Sedelbauer v. State

• Decision Date: 16 November 1983
• Docket Number: No. 3-1182A321,3-1182A321
• Citation: 455 N.E.2d 1159
• Parties: Alan H. SEDELBAUER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1159

455 N.E.2d 1159

Alan H. SEDELBAUER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Defendant Below).

No. 3-1182A321.

Court of Appeals of Indiana Third District.

Nov. 16, 1983.

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

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

HOFFMAN, Presiding Judge.

On July 15, 1982, appellant Alan Sedelbauer was convicted by a jury of distributing obscene matter for consideration. He now appeals from subsequent entry of judgment.

The record discloses that Sedelbauer worked in an adult bookstore in Fort Wayne, specializing in sexually oriented magazines, films, and paraphernalia. On June 15, 1981, Detective Charles Dennis entered the premises, and upon the recommendations of Sedelbauer, purchased a film entitled "Cruising." This film depicts male homosexuals engaged in acts of fellatio, anal intercourse, and masturbation. It does not aspire to serious literary, artistic, political, or scientific merit. This film is aimed at a market of male homosexuals. Following a viewing of the film, the jury returned a verdict of guilty.

On appeal, Sedelbauer presents the following issues:

(1) Was the evidence presented sufficient to sustain a conviction?

(2) Did the trial court have jurisdiction over this matter?

(3) Did the trial court err in refusing to read Sedelbauer's tendered instruction that the film should be judged based on its prurient appeal to the male homosexual community?

(4) Did the trial court err in allowing the appearance of a special prosecutor?

(5) Was a mistrial warranted by the destruction of a small portion of the taped voir dire proceedings?

(6) Did the trial court err in refusing to allow two of Sedelbauer's witnesses to testify?

(7) Were Sedelbauer's due process rights violated when the trial court refused to allow presentation of evidence on contemporary standards?

Sedelbauer first attacks the evidence adduced at trial as insufficient to support his conviction. The crime for which he was convicted reads 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...."

IND.CODE Sec. 35-30-10.1-2.

Furthermore, "obscene matter" as described in this statute has been statutorily defined as follows:

"Definitions

Sec. 1. As used in this chapter:

(a) 'Matter' means (i) any book, magazine, newspaper, or other printed or written material; (ii) any picture, drawing, photograph, motion picture, or other pictorial representation; (iii) any statute or other figure; (iv) any recording, transcription, or mechanical, chemical, or electrical reproduction; or (v) any other articles, equipment, machines, or materials.

(b) 'Performance' means any play, motion picture, dance, or other exhibition or presentation, whether pictured, animated, or live, performed before an audience of one (1) or more persons.

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

(d) 'Sexual conduct' means (i) sexual intercourse or deviate sexual conduct; (ii) exhibition of the uncovered genitals in the context of masturbation or other sexual activity; (iii) exhibition of the uncovered genitals of a person under sixteen (16) years of age; (iv) sado-masochistic abuse; or (v) sexual intercourse or deviate sexual conduct with an animal.

(e) 'Sado-masochistic abuse' means flagellation or torture by or upon a person as an act of sexual stimulation or gratification.

[f] [Deleted by 1978 amendment].

(g) 'Distribute' means to transfer possession for a consideration.

[h] [Deleted by 1978 amendment].

(i) 'Owner' means any person who owns or has legal right to possession of any matter."

IND.CODE Sec. 35-30-10.1-1.

This statute, and in particular subsection (c), codifies the test for obscenity set forth by the United States Supreme Court in Miller v. California, (1973) 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed .2d 419. It is entitled to every presumption of validity and constitutionality.

Sedelbauer specifically challenges whether or not the evidence produced was sufficient to prove beyond a reasonable doubt that he knowingly distributed obsence material. The film involved in this case is similar in nature and content to materials found unprotected by the First and Fourteenth Amendments in 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. ¹ As stated in Sedelbauer,

"Appellant next asks the question, 'Is evidence constitutionally sufficient to support a finding of scienter, where the defendant did not know the nature and character of the contents of the material sold?' This question by the appellant borders on the ludicrous. 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."

