State ex rel. Pizza v. Strope

• Decision Date: 26 September 1990
• Docket Number: Nos. 89-763,89-765,s. 89-763
• Citation: 560 N.E.2d 765,54 Ohio St.3d 41
• Parties: THE STATE, ex rel. PIZZA, Prosecuting Attorney, Appellee, v. STROPE et al., Appellants.
• Court: Ohio Supreme Court

Page 41

54 Ohio St.3d 41

560 N.E.2d 765

THE STATE, ex rel. PIZZA, Prosecuting Attorney, Appellee, v. STROPE et al., Appellants.

Nos. 89-763, 89-765.

Supreme Court of Ohio.

Submitted April 10, 1990.

Decided Sept. 26, 1990.

Syllabus by the Court

1. Inasmuch as the purpose of de novo appellate review of materials found to be obscene is to protect the interests which underlie the First Amendment to the United States Constitution, such review is applicable only where there has been a prior determination that the materials at issue are, in fact, obscene.

2. Where a court of law has made a factual determination that materials are not obscene when measured by the standards contained in R.C. 2907.01(F), Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, and Urbana, ex rel. Newlin, v. Downing (1989), 43 Ohio St.3d 109, 539 N.E.2d 140, and that, consequently, the sale thereof neither violates R.C. 2907.32(A)(2) nor is subject to injunction pursuant to R.C. 3767.02 and 2907.37(B), the decision of the court will not be reversed unless the determination upon which it is founded is against the manifest weight of the evidence. (Seasons Coal Co. v. Cleveland [1984], 10 Ohio St.3d 77, 10 OBR 408, 461 N.E.2d 1273, approved and followed.)

Appellants are owners, operators and/or lessors of eleven retail bookstores located in Lucas County, Ohio. Between July 25, 1986 and October 6, 1986, the bookstores were visited by undercover members of the Toledo Police Department, who purchased one hundred twenty-six magazines.

On November 12, 1986, appellee Anthony G. Pizza, in his capacity as Lucas County Prosecuting Attorney, instituted the present actions pursuant to R.C. 3767.01 et seq. seeking a determination that the premises upon which the materials were sold constituted a nuisance and an injunction to abate their continued operation. On November 20, 1986, a motion to consolidate the eleven actions was granted.

On June 22, 1987, a bench trial commenced in the Lucas County Court of Common Pleas. In its case in chief, the state introduced evidence relating to the ownership of the businesses and the physical appearance of the bookstores. The magazines in question and stipulations acknowledging their purchase by Toledo police officers were also admitted.

Appellants presented the testimony of Dr. Elizabeth Allgeier, a professor at Bowling Green State University who received her doctorate degree in social psychology. Dr. Allgeier is an expert in the field of human sexuality and has authored a textbook and several articles on the subject. Her involvement in the field has included lectures to medical students at the University of Toledo and discussions with community groups on the topic. She had been familiar with and involved in the Lucas County community for approximately seven years, while a resident of adjacent Wood County.

Prior to her testimony, Dr. Allgeier had reviewed the materials at issue. Based on this review, her expertise in the field and her knowledge of the Lucas County community, Dr. Allgeier concluded that the reaction of the average member thereof to the materials in question would include curiosity, arousal, disinterest, perplexity, edification and amusement. It was the further conclusion of Dr. Allgeier that these responses constituted normal and healthy reactions to the materials. She did not believe that these reactions indicated a shameful or morbid interest in sex.

Also testifying for appellants was Dr. Joseph Scott. Dr. Scott is a professor of sociology who teaches sociology, criminology and criminal justice at the Ohio State University. He has conducted research in sexual behavior and is the author of numerous articles on the subject. In 1986, Dr. Scott conducted a random scientific survey regarding the sexual attitudes of the residents of Lucas County. The survey results indicated a widespread acceptance of and tolerance for sexually oriented materials. Over eighty-eight percent of the respondents indicated that such materials were accepted in Lucas County and over ninety-two percent of the respondents concluded that there was tolerance for such materials. Moreover, nearly seventy-five percent of the respondents concluded that they should not be denied access to literature of this nature.

On rebuttal, the state elicited the testimony of Dr. Edward Pike, a pediatric physician specializing in eating disorders. Dr. Pike possessed no formal training in the field of human sexuality. Although Dr. Pike, in the course of his medical practice, did not encounter patients expressing a familiarity with or a reaction to sexually explicit materials, he nevertheless expressed his opinion that the magazines appealed to the prurient interest. This view was expressed despite his reluctance to express an opinion regarding what the reaction to such materials by an "average person" would be.

