State v. Burgun

• Court: Ohio Supreme Court
• Writing for the Court: CELEBREZZE; LEACH
• Citation: State v. Burgun, 56 Ohio St.2d 354, 384 N.E.2d 255, 10 O.O.3d 485 (Ohio 1978)
• Decision Date: 07 December 1978
• Docket Number: Nos. 77-1144,77-1155 and 77-1279,77-1154,s. 77-1144
• Parties: , 10 O.O.3d 485 The STATE of Ohio, Appellee, v. BURGUN, Appellant. The STATE of Ohio, Appellee, v. BAYLESS, Appellant. The STATE of Ohio, Appellee, v. TUROSO, Appellant. The STATE of Ohio, Appellee, v. KRUTE, Appellant.

Page 354

56 Ohio St.2d 354

384 N.E.2d 255, 10 O.O.3d 485

The STATE of Ohio, Appellee, v. BURGUN, Appellant.

The STATE of Ohio, Appellee, v. BAYLESS, Appellant.

The STATE of Ohio, Appellee, v. TUROSO, Appellant.

The STATE of Ohio, Appellee, v. KRUTE, Appellant.

Nos. 77-1144, 77-1154, 77-1155 and 77-1279.

Supreme Court of Ohio.

Dec. 7, 1978.

Syllabus by the Court

1. R.C. 2907.01(F), which sets forth the definition of "obscenity," is neither unconstitutionally overbroad nor void for vagueness when it is authoritatively construed to incorporate the guidelines prescribed in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419.

2. Precise knowledge of the contents of obscene material is not a prerequisite to satisfy the requirement of scienter to sustain an obscenity conviction. Knowledge of the character or nature of obscene material is a constitutionally adequate indicium of scienter to sustain a conviction under R.C. 2907.32(A)(4).

The appeals before this court are a consolidation of four cases which originated in Cleveland Municipal Court. The facts surrounding the convictions are similar and can be summarized as follows:

In each case, detectives of the Cleveland Police Department entered adult bookstores during normal business hours where the appellants were employed as cashiers or clerks. The police officers proceeded to the rear of the premises and viewed films in booths with coin-operated projectors of the "peep show" variety.

Having viewed the films and noted their location in the store, affidavits were drawn up describing in detail the sexual activity that took place on the screen. The affidavits were presented to a Municipal Court judge who issued search warrants authorizing the seizure of both the films and the projectors. The items were seized and the appellants arrested and charged with pandering obscenity in violation of R.C. 2907.32(A)(4).

Each appellant received a jury trial in Cleveland Municipal Court. The prosecution in each case consisted primarily of the testimony of the officers who had viewed the films and subsequently completed the affidavits. In addition, each film was admitted in evidence and shown to the jury. Pre-trial motions to suppress and dismiss were overruled as were motions for acquittal filed during the course of the trials.

All four appellants were convicted under the statute for pandering obscenity.

On appeal, the Court of Appeals affirmed the judgment of the trial court in all four cases.

The causes are now before this court pursuant to the allowance of appellants' motions to certify the record.

Almeta A. Johnson, Police Prosecutor, Bertsch, Edelman & Fludine Co., L. P. A., and Bruce A. Taylor, Cleveland, for appellee.

Berkman, Gordon, Kancelbaum & Levy, Bernard A. Berkman and Joshua J. Kancelbaum, Cleveland, for appellants.

CELEBREZZE, Justice.

I.

The appellants have raised seven propositions of law. The first four propositions apply to all four appeals. Propositions No. 5 and 6 apply only to State v. Burgun, case No. 77-1144, and likewise proposition No. 7 is concerned solely with State v. Krute, case No. 77-1279.

