State v. Baker, 57645

• Decision Date: 24 January 1986
• Docket Number: No. 57645,57645
• Citation: 11 Kan.App.2d 4,711 P.2d 759
• Parties: STATE of Kansas, Appellee, v. Ricky B. BAKER, Appellant. . Review Denied
• Court: Kansas Court of Appeals

Page 759

711 P.2d 759

11 Kan.App.2d 4

STATE of Kansas, Appellee, v. Ricky B. BAKER, Appellant.

No. 57645.

Court of Appeals of Kansas.

Review Denied Jan. 24, 1986.

Dec. 12, 1985.

Syllabus by the Court

1. When the constitutionality of a statute is challenged, the statute comes before the court cloaked in a presumption of constitutionality. All doubts must be resolved in favor of its validity and, before a statute may be stricken down, it must clearly appear the statute violates the constitution. The burden of proof as to the validity of the statute falls on the one attacking the statute.

2. The yardstick for measuring equal protection arguments is the "reasonable basis" test set forth in McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961): "The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it."

3. The reasonable basis test employs a relatively relaxed standard reflecting the court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task.

4. K.S.A. 21-4301(4) does not violate the equal protection clause of the Fourteenth Amendment by its exclusion of movie projectionists from prosecution for promoting obscenity in most instances, while adult bookstore clerks are prosecuted. The numerous bases for the statutory distinction identified by sister states in their review of similar statutes are sufficient to uphold the statute under the "reasonable basis" test set forth in McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1218, 6 L.Ed.2d 393.

5. As a general rule, issues asserted for the first time on appeal are improper for appellate review. However, if a newly asserted issue involves only a legal question arising on proved or admitted facts which will be finally determinative of the case, or if consideration is necessary to serve the ends of justice or to prevent a denial of fundamental rights, an appellate court may consider the issue even though not considered by the trial court.

6. A statute that is vague leaves the ordinary person to guess at its meaning and as to whether any particular conduct is criminal or not. A statute which is overbroad makes conduct criminal which is constitutionally protected.

7. The definition of "obscene" in K.S.A. 21-4301(2)(a) does not violate the due process clause of the Fourteenth Amendment as being either vague or overbroad.

8. States have a legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation, as long as those regulations do not run afoul of specific constitutional prohibitions. The State's legitimate interest in the regulation of dissemination of obscenity is not limited to unwilling recipients and juveniles, but extends as well to the dissemination of obscenity between consenting adults.

9. K.S.A. 21-4301 is not an invalid exercise of police power in violation of the First and Fourteenth Amendments because the State has a legitimate interest in the dissemination of obscenity between consenting adults.

10. The prosecution of one participant in a crime, while another may go free, does not make the underlying criminal statute invalid or its application in that instance a violation of public policy.

11. The prosecution of an adult bookstore clerk pursuant to K.S.A. 21-4301, while the bookstore owner is not prosecuted, does not violate public policy and invalidate the clerk's conviction.

Patrick R. Butler, of the American Civil Liberties Union, Wichita, for appellant.

Geary N. Gorup, Asst. Dist. Atty., Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before REES, P.J., BRISCOE, J., and WILLIAM D. CLEMENT, District Judge, Assigned.

BRISCOE, Judge.

Defendant Ricky B. Baker appeals his conviction of two counts of promoting obscenity in violation of K.S.A. 21-4301. Defendant challenges the constitutionality of K.S.A. 21-4301, and also contends his prosecution violates the public policy codified by the statute.

Defendant was employed as a clerk in Plato's, an adult bookstore in Wichita, Kansas. The bookstore sells books, magazines, sexual devices, and lingerie, and has small booths for showing films. Defendant had been employed as a clerk at Plato's for only nineteen days prior to the sales which led to his arrest.

Defendant was arrested and charged after two Wichita police officers each entered Plato's, on two separate occasions, and purchased a magazine from the defendant. Prior to purchase, the magazines had been sealed in clear plastic and stapled to the wall of the store. Defendant concedes the magazines in question are obscene.

