Saliba v. State

• Decision Date: 28 March 1985
• Docket Number: No. 2-383A74,2-383A74
• Parties: George SALIBA, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1181

475 N.E.2d 1181

George SALIBA, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-383A74.

Court of Appeals of Indiana Second District.

March 28, 1985.

Richard Kammen, Indianapolis, for appellant.

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

SHIELDS, Judge.

Defendant George Saliba (Saliba) appeals his conviction for distribution of obscene matter, a class A misdemeanor under I.C. 35-30-10.1-2-(2) (Burns Code Ed., 1979) recodified at I.C. 35-49-3-1 (Burns Code Ed., Supp.1984). ¹ The only issue we address is Reversed.

whether the trial court erred in excluding the results of a public opinion poll ² on the issue of community standards.

FACTS

Saliba was charged with exhibiting an obscene film in his adult book store in Indianapolis on November 12, 1981. The film which formed the basis for Saliba's conviction depicted three males involved in various homosexual activities. Prior to trial, Saliba employed Dr. Roderick Bell of California to conduct a public opinion poll to determine community standards in Marion County regarding the depiction of sexual activities in movies and publications. At trial and out of the jury's presence, Saliba offered into evidence the results of the poll designed by Dr. Bell. In support of the offer, Dr. Bell testified to his qualifications ³ and explained the general nature of public opinion polls. Dr. Bell then extensively discussed the scientific methodology generally employed in conducting polls and detailed the specific techniques employed in conducting the poll at issue. Based on the design, execution, tabulation and verification of the instant poll, Dr. Bell opined that the poll was a valid measure of the degree of public acceptance of sexually explicit materials in Marion County.

The State objected to the poll's validity and presented the expert testimony of Dr. Brian Vargus. Following Dr. Vargus' examination of the poll during a lunch break on the day of trial, he opined the manner in which the poll was conducted potentially generated 30% "pseudo-opinion". However, Dr. Vargus also testified his opinion depended on whether Dr. Bell had conducted a proper "pretest" and other methodological checks.

After the State renewed its objection to the admission of the poll, the trial judge ruled the poll inadmissible. Saliba then recalled Dr. Bell who testified a pretest was indeed conducted and characterized Dr. Vargus' testimony as merely presenting a methodological dispute between experts. In fact, Dr. Bell testified if the methodology suggested by Dr. Vargus had been used, the results of the poll would have been biased in Saliba's favor. The poll was again offered into evidence but again excluded by the trial court.

DISCUSSION

The State had the burden of proving the film confiscated from Saliba's store was "obscene" as defined by statute. I.C. 35-30-10.1-1 (Burns Code Ed., 1979) recodified at I.C. 35-49-2-1 (Burns Code Ed., Supp.1984) provides, in pertinent part,

"A matter or performance is obscene for purposes of this article 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;" ⁴

The determination of obscenity, therefore, depends upon prevailing community standards.

Survey Evidence in Obscenity Prosecutions

As the State contends, the obscene character of materials may be determined by the jury based on a viewing of the allegedly offensive material. The State need not present an expert witness or other evidence of community standards. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Sedelbauer v. State, 455 N.E.2d 1159 (Ind.App.1983).

However, expert evidence on this issue may be highly relevant. The jurors are not instructed to evaluate obscenity based on their personal opinions but are charged with applying contemporary community standards. Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973). In the absence of expert testimony, the jury's determination of contemporary community standards runs the risk of incorporating the individual juror's "necessarily limited, hit-or-miss subjective view" "on the basis of his personal upbringing or restricted reflection or particular experience of life." Smith v. California, 361 U.S. 147, 165, 80 S.Ct. 215, 225, 4 L.Ed.2d 205 (1959) (Frankfurter, J., concurring). Consequently, the defendant in an obscenity prosecution is entitled to introduce relevant and appropriate expert testimony on the issue of contemporary community standards. Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492.

Expert testimony based on a public opinion poll is uniquely suited to a determination of community standards. Perhaps no other form of evidence is more helpful or concise: "A properly conducted public opinion survey itself adequately ensures a good measure of trustworthiness, and its admission may be necessary in the sense that no other evidence would be as good as the survey evidence or perhaps even obtainable as a practical matter." Commonwealth v. Trainor, 374 Mass. 796, 374 N.E.2d 1216, 1221 (1978).