428 N.E.2d at 210.

As the material presented here is unprotected, and the evidence indicates that Sedelbauer worked in a store where these materials were openly displayed, the evidence is sufficient to establish scienter. See also, McNeal v. State, (1982) Ind.App., 434 N.E.2d 127.

Sedelbauer next contends that the trial court was without jurisdiction to review this matter. He asserts that the court must first determine whether material is obscene before finding a person guilty of distributing such matter. While courts have traditionally been troubled by retroactive application in obscenity determinations, this argument is unavailing under present law. Material which is obscene has been carefully defined by IND.CODE Sec. 35-30-10.1-1(c), and this definition is modeled on the test set forth by the United States Supreme Court in Miller v. California, supra. This test is specific enough to put persons on notice of what material is and is not obscene. This statute satisfies due process requirements and does not operate ex post facto in violation of Art. I, Sec. 10 of the United States Constitution. The trial court properly assumed jurisdiction over this case.

Next, Sedelbauer contends that the trial court erred in failing to read three tendered instructions. While he takes issue with the court's ruling, Sedelbauer has failed to include these instructions and his objections in the body of his brief. Ind.Rules of Procedure, Appellate Rule 8.3(A)(7) provides:

"When error is predicated on the giving or refusing of any instruction, the instruction shall be set out verbatim in the argument section of the brief with the verbatim objections, if any, made thereto. Any error alleged in the motion to correct errors not treated as herein directed shall be deemed waived."

However, for reasons stated in Davis v. State, (1976) 265 Ind. 476, 355 N.E.2d 836, this issue must be considered on its merits:

"The State argues that this Court is precluded from considering the merits of appellant's contentions because appellant failed to include in the argument section of his brief a verbatim account of his objections to the refusal of his instruction and to the giving of the court's instructions. It is true that appellant has not complied with Ind.R.Ap.P. 8.3(A)(7) in this respect. This rule was adopted by the Court 'to secure a convenient and uniform mode for presentation of issues to an appellate court,' not to allow one party to avoid the substance of the other's arguments. Hubbard v. State, (1974) 262 Ind. 176, 313 N.E.2d 346, 348. We invoke Appellate Rule 8.3 to hold an appellant's specification of error waived only when we find his non-compliance with the rule sufficiently substantial to impede our consideration of the issue raised. In this case we find that the issue of the propriety of this instruction is presented in a manner sufficiently clear to allow us to reach the substance of appellant's contention. We hope that this does not encourage any member of the Bar of this State to ignore Rule 8.3 in the future, for this Court has often applied that rule to hold an issue waived where we have found the non-compliance to be substantial or in bad faith. Frasier v. State, (1974) 262 Ind. 59, 312 N.E.2d 77; Martin v. State, (1974) 261 Ind. 492, 306 N.E.2d 93; Bonds v. State, (1972) 258 Ind. 241, 280 N.E.2d 313."

265 Ind. at 477-478, 355 N.E.2d at 838.

All three refused instructions essentially state the following: "The Court instructs the jury that where a magazine is designed for a deviant group, then prurient appeal must be measured upon its impact on the average adult member of that group."

In considering whether any error results from refusal of a tendered instruction, it must be determined:

"(1) whether the tendered instruction correctly states the law, Gayer v. State, (1965) 247 Ind. 113, 210 N.E.2d 852; (2) whether there is evidence in the record to support the giving of the instruction, Wathen v. State, (1965) 246 Ind. 245, 204 N.E.2d 526; (3) whether the substance of the tendered instruction is covered by other instructions which are given, Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d 770; New v. State, (1970) 254 Ind. 307, 259 N.E.2d 696; Cockrum v. State, (1968) 250 Ind. 366, 234 N.E.2d 479."

265 Ind. at 478, 355 N.E.2d at 838.

While Sedelbauer's tendered instructions refer to magazines rather than films, they correctly state that the prurient appeal of...