State v. Caudill

• Decision Date: 30 July 1991
• Docket Number: No. 90AP-902,90AP-902
• Citation: 599 N.E.2d 395,75 Ohio App.3d 322
• Parties: The STATE of Ohio, Appellee, v. CAUDILL, Appellant. *
• Court: Ohio Court of Appeals

Page 322

75 Ohio App.3d 322

599 N.E.2d 395

The STATE of Ohio, Appellee, v. CAUDILL, Appellant. ^*

No. 90AP-902.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided July 30, 1991.

Ronald J. O'Brien, City Atty., Marcee C. McCreary, City Prosecutor, and Thomas K. Lindsey, Columbus, for appellee.

Eric P. Rotondo, Columbus, Klein & Shafer, P.C., and Lee J. Klein, Okemos, Mich., for appellant.

BOWMAN, Presiding Judge.

On December 8, 1989, an undercover Franklin County Sheriff's Deputy, Michael Spiert, entered the Disco Bookstore on Harrisburg Pike in Columbus and purchased a video movie entitled "Sensational Janine," which graphically depicts various sexual acts presented in the context of the experiences of an early twentieth century London prostitute. The purchase resulted in the arrest of the store clerk, appellant Roberta L. Caudill, on one count of pandering obscenity in violation of R.C. 2907.32(A)(2). Appellant was convicted after a jury trial and given a suspended jail sentence, with probation conditioned on performance of two hundred hours of community service, in addition to a fine and costs. Her sentence was stayed pending this appeal.

Appellant has appealed her conviction, setting forth the following assignments of error:

"Assignment of Error I

"The trial court erred in failing to grant appellant's motion to determine, pre-trial, the definition of 'prurient appeal' and 'patent offensiveness.'

"Assignment of Error II

"The trial court erred in excluding appellant's proffered public opinion poll and testimony relative thereto.

"Assignment of Error III

"The trial court erred (abused its discretion) by failing to exclude the highly prejudicial and non-probative testimony of Debra Seltzer.

"Assignment of Error IV

"The trial court erred in not defining contemporary community standards regarding patent offensiveness based upon a standard of what is generally 'tolerated' in the community as a whole."

R.C. 2907.32(A)(2) prohibits the sale or distribution of obscene material:

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

" * * *

"(2) Promote or advertise for sale, delivery, or dissemination; sell, deliver, publicly disseminate, publicly display, exhibit, present, rent, or provide; or offer or agree to sell, deliver, publicly disseminate, publicly display, exhibit, present, rent, or provide, any obscene material[.]"

R.C. 2907.01(F) defines "obscene" as follows:

"(F) 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 that 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 that 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 that 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 an interest is primarily for its own sake or for commercial exploitation, rather than primarily for a genuine scientific, educational, sociological, moral, or artistic purpose."

Ohio's obscenity statutes have been held constitutional when read in pari materia with Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, the United States Supreme Court case providing the test for determining obscenity. State v. Burgun (1978), 56 Ohio St.2d 354, 10 O.O.3d 485, 384 N.E.2d 255; State v. Wolfe (1987), 41 Ohio App.3d 119, 123-124, 534 N.E.2d 920, 924.

The Miller test subjects objectionable material to a three-part analysis designed to determine whether the material is obscene and, therefore, unprotected by the First Amendment to the United States Constitution. The test involves the following analysis:

" * * * (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. * * * " Miller, supra, 413 U.S. at 24, 93 S.Ct. at 2615, 37 L.Ed.2d at 431.

In Pope v. Illinois (1987), 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439, the court further elucidated the applicable standard for determining whether the work as a whole lacks serious literary, artistic, political or scientific value by finding this prong of the Miller test to be subject to a reasonable person analysis. Pope, supra, at 500-501, 107 S.Ct. at 1921, 95 L.Ed.2d at 445.

Appellant's first assignment of error asserts that the trial court erred in denying her motion to determine, pretrial, the meaning of the phrases "prurient appeal" and "patent offensiveness." Appellant did not request that the jury be instructed prior to trial but, rather, that she be provided with the definition to be used by the court in later instructing the jury. Appellant also requested the geographic boundaries of the "community." Appellant alleges the ruling served to deny her right to due process since the absence of notice as to the definitions of these terms interfered with her ability to adequately prepare and conduct her defense.

In overruling appellant's motion, the trial court stated:

"Defendant can show no legal basis or precedent for such pretrial relief. Further, it is well established (and noted by both counsel) that the legal test for obscenity in Ohio is found by incorporating the guidelines of Miller v. California (1973), 413 U.S. 15 [93 S.Ct. 2607, 37 L.Ed.2d 419] into the existing statutory scheme. State v. Burgun (1978), 56 Ohio St.2d 354 [10 O.O.3d 485, 384 N.E.2d 255]. Courts have successfully and properly applied this test without resorting to pretrial agreements on definitions. Accordingly, defendant's motion is overruled."

Crim.R. 12(B) provides that "[a]ny defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. * * * " In addition, Crim.R. 1(B) requires the rules to be " * * * construed and applied to secure the fair, impartial, speedy, and sure administration of justice, simplicity in procedure, and the elimination of unjustifiable expense and delay." However, as the trial court's entry implied, the Criminal Rules do not specifically require pretrial instructions such as those sought by appellant. Thus, the trial court's decision on this motion was discretionary. Under an abuse of discretion standard, reversible error must be predicated upon an arbitrary, unreasonable or unconscionable trial court decision. Urbana ex rel. Newlin v. Downing (1989), 43 Ohio St.3d 109, 115, 539 N.E.2d 140, 146, certiorari denied (1989), 493 U.S. 934, 110 S.Ct. 325, 107 L.Ed.2d 315, citing Steiner v. Custer (1940), 137 Ohio St. 448, 19 O.O. 148, 31 N.E.2d 855.

Appellant urges that granting the motion was essential to protection of her due process rights, since a fair trial mandated notification of all the essential elements of the charge lodged against her. A crucial component of the requirement of due process is the disclosure by the state of the elements of the charge in order that the accused may prepare a defense. E.g., State v Carter (1979), 60 Ohio St.2d 34, 14 O.O.3d 199, 396 N.E.2d 757, certiorari denied (1980), 445 U.S. 953, 100 S.Ct. 1605, 63 L.Ed.2d 789. However, "community standards" is not an element of a charge of pandering obscenity but, rather, the standard by which the trier of fact determines whether the subject item is obscene.

We additionally find that appellant has failed to sufficiently demonstrate that she was prejudiced by the actions of the court. Appellant asserts that she would have prepared specific research materials relevant to the applicable community standards had she been aware before trial of the community to be considered by the jury. However, appellant fails to indicate what this research would have entailed and to what extent she was prohibited from nevertheless preparing it and at least proffering it at trial. Moreover, appellant did proffer a survey prepared by Dr. Joseph E. Scott, professor of sociology and criminal justice at The Ohio State University, which purported to indicate the standard for what would be considered obscene by residents of Franklin County.

Appellant also alleges the denial of her motion impeded her ability to cross-examine witnesses but again fails to set forth specific instances in which knowing the scope of the "community" or the definition of specific terms would have assisted in cross-examination.

Appellant additionally argues that the court should have defined pretrial the term "prurient appeal." Under Miller and the relevant Ohio statute, "prurient appeal" has been adequately defined to give appellant pretrial notice of its meaning. We thus reject this argument.

Neither are we persuaded by appellant's examples of other Ohio trial courts which have granted identical motions for pretrial...