are subject to the same general answer. As stated by the Supreme Court in Sewell v. State, 238 Ga. 495, 233 S.E.2d 187, supra, the addition of subsection (c) to Code Ann. § 26-2101 did not create a new crime. The 1975 amendment simply defined in more concrete terms what had been referred to previously as "material," and made no substantive change in the law against distributing obscene materials. It is permissible to embrace in a single count multiple commissions of the same crime, if of the same type. Such a count does not charge separate offenses, but includes only one offense. Westfall v. State, 4 Ga.App. 834, 838(1), 62 S.E. 558 (1908); Young v. State, 4 Ga.App. 827(4), 62 S.E. 558 (1908). See Cragg v. State, 224 Ga. 196, 160 S.E.2d 817 (1968); Milhollan v. State, 221 Ga. 165, 166(2), 143 S.E.2d 730 (1965). In this case, the appellant was charged with selling or possessing with intent to sell 59 separate, obscene items. The trial court meticulously defined obscenity, the matter of intent, and the other pertinent elements of distributing obscene material. The statute provides that it is a violation to sell "any" obscene materials or to possess the same with the intent to sell. In this case, the jury could lawfully return a finding of guilty of distributing obscene material upon being convinced beyond reasonable doubt that any one of the 59 items was obscene. The jury had the benefit of its own visual observation of the evidence, the testimony of a defense expert, and its own knowledge of contemporary community standards as defined and limited by the charge of the court. We cannot say that the jury's finding that any one or all of the items were obscene, is unsupported by the evidence nor that they were required to make separate findings as to each items where a finding as to any one is sufficient to support the verdict and sentence. See Lowe v. State,57 Ga. 171(2) (1876). For the same reasons, it was not error for the trial judge to charge the jury the same standards of obscenity applied to both the magazines and the stimulative devices, inasmuch as stimulative devices and magazines are a part of the generic term "obscene material."
4. In his third enumeration of error, the appellant maintains that a five-man jury violates the concepts of ...
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