The state also presented the testimony of Dr. James King, a professor of sociology at the University of Toledo. During direct examination, Dr. King was generally critical of the methodology employed by Dr. Scott in conducting his survey. However, Dr. King conceded on cross-examination that his earlier criticisms did not take into account certain safeguards employed by Dr. Scott to ensure the statistical accuracy of the survey. Moreover, Dr. King acknowledged that, in the past, he had employed a similar method in reporting analogous research.

Following trial, the common pleas court denied the request for injunctive relief, concluding that the state had failed to prove that appellants had committed repeated violations of R.C. 2907.32. The trial court further determined that the state had failed to prove scienter on the part of certain appellants as required by R.C. 2907.37 and 2907.32. Finally, after considering all the evidence, the trial court concluded that the state had failed to demonstrate that the materials at issue were obscene.

On February 5, 1988, appellee appealed the trial court's determination to the court of appeals. On March 10, 1989, the court of appeals reversed in virtually all respects. ¹

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Anthony G. Pizza, Pros. Atty., and Steven J. Papadimos, for appellee.

Jay E. Feldstein, Toledo and Jack Gallon, Dayton, for appellants Lee Strope and Abraham Geha.

Cooper, Straub, Walinski & Cramer and John Czarnecki, Toledo, for appellants Richard Kaplan, Joel Kaminski, Gary Licata, Andrea Licata, Woodville News, Inc., Donald Wiener, Arthur Davis, Junerose Davis, Sam Paget and E.G.L., Inc.

Stanley Yoder, Defiance, for appellants William Bigelow and Richard Bigelow.

Sheldon Wittenberg, Toledo, for appellant Modern Cinema.

Eugene Canestraro, Toledo, for appellant Florence Audrey Grayczyk, sub nom. Florence Audrey Mohr.

Berkman, Gordon, Murray & Palda, J. Michael Murray, Lorraine R. Baumgardner and Ann N. Butenhof, Cleveland, for appellants Richard Kaplan, Joel Kaminski, Woodville News, Inc. and E.G.L., Inc.

Joseph Siegel, Toledo, for appellant Estate of Mohamed Cheikn and Lillian Cheikn.

Lorin Zaner, Toledo, for appellant Ross Properties.

Richard Szczepaniak, Toledo, for appellants Joyce Ehrmin and Estate of Stanley Ehrmin.

Daniel T. Kobil, American Civ. Liberties Union of Ohio Foundation, Inc. and Elinor Alger, Columbus, urging reversal for amicus curiae, American Civ. Liberties Union of Ohio Foundation, Inc.

Arthur M. Ney, Jr., Pros. Atty. and William E. Breyer, Cincinnati, urging affirmance for amicus curiae, Ohio Pros. Attys. Ass'n.

SWEENEY, Justice.

The present action was instituted by appellee pursuant to R.C. 3767.02. This section provides:

"Any person, who uses, occupies, establishes, or conducts a nuisance, or aids or abets therein, and the owner, agent, or lessee of any interest in any such nuisance together with the persons employed in or in control of any such nuisance by any such owner, agent, or lessee is guilty of maintaining a nuisance and shall be enjoined as provided in sections 3767.03 to 3767.06, inclusive, of the Revised Code."

"Nuisance" is defined in R.C. 3767.01(C) as follows:

"(C) 'Nuisance' means that which is defined and declared by statutes to be such and also means any place in or upon which lewdness, assignation, or prostitution is conducted, permitted, continued, or exists, or any place, in or upon which lewd, indecent, lascivious, or obscene films or plate negatives, film or plate positives, films designed to be projected on a screen for exhibition films, or glass slides either in negative or positive form designed for exhibition by projection on a screen are photographed, manufactured, developed, screened, exhibited, or otherwise prepared or shown, and the personal property and contents used in conducting and maintaining any such place for any such purpose. This chapter shall not affect any newspaper, magazine, or other publication entered as second class matter by the post-office department." (Emphasis added.)

R.C. 2907.37(B) brings commercial establishments engaged in certain activities within the purview of R.C. 3767.02. It provides:

"Premises used or occupied for repeated violations of section 2907.31 or 2907.32 of the Revised Code constitute a nuisance subject to abatement pursuant to sections 3767.01 to 3767.99 of the Revised Code."

R.C. 2907.32(A)(2) provides:

"(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:

" * * *

"(2) Exhibit or advertise for sale or dissemination, or sell or publicly disseminate or display any obscene material[.]"

While "obscenity" is defined in R.C. 2907.01(F), this court, in State v. Burgun (1978), 56 Ohio St.2d 354, 10 O.O.3d 485, 384 N.E.2d 255, observed that its scope is circumscribed by the protections embodied in the First Amendment to the United States Constitution and, specifically, the three-part test for obscenity announced in Miller v....