State v. Jenkins, 2004 Ohio 7131 (OH 12/30/2004), Appeal No. C-040111.
| Decision Date | 30 December 2004 |
| Docket Number | Appeal No. C-040111. |
| Citation | 2004 Ohio 7131 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Shawn Jenkins, Defendant-Appellant. |
| Court | Ohio Supreme Court |
Michael K. Allen, Hamilton County Prosecuting Attorney, and James Michael Keeling, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
H. Louis Sirkin and Jennifer M. Kinsley, for Defendant-Appellant.
{¶1} The defendant-appellant, Shawn Jenkins, appeals from his conviction for one count of pandering obscenity in violation of R.C. 2907.32(A)(2), a felony of the fifth degree. Jenkins, the owner of Tip Top Video, a retail store located in the Cincinnati neighborhood of Clifton, was charged with the offense after he had sold several sexually explicit videotapes, including the videotape upon which he was indicted and convicted, Max Hardcore Extreme Volume Number Seven, to plainclothes detectives of the Hamilton County sheriff's department. After being found guilty by a jury, Jenkins was sentenced by the trial court to a two-year period of community control.
{¶2} On appeal, Jenkins challenges the constitutionality of Ohio's obscenity laws following the United States Supreme Court's decision in Lawrence v. Texas (2003), ___ U.S. ___, 123 S.Ct. 2472. In Lawrence, the Court struck down Texas's same-sex anti-sodomy law as a violation of an individual's substantive-due-process rights. Jenkins also asserts that the trial court erred in excluding from evidence two other videotapes that the detectives bought from the store, and that were presented to the grand jury but did not result in an indictment. According to Jenkins, these videotapes, Big Blacks Little Blonds and Rogue Adventures No. 6, contained graphic sexual material of the same nature as Max Hardcore Extreme Volume Number Seven, and therefore should have been admitted as comparables to aid the jury in determining community standards. Additionally, Jenkins asserts that the prosecution engaged in misconduct in its opening and closing statements; that the trial court erred in instructing the jury; and that his conviction was based upon insufficient evidence.1
{¶3} For the following reasons, we affirm.
{¶4} The essential facts of this case are those describing Max Hardcore Extreme Volume Number Seven. The videotape features Max (whose last name is Steiner, according to the arresting detective) and the actress Karla Lynn. Despite appearing in much of the videotape wearing pigtails and white anklets, Lynn appears to be well over the age of consent. Max appears on the back of the videotape's carton dressed to resemble Crocodile Dundee with a video camera. He is a gentleman of indeterminate age and bland appearance, whose heavy-handed on-screen sexual persona appears to require that he always wear a cowboy hat and usually some form of white polo shirt, cargo shorts, white socks, and hiking boots.
{¶5} The front of the carton does its best to convey the videotape's content. Max is shown in his hat, polo shirt, cargo shorts, socks, and boots, standing behind Lynn and grabbing her by a pigtail so that he can apparently enter her from behind. Lynn wears an expression of obviously feigned outrage. The front blurb reads (and here the reader must be prepared for rather graphic language),
{¶6} The back of the carton features several stills from the videotape. These stills include close-up shots of Lynn's and another actress's genitalia, as well as shots of Lynn and the other actress engaging in both oral and anal intercourse with Max. The text interspersed among the stills describes three separate vignettes. In the first, Lynn plays a "new troupe leader" who "stops over and is selling cookies so her girls can go to camp." Max
{¶7} In the second vignette, a character named Dalny is described as a woman who wants to be a "legitimate actress" and who is fooled by Max into believing "he's got a new movie deal."
{¶8} Finally, in the third vignette, Chante is described as someone who has discovered that Max has "put her in a movie" and is now coming back to his apartment "to get even." "But Max turns the tables on her and turns her into his private fuck-hole as he rips her cunt open and reams her ass."2
{¶9} Among the stills are pictures of either Lynn or the other actress with some sort of plastic device attached to her anal orifice with an elongated plastic tube extruding from the anal cavity and leading to the actress's mouth.
{¶10} The carton also contains the following notice to the customer: The carton also notes that the sale of the videotape to minors is prohibited and that the videotape is "non-violent adult entertainment." Finally, the carton indicates that the videotape is rated "XXX."
{¶11} The videotape itself is largely as described. Significantly, however, despite the carton's language of brutality, the sexual scenes are devoid of any overt physical violence. The female characters are never struck or physically threatened. Max's attitude is best described as harsh and domineering, but the conceit of the action, obviously designed for a male audience, is that the female is ultimately willing if not eager to submit to his sexual dominance and ultimately to derive pleasure from it, exhorting him verbally as he engages her sexually. That is not to say that the female characters are not treated as objects, and sometimes roughly and in demeaning fashion, but it would be specious to suggest that the action is depicted as nonconsensual or as a form of anal or vaginal rape. (Although the state's brief describes the videotape as showing the "infliction of pain on the participants" and the women being "forced to drink the fluids * * * through a straw," we do not find this characterization accurate.)
{¶12} The production values are amateurish and crude. The only set appears to be the apartment or house of someone involved in the production. The images are, at times, emotionally jarring. Anal penetration, both with Max's phallus and other objects, is shown close up and often. Bodily orifices, sometimes stretched open with a plastic device (which the prosecution has identified as a speculum), are depicted at such close range that they fill the screen, giving the viewer an unsettling perspective. At times, the camera is pointed down into the orifice. There are several scenes where the female character's face and other parts of the body are ejaculated upon. In other scenes the actress licks Max's anus.
{¶13} Perhaps the most disconcerting imagery in the videotape is that alluded to on the back of the carton. The imagery depicts Max using a speculum to stretch open the female actress's anal cavity, ejaculating into it, pouring in milk, and then inserting a length of plastic tubing. The female actress then begins sucking on the other end of the tubing and gargling the fluid out of her mouth, all the while seeming to derive gratification from the endeavor.
{¶14} As noted, Brown challenges the constitutionality of Ohio's obscenity laws following the decision of the United States Supreme Court in Lawrence, supra, which struck down a Texas statute making it a crime for two persons of the same sex to engage in intimate sexual conduct. The Court determined that the statute violated the Due Process Clause of the Fourteenth Amendment because it sought to control "a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." Id. at ___, 123 S.Ct. at 2478. Although the Court did not go so far as to announce a fundamental right to engage in consensual sodomy, the Court did find a substantive-due-process right for homosexuals to "enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons," a right that encompasses sexual behavior, including sodomy, as "one element in a personal bond that is more enduring." Id.
{¶15} As the above quotations make clear, Lawrence was foremost concerned with state efforts to punish intimate sexual behavior—what the Court described as "the most private human conduct, sexual behavior, and in the most private of places, the home." Id. Jenkins, however, argues that Lawrence should be read as the culmination of a trend in which "[t]he liberties guaranteed by substantive due process have moved out of the marital bedroom and into the public sphere of commercial interactions and private interactions between consenting adults." In this regard, Jenkins points to the dissent of Justice Scalia in Lawrence, in which the Justice decried the...
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