The alternative modes of introducing such evidence are less desirable Zippo Manufacturing Co. v. Rogers Imports, Inc., 216 F.Supp. 670 (S.D.N.Y.1963) (leading case on survey evidence). For example, the presentation of in-court testimony from the entire target population or even a representative sample is patently impractical. And the use of an expert witness to testify regarding his or her opinion on community standards is not as direct or accurate as a public poll, even assuming an expert could qualify on the subject. E.g. Sedelbauer v. State, 455 N.E.2d at 1165 (held sex therapist unqualified to testify on county standards). The nature of public opinion polls renders them better suited to demonstrate contemporary community standards.

Admissibility of Survey Evidence

In the instant case, the State objected to the admission of the public opinion poll both on the grounds of relevancy and trustworthiness. Specifically, the State argued the poll's focus on overall community standards did not determine whether the film in question was obscene. Alternatively, the State argued the poll was improperly conducted and therefore unreliable. We will address each contention in turn.

A. Relevancy

At trial, the State argued the degree of community acceptance of "sexually explicit materials" was not relevant to a determination of whether the particular film in question was obscene. However, on appeal, the State argues irrelevancy based upon another theory. On appeal, the State cites two cases from sister states which found allegedly similar surveys irrelevant because those surveys only examined whether the community sanctioned the dissemination of sexually explicit materials to willing adults (i.e., community standards); the surveys did not examine whether the community regarded similar materials or the particular materials in issue as obscene. See Flynt v. State, 153 Ga.App. 232, 264 S.E.2d 669, cert. denied 449 U.S. 888, 101 S.Ct. 245, 66 L.Ed.2d 114 (1980); Commonwealth v. Mascolo, 7 Mass.App. 275, 386 N.E.2d 1311 (1979). We address both of the State's arguments of irrelevancy, that at trial and that on appeal, because of our obligation to affirm the trial court's action in excluding the poll if its exclusion was proper on any basis. Fendley v. Ford, 458 N.E.2d 1167 (Ind.App.1984).

Our probe into relevance is therefore two-pronged. Were the questions in the poll relevant to a determination of 1) community standards in general and 2) the community's acceptance of viewing the particular film in question. ⁵

1. General Community Standards

We first determine whether the questions in the poll were relevant to a determination of community standards. For example, question seven asked: "Do you personally think it is acceptable or not acceptable for the average adult to see any depiction of actual or pretended sexual activities shown in movies and publications that he or she wants to?" The balance of the questions in the poll merely changed the type and location of access to such materials to movies, books, or magazines and theaters, bookstores, or arcades. The poll therefore questioned the interviewees regarding their view of community acceptance of sexually explicit materials rather than their personal acceptance of such materials.

We must emphasize the majority of the community need not desire to view sexually explicit materials in order to establish community acceptance or tolerance of such materials. Rather, the issue concerns the population's perception of what is generally acceptable in the community considering the intended and probable recipients of the materials. Pinkus v. United States, 436 U.S. 293, 98 S.Ct. 1808, 56 L.Ed.2d 293 (1978). The questions in the poll parallel the statutorily mandated standard; matter is "obscene" if "the average person, applying contemporary community standards" finds the material as a whole appeals to the prurient interest in sex. I.C. 35-30-10.1-1 (Burns Code Ed.1979) recodified at I.C. 35-49-2-1 (Burns Code Ed., Supp.1984). The poll's results were relevant evidence of the community standards which the jury was obligated to apply.

2. Acceptance of Particular Film

We must also determine if the community acceptance of viewing "nudity and actual or pretended sexual activity", as phrased throughout the poll, is relevant to a determination of the acceptance of viewing the film in question. We also answer this inquiry in the affirmative. The poll defines "nudity and pretended or actual sexual activity" as "total male and/or female nudity, and sexual intercourse including all kinds of sexual variation." ⁶ Appendix A. The sexual activity portrayed in the instant film fell within the definition of "nudity and actual or pretended sexual...