State v. Burgun

• Decision Date: 12 August 1976
• Citation: 49 Ohio App.2d 112,359 N.E.2d 1018
• Parties: , 3 O.O.3d 177 The STATE of Ohio, Appellee, v. BURGUN, Appellant.
• Court: Ohio Court of Appeals

Page 112

49 Ohio App.2d 112

359 N.E.2d 1018, 3 O.O.3d 177

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

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Aug. 12, 1976.

Syllabus by the Court

1. The formal criminal charge whether by an indictment, an information, or a complaint under Criminal Rule 3, must contain the constituent elements of a criminal offense. While all the specific facts relied upon to sustain the charge need not be recited, the material elements of the crime must be stated.

2. The numerical designation of the applicable criminal statute in a complaint does not cure the defect in failing to charge on all the essential elements of the crime.

3. The language of R.C. 2907.01(F), being more precise in defining what constitutes obscenity than the former section R.C. 2905.34 is constitutionally sound and complies with the Miller test. (Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; State ex rel. Sensenbrenner v. Book Store (1973), 35 Ohio St.2d 220, 301 N.E.2d 695, and, Hollington v. Ricco (1973), 40 Ohio App.2d 57, 318 N.E.2d 442, followed.)

4. In the light of the statutory purpose to prevent pandering of obscenity, no rational basis exists to justify the protection of projectionists from criminal prosecutions and leaving exposed to prosecution all other similarly situated employees. Since the amendment to the original statute contained in R.C. 2907.35(C) fails to afford equal protection to all employees working solely for wages, it is unconstitutional.

Where an amendatory exception is declared unconstitutional the original statute stands wholly unaffected by such ruling. Almeta A. Johnson, Pros. Atty., for appellee.

Berkman, Gordon & Kancelbaum and Charles M. Delbaum, Cleveland, for appellant.

JOHN V. CORRIGAN, Judge.

The appellant, Dalene Burgun, was convicted in Cleveland Municipal Court of pandering obscenity in violation of R.C. 2907.32(A)(4). She is now appealing her conviction and has assigned seven errors as a basis for her appeal.

On January 21, 1975, Detectives Bernard Jones and James Kennelly of the Cleveland Police Department went to The Gift and Book Shop at 693 East 185th Street in Cleveland. Upon entering the shop, the officers found that it was divided into two sections. The front portion of the store was devoted to the display for sale of mass circulation magazines, such as Better Homes and Gardens, Boating, Flying, etc., and miscellaneous gift items. They testified in the rear were displayed magazines of the 'male variety,' paperback books, a nude rubber female doll, and various 'sexual aids.' The magazines were encased in translucent plastic through which one could view the covers of the magazines. The magazine covers were 'given up mostly to bosomy females.' The covers of the paperback books contained pictures of 'females with the breast being the prominent focal point and the female pubic area being the prominent focal point.' The rear portion of the store also contained several coin-operated booths, into which an individual could enter and view various movies. The movies operated automatically without a projectionist. The operation of the movies was described by Detective Jones on direct examination:

'You put a quarter in a slot and this little coin container. One is marked 'A' and one marked 'B'. And, depending on which machine you put it in determines which one of these two projectors is going to play. And, it plays for twenty-five cents for about a minute and a half. And, then it shuts off. You put another quarter in and after enough quarters you have seen the entire movie.'

About midway into the store and about twenty feet from the rear portion of the store was a counter with a cash register. A person standing at the cash register could see the adult magazines in the rear of the store. On January 21, when the detectives entered the store, the appellant was working in the store behind the counter. She was the only person working in the store at that time.

While Detectives Jones and Kennelly were in the store, Detective Jones entered one of the booths in the rear of the store and viewed the entire movie contained therein. Detective Jones described the movie as follows:

'* * * It's in color. It has no sound. A male is shown sitting in a room on a couch and reading a magazine or looking at one. A female enters and very quickly she begins to perform fellatio on the male. They then disrobe and are shown engaged in sexual intercourse with the female being on her knees and hands and he being behind her. Sexual intercourse is shown in detail with a full view of the private area of both the male and female. And, ultimately the male has ejaculation.'