In their first proposition of law, appellants contend that the definition of obscenity contained in R.C. 2907.01(F) and incorporated in R.C. 2907.32(A)(4) is both overbroad and vague and therefore in violation of their rights under the First and Fourteenth Amendments to the United States Constitution. The definition of "obscenity" set forth in R.C. 2907.01(F) reads as follows:

"When considered as a whole, and judged with reference to ordinary adults or, if it is designed for sexual deviates or other specially susceptible group, judged with reference to such group, any material or performance is 'obscene' if any of the following apply:

"(1) Its dominant appeal is to prurient interest;

"(2) Its dominant tendency is to arouse lust by displaying or depicting sexual activity, masturbation, sexual excitement, or nudity in a way which tends to represent human beings as mere objects of sexual appetite;

"(3) Its dominant tendency is to arouse lust by displaying or depicting bestiality or extreme or bizarre violence, cruelty, or brutality;

"(4) Its dominant tendency is to appeal to scatological interest by displaying or depicting human bodily functions of elimination in a way which inspires disgust or revulsion in persons with ordinary sensibilities, without serving any genuine scientific, educational, sociological, moral, or artistic purpose;

"(5) It contains a series of displays or descriptions of sexual activity, masturbation, sexual excitement, nudity, bestiality, extreme or bizarre violence, cruelty, or brutality, or human bodily functions of elimination, the cumulative effect of which is a dominant tendency to appeal to prurient or scatological interest, when the appeal to such interest is primarily for its own sake or for commercial exploitation, rather than primarily for a genuine scientific, educational, sociological, moral, or artistic purpose."

The definition is incorporated into R.C. 2907.32(A)(4) which formed the basis for the prosecution in the present appeals and states, in pertinent part:

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

" * * *

"(4) Advertise an obscene performance for presentation, or present or participate in presenting an obscene performance, when such performance is presented publicly, or when admission is charged * * *."

The essence of the appellants' criticism is that the definition in R.C. 2907.01(F) is overbroad "on its face" because an item can be considered "obscene" if any of the characteristics outlined in subsections (1) through (5) are present. Since the statute is written in disjunctive rather than conjunctive language, it is alleged that a conviction can be obtained without a finding that the tripartite test in Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 has been satisfied.

In that case the United States Supreme Court, at pages 24-25, 93 S.Ct. at pages 2614-2615, described the permissible scope of state regulation of obscenity and the three-pronged inquiry to be adopted by the trier of fact as follows:

" * * * As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

"The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest * * *; (b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. * * * If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary." (Citations omitted; emphasis added.)

In addition to the criticism that subsections (1) through (5) do not facially incorporate the three-part Miller test, the appellants have asserted other instances where the statute conflicts with that decision. It is argued that subsection (3) unconstitutionally restricts the depiction of extreme violence when only material depicting or describing sexual conduct may be limited as being obscene. In addition, appellants argue that subsections (1), (2), (3) and (5) are facially overbroad because acts of " 'simple nudity' " as opposed to hard core pornography can also be considered to be " 'obscene.' " Likewise, what is meant by material whose " 'dominant appeal is to prurient interest' " is cited as a further example of unconstitutional overbreadth. Finally, it is argued that the general lack of specificity found in R.C. 2907.01(F) warrants not only a finding of unconstitutional overbreadth but also a determination that the entire statute is void for vagueness.

In summary, appellants allege in effect that the statute not only has not been "limited, as written," in light of the Miller guidelines but also is incapable of a "narrowing construction " in conformity with that decision. We disagree.

The United States Supreme Court did not intend for every state legislature to rewrite its obscenity statutes as a result of the Miller decision. As indicated, an "authoritative construction" of applicable state law limiting the regulation of obscenity by the guidelines in that decision would be constitutionally sufficient.

Following that mandate this court was faced with a construction of the predecessors to the statutes under attack in the present case, R.C. 2905.34 and 2905.35, immediately following the Miller decision in State ex rel. Sensenbrenner v. Book Store (1973), 35 Ohio St.2d 220, 301 N.E.2d 695, and State ex rel. Keating v. Vixen (1973), 35 Ohio St.2d 215, 301 N.E.2d 880. ¹

In Vixen this court held, at page 219, 301 N.E.2d at page 882, that the statutory definitions "comport with the standards enunciated in Miller.'' Similar language is found in Sensenbrenner, 35 Ohio St.2d at page 221, 301 N.E.2d at page 696, where this court indicated:

"It is apparent that, if these causes were remanded to the Court of Common Pleas, the trier of the facts, given the standards expressed in Miller and the provisions of R.C. 2905.34 as guides for determining the issue of obscenity, could come...