Sedelbauer v. State, 1181S335

• Decision Date: 30 November 1981
• Docket Number: No. 1181S335,1181S335
• Parties: Alan H. SEDELBAUER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 206

428 N.E.2d 206

Alan H. SEDELBAUER, Appellant, v. STATE of Indiana, Appellee.

No. 1181S335.

Supreme Court of Indiana.

Nov. 30, 1981.

K. Richard Payne, Fort Wayne, for appellant; Robert Eugene Smith, Atlanta, Ga., on brief.

Theodore L. Sendak, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

TRANSFER FROM COURT OF APPEALS

GIVAN, Chief Justice.

Appellant was convicted in the Superior Court, Allen County, on two counts of distributing obscene matter for consideration.

The Court of Appeals reversed his conviction. 402 N.E.2d 1006. Opinion on Rehearing, 405 N.E.2d 566. We grant transfer in this case, set aside the opinion of the Court of Appeals, and sustain the decision of the trial court.

In reversing the trial court, the Court of Appeals held that (1) Instruction No. 12, given by the trial court, which authorized the jury to consider whether the matter or performance had been pandered, was incomplete in that the jury should have been told of the United States Supreme Court's definition of the word "pandered"; and (2) the evidence in the record did not support the giving of the instruction.

Insofar as the first reason given, the Court of Appeals correctly quotes the Supreme Court of the United States in its definition of the word "pandering" to be, "the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of the customers." Pinkus v. United States, (1978) 436 U.S. 293, 303, 98 S.Ct. 1808, 1815, 56 L.Ed.2d 293, 302. However, then, without quoting or reciting any of the evidence from the record, the opinion draws the conclusion that there was no evidence produced by the State to warrant giving an instruction concerning a pandering of pornographic literature. When one examines the record in this case, it is found such conclusion is wholly erroneous. The record, in fact, is replete with information of the open advertising of an adult bookstore, a clear indication of the content thereof, and explicit graphic displays inside the store, all of which could be nothing but "the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of the customers." The building was described as having two large glass windows in the front which were painted over with some sort of a picture, with the words "Adult News and Book Store", and "Films, Peep Shows." Another sign on the outside of the building said, "Swingers World." Inside the building, there were several cases and bookshelves containing such paraphernalia as dildoes, whips, chains, and magazines, the covers of which described various types of sexual activities. We hold the evidence presented by the State in this case was more than adequate to justify the use of the word "pandered" in the court's Instruction No. 12. There was ample evidence in the record from which the jury could conclude the appellant was "in the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of the customers."

In as much as this Court is affirming the trial court, it becomes necessary to address the questions raised in the brief of the appellant which were not covered by the opinion in the Court of Appeals. Appellant requests this Court to independently review the alleged obscenity of the magazine "Desire" and of the film "Sweet Dixie" constituting the basis of appellant's conviction. In support of this request, they cite Manual Enterprises, Inc. v. Day, (1962) 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639. This we will do, although in doing so we will sustain the decision of the trial court.

In urging this Court to exercise independent review, the appellant observes that the Supreme Court of the United States has reversed convictions concerning the publication and sale of materials devoted entirely to "explicit depictions or descriptions of sexual activities, including detailed and vernacular descriptions reaching the ultimate in explicitness as to heterosexual intercourse, masturbation, bestiality, oral-genital intercourse, sadomasochism, and homosexual activity." They also note that the Supreme Court of the United States has "reversed findings of obscenity as to films which depict totally nude women, films which depict nude and partially nude men and women engaged in sexual gyrations, simulated intercourse, and simulated oral-genital contact, all emphasizing pubic and rectal areas; and films depicting lesbian activity and heterosexual activity between men and women."

There can be little question that the above described matters could not, in and of themselves, be classified as obscene. Certainly, within the definition of art, the human race has for generations depicted the naked human body in various postures calculated to be pleasing to the viewer and to possess cultural value. In the field of medicine, including publications calculated to instruct persons as to their bodily functions, it is fitting and proper to show both male and female genitals to describe the functions thereof, and to explicitly depict the function of sexual arousal and intercourse itself. We see no difference whether this is accomplished by illustrated printed matter or by film, either movie or slide. Certainly, it is the desire of most every parent to educate his child concerning his bodily functions and in the due course of time, according to the age of understanding of the child, to instruct that child concerning explicit sexual activities. It is the hope of nearly every parent that his child will grow to adulthood with a healthy libido which will enable it to enjoy sex to the fullest, to respect the dignity of his sex partner, and to be blessed with the ability to produce offspring which are both mentally and physically normal.

The First Amendment guarantees each citizen the freedom of speech and publication to accomplish these ends. This freedom, however, does not give license for the utterance or publication of any and every conceivable variation of the subject matter, if that utterance or publication impinges upon the freedom of others to enjoy life in an acceptable manner according to the standards of the community.

It is not the subject matter that is obscene in any situation, it is the manner in which the subject matter is presented that constitutes obscenity. For instance, a nude model may be presented to an art class to aid in the instruction of the students as to how to depict the nude human form. The model may be presented in a wholly acceptable manner and not be considered as lewd or obscene. However, one could take that same model and by a slight change in pose and setting transform that same person into a lewd and obscene object. The difference would be readily discernible to any member of society.

In reading the appellant's brief in its entirety, one is led to the conclusion that it is his object to have this Court make a statement that, in fact, there is no such thing as obscenity. However, we must turn to the statutes which have been passed by men and women who are in touch with the realities and standards of the communities from which they come, and to cases such as the case at bar that have been submitted to juries of men and women who are familiar with the standards of their community. It cannot be presumed that each and every one of these persons has a jaded and perverse concept of sex or the functions of the human body and that they are, in fact, in error when they perceive there is conduct which they should seek to prevent because of its objectionable nature. Again, we must presume it is not the subject itself which these people perceive to be obscene, but the manner in which the subject is presented that makes the activity obscene.

It is often heard in judicial circles, "I can't describe obscenity but I know it when I see it." However, such an observation is not adequate for our purposes here. What is it the legislator has in mind when he passes an obscenity statute? What is it the juror has in mind when he votes for a conviction of a defendant on a charge of obscenity? We must presume that these are normal people functioning in our society; enjoying the pleasures of their sexuality; reproducing, raising children whom they, in turn, hope will enjoy their own sexuality. Therefore, it cannot be the subject of the human body or of sexuality that they are perceiving to be obscene. One must presume the statutes are passed and the verdicts are rendered because of a perception of presentation of a subject which is offensive. The question then is, why is a certain presentation offensive? In the field of human bodily function, and more particularly in the function of the sexuality of the human being, most people perceive sexuality as extremely personal and private. They view their relationship with their mate as being a very pleasureful, intimate, and rewarding experience. They realize the frailties of the human body and the reproductive organs, and the tragedy that results from abuse of those parts. They recognize the physical and mental well-being of the present generation. The pleasureful urge to mate leads to reproduction, which in turn leads to an urgency to produce children who in their turn will develop into adults who can enjoy their sexuality in a healthy manner calculated to maintain the respect of their sexual mate. So long as the presentation of sexuality remains within the accepted forms of our literature and medical journals, these people do not perceive the same to be obscene but, in fact, a pleasureful, desired, and necessary part of the overall picture of a civilized society. However, when presentation takes the form of a gaudy, flippant, frivolous, or distorted attitude the observer is then offended. A thing which he holds dear and a relationship which he cherishes with another person is made to appear cheap and lustful. The process of reproduction with which he has been entrusted becomes a thing to be...