State v. Dute
| Decision Date | 30 May 2003 |
| Docket Number | Trial No. B-0202575(A).,Appeal No. C-020709. |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. JENNIFER DUTE, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Appeal from Hamilton County Court of Common Pleas.
Reversed and Cause Remanded.
Michael K. Allen, Prosecuting Attorney, and Anita P. Berding, Assistant Prosecuting Attorney, for Plaintiff-Appellee.
Sirkin, Pinales, Mezibov & Schwartz, LLP, H. Louis Sirkin, Jennifer M. Kinsey, and Wendy R. Calaway, for Defendant-Appellant.
{¶1} In response to complaints about defendant-appellant Jennifer Dute's website, police initiated an undercover investigation. On four separate occasions, police officers posing as customers used forms available on Dute's website to order videotapes that featured Dute engaged in various sexual acts with multiple partners. Police mailed the order forms and money orders to "Jennifer" at a post-office box in Amelia, Ohio. The videotapes were delivered through the mail to undercover officers at two "covert" addresses, 11787 Hamilton-Cleves Highway and 7699 Harrison Pike.
{¶2} Dute and her husband were charged with four counts of pandering obscenity in violation of R.C. 2907.32(A)(2), felonies of the fifth degree. Specifically, the indictment charged that the Dutes sold or delivered obscene videotapes entitled "Jennifer #2," "Jennifer #3," "Jennifer #6," and "Jennifer #7," in Hamilton County. Following a jury trial, Dute was convicted as charged. Her husband was acquitted. Dute was sentenced to one year's incarceration on each count, to be served concurrently.
{¶3} Dute's first assignment of error alleges that the trial court erred in denying her motion to introduce comparable materials. Prior to trial, Dute filed a motion to introduce comparable materials consisting of three videotapes found not to be obscene in State v. Metcalf, Hamilton C.P. No. B-0009955. The trial court denied Dute's motion and precluded her from introducing the comparable materials at trial. Defense counsel proffered the videotapes, along with the transcript of the Metcalf trial for the record on appeal. Dute's stated reason for proffering the Metcalf transcript was to show that Metcalf had been acquitted because the jury had found that the videotapes were not obscene, and not for any other reason.
{¶4} The test to determine whether material is obscene was set forth by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607: "the basic guidelines for the trier of fact must be: (1) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
{¶5} The defendant in an obscenity case must be allowed to introduce competent, relevant evidence bearing on the issues to be tried. See Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887. It is error for a trial court in an obscenity case to deny or unreasonably curtail a defendant's right to introduce into evidence competent and non-repetitive testimony or exhibits that directly relate to or bear upon the absence of any or all of the elements of the Miller obscenity test. See State ex rel. Leis v. William S. Barton Co., Inc., 45 Ohio App.2d 249, 344 N.E.2d 342; State v. Abrams (July 8, 1981), 1st Dist. No. C-800410.
{¶6} The Metcalf videotapes, having been found by a Hamilton County jury not to be obscene, arguably demonstrated contemporary community standards. A trial court may not unreasonably curtail the right of the defendant in an obscenity case to introduce competent, non-cumulative evidence bearing upon the Miller test elements, including evidence of community standards. See State v. Huss (Mar. 21, 1979), 1st Dist. No. C-780361.
{¶7} In State v. Hustler Magazine (Apr. 4, 1979), 1st Dist. No. C-77101, the trial court excluded from evidence all magazines that the defendant had offered as "comparable literature" sold in Hamilton County. We held that the "trial court abused its discretion in excluding all evidence which directly related to or had a bearing on community standards."
{¶8} We have examined the proffered materials, and we hold that the videotape entitled "Gangland 17" is sufficiently similar to the "Jennifer" videotapes to be considered a comparable material. We hold that the trial court erred in excluding the "Gangland 17" videotape from evidence because it was comparable to the "Jennifer" videotapes, and because it was relevant to the issue of community standards since it had been found not to be obscene in a prior proceeding by a Hamilton County jury. The trial court's refusal to admit the "Gangland 17" videotape denied Dute the right to introduce relevant evidence that directly related to the community-standards element of the Miller test.
{¶9} We hold that the other proffered videotapes are not sufficiently similar to the "Jennifer" videotapes to be considered comparable materials.
{¶10} Dute also alleges that the trial court erred in refusing to admit a May 2001 article from the Cincinnati Enquirer entitled "Home is Where the Porn Is." Dute argues that the newspaper article was relevant because it addressed the acceptability of adult material in Hamilton County, as well as the consumption of sexually explicit videotapes by Hamilton County residents through the mail and over the Internet. Dute proffered the article into the record.
{¶11} We have examined the article, and we hold that the trial court did not abuse its discretion in refusing to admit it into evidence. Dute failed to lay a proper foundation for the admission of the article. The trial court could have found that the article was not relevant because it did not deal with the community acceptance of the material at issue in Dute's trial, and because there was no way to determine whether the materials to which the article referred were comparable to the "Jennifer" videotapes. Further, the article contained quotes from various individuals, including Dute's counsel, who opined that he did not "think the concept of a local community standard is really valid anymore."
{¶12} The first assignment of error is sustained as to the "Gangland 17" videotape and overruled as to the other proffered videotapes and the newspaper article.
{¶13} Dute's second assignment of error alleges that the trial court erred in denying her motion for a mistrial when the jury was exposed to "prejudicial extrajudicial statements."
{¶14} Dute filed a motion in limine to prevent the prosecution from introducing evidence of a prior pandering-obscenity charge that had been brought against Dute. The record reveals that Dute had been charged with pandering obscenity in 1999. The charges against Dute individually had been dismissed when, pursuant to a plea bargain, a fictitious corporate entity, A&J Specialties, had been permitted to plead guilty. The record reveals that the trial court determined that the 1999 charge was inadmissible, apparently finding that evidence of the prior charge was irrelevant and highly prejudicial.
{¶15} On the second day of trial, various local media reported that Dute and her husband had been charged with and/or convicted of pandering obscenity pursuant to the 1999 charges. The media reports were brought to the trial court's attention. Dute's counsel submitted the articles themselves, as well as affidavits from individuals who had read the newspaper stories and had seen television news accounts.
{¶16} The jurors had previously been instructed that they were not to attempt to obtain any information about the case outside the courtroom, but they had not been instructed that they were not to view, read or listen to any media reports about the case. The trial court polled the jury to determine whether any of the jurors had seen or heard the news reports. Seven of the twelve jurors indicated that they had seen or heard the media reports. The trial court addressed the jury, (T.p. 240-241.) The court then instructed the jurors that they were not to "read, view, or listen to any report" about the case in the media.
{¶17} At a sidebar conference, Dute's counsel requested that the trial court examine the jurors individually to determine what they had read or heard concerning the case, and whether they could still be fair and impartial. In the alternative, Dute's counsel requested a mistrial. The trial court refused to conduct a voir dire of the jurors and overruled the motion for a mistrial.
{¶18} In Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, the defendant was charged with unlawfully dispensing a prescription drug resulting in misbranding. The trial court refused to allow the prosecution to introduce evidence that the defendant had previously been convicted of practicing medicine without a license. A "substantial number" of jurors read newspaper articles containing facts about the defendant's prior conviction along with other unfavorable information. The United States Supreme Court held that the defendant's conviction had to be reversed because the jury was exposed to information that the trial judge had ruled inadmissible because of its...
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