After Detective Jones had seen the entire movie, he and Detective Kennelly went to Cleveland Municipal Court to obtain a search warrant. Based on Detective Jones' affidavit a warrant was issued authorizing the seizure of the film which Detective Jones had viewed and also the projector which was used to show the film.

On January 22 Detectives Jones and Kennelly returned to The Gift and Book Shop to serve the warrant. The appellant was the only person in the store when the detectives arrived. Detective Jones ascertained that the movie he had seen the day before was still being shown and then the appellant was placed under arrest. The appellant gave the officers a key to the booth so they could seize the film and projector. After the detectives had obtained the film and projector, the appellant checked to see if anyone was in the rear portion of the store, locked the front door to the store, and left with the officers.

Based on the investigation of Detectives Jones and Kennelly, the appellant was charged in Cleveland Municipal Court with the crime of pandering obscenity. She demanded and received a jury trial. The jury found her guilty of the crime charged.

In appellant's first assignment of error she alleges that the trial court erred in failing to grant her pre-trial motion for dismissal. Prior to trial, the appellant moved for a dismissal on the grounds that the complaint under which she was charged failed to allege an essential element of the crime with which she was charged. The trial court denied the motion.

The appellant was charged with pandering obscenity, a violation of R.C. 2907.32(A)(4). Pandering obscenity is a misdemeanor of the first degree for a first offense. R.C. 2907.32(C). The appellant was prosecuted in the Cleveland Municipal Court by complaint. Criminal Rule 3 defines a complaint as follows:

'The complaint is a written statement of the essential facts constituting the offense charged. It shall also state the numerical designation of the applicable statute or ordinance. It shall be made upon oath before any person authorized by law to administer oaths.'

The complaint under which the appellant was charged reads, in part, as follows:

'Dalene Burgun did present or participate in presenting a certain obscene performance, to wit: 8mm movie, no title, admission price 25cents per one minute of viewing time, knowing the performance was to be presented publicly while cashier at 693 E. 185th St. in violation of R.C. 2907.32(A)-4.'

R.C. 2907.32(A)(4) reads:

'(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 statute clearly makes knowledge of the character of the material an essential element of the crime of pandering obscenity. Nowhere in the complaint, however, is the appellant charged with having knowledge of the character of the movie. The appellant contends that because this element of the crime was omitted from the complaint, the complaint is fatally defective. The state, however, contends that the complaint states the essential facts and gives the numerical designation of the applicable statute as required by Criminal Rule 3. The issue in this assignment of error then is whether or not when Criminal Rule 3 requires the complaint to state the 'essential facts' it means that at a minimum the complaint must state the 'essential elements' of the crime charged.

The Ohio Constitution guarantees to every defendant the right to know the 'nature and cause of the accusation against him.' Section 10, Article I, Constitution. The primary purpose of a charging instrument in a criminal prosecution is to inform the defendant of the nature of the offense with which he is charged. State v. Lindway (1936), 131 Ohio St. 166, 2 N.E.2d 490, cert. den. 299 U.S. 506, 57 S.Ct. 36, 81 L.Ed. 375; Holt v. State (1923), 107 Ohio St. 307, 140 N.E. 349; State v. Villagomez (1974), 44 Ohio App.2d 209, 337 N.E.2d 167; City of Toledo v. Kohlhofer (1954), 96 Ohio App. 355, 122 N.E.2d 20. In light of this purpose the law of Ohio has consistently held that an indictment or affidavit must set forth all the essential elements of the crime charged or it is invalid. The courts of Ohio have consistently adhered to this principle of law.

In State v. Oliver (1972), 32 Ohio St.2d 109, 290 N.E.2d 828, the Supreme Court held:

'An indictment need not be in the exact language of the statute (defining the offense) so long as all the essential elements of the crime are contained in language equivalent to that used in the statute * * *.'

And in State v. Cimpritz (1953), 158 Ohio St. 490, 110 N.E.2d 416, the court held:

'If any material element or ingredient of an offense, as defined by statute, is omitted from an indictment, such omission is fatal to the validity of the indictment.'

Although State v. Oliver, supra, and State v. Cimpritz, supra, dealt only with a defect in an indictment, the same rule applies to a complaint charging commission of a misdemeanor which fails to state all the essential elements of the...