Defendant contends K.S.A. 21-4301(4) violates the equal protection clause of the Fourteenth Amendment by creating a distinction between theater projectionists and similar employees such as bookstore clerks. The statute excludes theater projectionists from prosecution for promoting obscenity in most instances.

Promoting obscenity is prohibited by K.S.A. 21-4301 and includes both the sale of obscene magazines and the showing of obscene motion pictures. Subsection (4), however, provides the following exception for theater projectionists:

"The provisions of this section and the provisions of ordinances of any city prescribing a criminal penalty for exhibit of any obscene motion picture shown in a commercial showing to the general public shall not apply to a projectionist, or assistant projectionist, if such projectionist or assistant projectionist has no financial interest in the show or in its place of presentation other than regular employment as a projectionist or assistant projectionist. The provisions of this section shall not exempt any projectionist or assistant projectionist from criminal liability for any act unrelated to projection of motion pictures in commercial showings to the general public."

When the constitutionality of a statute is challenged, the statute comes before the court cloaked in a presumption of constitutionality. State ex rel. Schneider v. Liggett, 223 Kan. 610, 616, 576 P.2d 221 (1978). All doubts must be resolved in favor of its validity and, before a statute may be stricken down, it must clearly appear the statute violates the constitution. State v. Compton, 233 Kan. 690, 697, 664 P.2d 1370 (1983), citing Leek v. Theis, 217 Kan. 784, 539 P.2d 304 (1975). The burden of proof as to the validity of the statute falls on the one attacking the statute. Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 519, 646 P.2d 1078 (1982), cert. denied 459 U.S. 1103, 103 S.Ct. 724, 74 L.Ed.2d 950 (1983).

Traditionally, the yardstick for measuring equal protection arguments has been the "reasonable basis" test. This standard was set forth in McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1104-05, 6 L.Ed.2d 393 (1961):

"The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it."

In Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491, reh. denied 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970), it was stated:

"If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.' "

A more stringent standard is applied, however, in cases involving either a suspect class or a fundamental interest. Under this standard, the burden is placed on the State to demonstrate that the classification is necessary to accomplish a compelling state interest.

In the present case, the appropriate standard for review is the "reasonable basis" test. The statutory classification does not involve a suspect class, e.g., race or alienage, nor does it interfere with any fundamental right. Obscenity is not protected by the First Amendment. Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607 2614, 37 L.Ed.2d 419 (1973). The application of the "reasonable basis" standard is consistent with those jurisdictions addressing similar statutes. See, e.g., State v. Johnson, 343 So.2d 705 (La.1977); Wheeler v. State, 281 Md. 593, 380 A.2d 1052 (1977), cert. denied 435 U.S. 997, 98 S.Ct. 1650, 56 L.Ed.2d 86 (1978); Commonwealth v. Bono, 7 Mass.App. 849, 384 N.E.2d 1260, rev. denied 377 Mass. 919 (1979); People v. Illardo, 97 Misc.2d 294, 411 N.Y.S.2d 142 (1978), aff'd 48 N.Y.2d 408, 423 N.Y.S.2d 470, 399 N.E.2d 59 (1979); State v. Burgun, 49 Ohio App.2d 112, 359 N.E.2d 1018 (1976); State v. J-R Distributors, Inc., 82 Wash.2d 584, 512 P.2d 1049 (1973).

In applying the "reasonable basis" standard, the Kansas Supreme Court has stated:

"A state statute may single out a class of persons for distinctive treatment only if the classification bears a rational relation to the purpose of the legislation and if persons similarly situated with respect to the legitimate purpose of the law receive like treatment." State v. Freeman, 223 Kan. 362, Syl. p 4, 574 P.2d 950 (1978).

The United States Supreme Court has held the "reasonable basis" test "employs a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task...." Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520 (1976).

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