Showcase Cinemas, Inc. v. State, 60241

• Decision Date: 27 April 1981
• Docket Number: No. 60241,60241
• Citation: 274 S.E.2d 578,156 Ga.App. 225
• Parties: SHOWCASE CINEMAS, INC. et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 578

274 S.E.2d 578

156 Ga.App. 225

SHOWCASE CINEMAS, INC. et al. v. The STATE.

No. 60241.

Court of Appeals of Georgia.

Argued July 1, 1980.

Decided Sept. 9, 1980.

Rehearing Denied Oct. 22, 1980.

Certiorari Denied Nov. 26, 1980.

Certiorari Dismissed April 27, 1981.

See 101 S.Ct. 2037.

Charles W. Boyle, Atlanta, for appellants.

Hinson McAuliffe, Sol., Leonard Rhodes, George Weaver, Asst. Sols., for appellee.

McMURRAY, Presiding Judge.

On July 24, 1979, an investigator from the office of the Solicitor General of Fulton County personally observed and viewed two full length feature films and seven preview films of coming attractions at the Cine Showcase Theater, located at 1137 Peachtree Street, N. E., Atlanta, Fulton County, Georgia, after paying a fee of $5 to enter the theater. On July 25, 1979, he deposed as to the above facts in an affidavit, including the fact that the moving picture films he had observed showed male and female humans performing actual and explicit sexual intercourse, both normal and perverted, heterosexual and homosexual (lesbianism), acts of sodomy such as cunnilingus and fellatio, rape, seduction, masturbation, both male and female, and various and sundry orgy scenes depicting rape, seduction, explicit acts of fellatio, cunnilingus and sexual intercourse involving both male and female humans. He obtained a search warrant for the seizure of the films, the same being two full length feature movies entitled "Little Orphan Dusty" and "Taxi Girls," as well as the seven preview films of coming attractions entitled "Two Sisters," "Heavenly Desire," "Candy Goes to Hollywood," "Fantasy World," "Count the Ways," "Sweet Savage," and "Babylon Pink."

A search warrant was issued, the films were then again observed after payment of the fee, and the various films were seized. By separate accusations the corporation (Showcase Cinemas, Inc.), engaged in the business of operating and owning a theater showing sexually explicit films and other entertainment for customers, as well as two other defendants (persons), were charged with the offenses of distributing obscene material, that is, in knowing the obscene nature thereof, did exhibit, did possess with intent to exhibit, cause to be exhibited and intentionally aid and abet, advise, hire, counsel and procure the exhibition to another person of the two alleged obscene feature films named above, as well as the seven alleged obscene preview films. The accusations were each in nine counts and alleged that the exhibition of said films was a commercial exploitation of erotica solely for the sake of their prurient appeal contrary to law.

Immediately prior to trial, a motion to suppress the evidence was made and denied, and a motion to dismiss, raising numerous constitutional questions, was also filed, heard, and denied. A motion to quash was then changed to a motion to merge with reference to the various counts and accusations and upon stipulation of counsel same were merged into one "copious transaction." Testimony was then offered as to the purchase of the tickets from a ticket taker by the investigator and a detective; the observation by the investigator that the two defendants (persons) were in and about the theater including the projection booth, both during the showing of the films and the seizure thereof the next day when the movies were observed for the second time prior to seizure after again purchasing an admission ticket. The witness also testified as to the advertisements on the marquee of the "Showcase Cinema," "Cine Showcase," and the showing of "Triple X-rated movies."

Counsel stipulated that the movies shown to the jury and offered in evidence after identification were the films in question. In addition, a certified copy of the articles of incorporation and certificate of incorporation for Showcase Cinemas, Inc., was offered and received in evidence as well as a copy of a complaint for declaratory relief filed in the United States District Court for the Northern District of Georgia by "Showcase Cinemas, Inc., d/b/a Cine Showcase," a Georgia corporation doing business at 1137 Peachtree Street, Atlanta, Georgia, against the officials of the City of Atlanta for a declaration of rights and injunctive relief. No objection was made to these documents with reference to the corporation although objection was made as to the relevancy of same as to the other defendants inasmuch as counsel were contending that no association had been shown between these defendants and the corporation.

The state offered in evidence as an expert witness a clinical psychologist who testified that she was familiar with the Georgia law against the distribution of obscene material and that after viewing the two feature films (not the previews) from her experience and education it was her opinion that the average adult person in Fulton County, applying the contemporary community standards of Fulton County would find these movies appealed to a shameful interest in sex and to a prurient interest. She also testified that these two motion pictures each depicted in a patently offensive way acts of sexual intercourse, masturbation and acts involving lewd exhibition of the genitals and that they each lacked serious scientific value. At the completion of the state's case, defendants moved for a directed verdict of acquittal as to the individual defendants (persons) inasmuch as the state has failed to prove scienter, that is, their knowledge of the obscene nature of the materials. This motion was denied.

The defendant corporation and one of the individual defendants did not call any witnesses. However, the other individual defendant offered in support of his defense (although it may be said that the testimony was pertinent to all the defendants) an expert witness in psychology, social theory and design and a graduate of numerous theological institutions and a teacher of sexology and sexual dysfunctioning, who likewise had observed the feature films as well as the preview films, all of which were in evidence. This witness testified that the films did not lack serious scientific value, were not frivolous, had therapeutic value, and that there was definite measurable, demonstrable help in the depiction of the sexual acts shown in these films and that they had serious scientific value in such fields as the teaching of sexology and sexual dysfunctioning.

At the completion of the trial following the charge, the jury returned a verdict against all the defendants as charged. Each of the individual defendants (persons) was sentenced to pay a fine of $4,000 and be confined for a term of 12 months, the confinement to be suspended upon payment of the fine and on condition the defendant not again violate the laws of Georgia. The corporation was sentenced to pay a fine of $5,000 to be paid in 60 days. Each of the defendants filed a motion for new trial which was amended and after a hearing, denied. Defendants appeal. Held :

1....