State v. Lichon, 1

• Decision Date: 02 November 1989
• Docket Number: No. 1,CA-CR,1
• Citation: 163 Ariz. 186,786 P.2d 1037
• Parties: STATE of Arizona, Appellee, v. Ronald E. LICHON, Appellant. 88-158.
• Court: Arizona Court of Appeals

Page 1037

786 P.2d 1037

163 Ariz. 186

STATE of Arizona, Appellee, v. Ronald E. LICHON, Appellant.

No. 1 CA-CR 88-158.

Court of Appeals of Arizona Division 1, Department D.

Nov. 2, 1989.

As Corrected Nov. 2, Nov. 3 and Nov. 20, 1989.

Review Denied March 6, 1990.

[163 Ariz. 187] Robert K. Corbin, Atty. Gen. by Jessica G. Funkhouser, Chief Counsel, Crim. Div. and Joseph T. Maziarz, Asst. Atty. Gen., Phoenix, for appellee.

Richard J. Hertzberg, Phoenix, for appellant.

OPINION

KLEINSCHMIDT, Presiding Judge.

The defendant, Ronald E. Lichon, appeals from a conviction of one count of renting an obscene item in violation of A.R.S. section 13-3502 (Supp.1988). The trial court designated the offense a misdemeanor and placed the defendant on probation for three years. We affirm and publish this opinion to advise trial judges to instruct jurors in obscenity cases that if the jury chooses to review allegedly obscene items during deliberations, they should not do so in a piecemeal fashion. Such an admonition is meant to ensure that the items are considered as a whole, as required by statute and Supreme Court decision. We discuss this issue in more detail below when we deal with the propriety of allowing the jury access to the videotapes and a VCR player. The case presents a number of other issues.

The facts are as follows. An investigator for the Maricopa County Attorney's Office rented two videotapes entitled "Between the Cheeks" and "Black Throat" from the defendant's video store. The defendant was charged with two counts of renting obscene items and one count of possessing an obscene item with intent to rent. After a trial by jury, the defendant was convicted for renting "Between the Cheeks," but acquitted of possessing to rent and renting "Black Throat."

ISSUES RELATING TO THE STATEWIDE STANDARD FOR THE DEFINITION OF WHAT IS OBSCENE

The Arizona statute that defines obscenity states in relevant part that:

An item is obscene within the meaning of this chapter when all of the following apply:

(a) The average person, applying contemporary state standards, would find that the item, taken as a whole, appeals to the prurient interest. In order for an item as a whole to be found or intended to have an appeal to the prurient interest, it is not necessary that the item be successful in arousing or exciting any particular form of prurient interest either in the hypothetical average person, in a member of its intended and probable recipient group or in the trier of fact.

(b) The average person, applying contemporary state standards, would find that the item depicts or describes, in a patently offensive way, sexual activity as that term is described in this section.

(c) The item, taken as a whole, lacks serious literary, artistic, political or scientific value.

A.R.S. § 13-3501(2) (Supp.1988) (emphasis added).

This statute was adopted from an almost identical tripartite test set out in the United States Supreme Court decision in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). For ease of reference, we will therefore refer to the requirements laid down by our statute as the Miller test.

The defendant's first argument involves the first and second parts of the Miller test. He insists that the prosecutor improperly told the jury that in determining whether an item is obscene, they should consider the standards of their own community. At final argument, the prosecutor said

You folks are Maricopa County people. You will be allowed, and the Court will so tell you, that you can divine the standards of the state, which are shown here, applying contemporary state standards from the communities that you are most familiar with.

* * * * * *

[Defense counsel] said, 'Hey, you've got to apply state standards. That's what it says.' But I'm saying to you, because I can say it to you and he cannot object to it, because the law also says you folks don't have to reach up to Kingman and down to Douglas and over to Snowflake and say, 'Gee, I wonder what their standards are?'

The law says you folks can figure them out from your own community where you live, where you work [and] where you send your kids to school. That's your standard. It may say state but it can be Tempe, Mesa, Scottsdale, wherever you live. Apply that.

The defendant states that this is an incorrect statement of the law and constituted prosecutorial misconduct because it violated a pretrial order in limine.

That order prohibited:

Any mention of the feelings or standards of any of the neighbors or people in the vicinity. (The test is the standards of the entire State, not just one locale.)

The defendant did not preserve this issue for appeal. His counsel concedes that he did not object to the prosecutor's comments. It is generally true that an objection is not required when a motion in limine has been made, State v. Coleman, 122 Ariz. 99, 101, 593 P.2d 653, 655 (1979). In determining whether a motion in limine has preserved an issue on appeal, "[t]he essential question is whether or not the objectionable matter is brought to the attention of the trial court in a manner sufficient to advise the court that the error was not waived." State v. Briggs, 112 Ariz. 379, 382, 542 P.2d 804, 807 (1975). In this instance, the defendant's failure to object to the closing argument deprived the court of a meaningful opportunity to consider the issue he now raises. This is especially true since the motion in limine was a perfunctory one, made well before trial and accompanied by many other motions that were considered in summary fashion. The judge who tried the case was not the same judge who granted the motion in limine. Counsel may not sit back and allow error to occur when a prompt objection might have allowed the court to cure the problem. See, e.g., State v. Holder, 155 Ariz. 83, 745 P.2d 141 (1987); State v. Lujan, 136 Ariz. 326, 666 P.2d 71 (1983). Because the matter involves an allegation of prosecutorial misconduct, and because we must consider whether fundamental error occurred, we will examine the merits of the defendant's claim of error.

In addition to the order in limine, the instructions which the court gave, and did not give, also bear on the problem. The trial court gave the defendant's requested instruction number 6, which read:

In determining whether the material is patently offensive, you must determine whether it is patently offensive according to contemporary State standards.

Whether material is patently offensive according to contemporary State standards is determined by whether or not it is beyond the tolerance of the average person in the State.

In determining patent offensiveness, you must not judge by your own level of tolerance or the jury's tolerance, but rather the tolerance of the average person in the State of Arizona.

The trial court refused the State's Requested Instruction number 18, which reads:

The jury is to decide what judgment would be made by the application of adult contemporary state standards by this average person. Contemporary state standards simply provide the measure against which the jury decides the questions of appeal to prurient interest and patent offensiveness.

In deciding what conclusion the average person, applying adult contemporary state standards, would reach in these respects, the jury is entitled to draw on its own knowledge of the views and sense of the average person in the community from which they come.

The instruction was refused, as covered by the Defendant's Requested Instruction number 6, without extensive argument and without discussion of how the jury was supposed to determine the statewide standard.

Argument on the law ought to be confined to the instructions the court gives. The prosecutor was presumptuous in telling the jury they could determine the statewide standard from what they knew of their own community when the judge had refused the state's instruction to that effect. The prosecutor's argument was also a violation of the order in limine, although it is by no means apparent that the violation was deliberate. The case was tried by a different prosecutor than the one who was representing the state when the order in limine was entered. Also to be weighed in the balance is whether the prosecutor's argument misstated the law. While his comment was a bit unfocused, we do not believe it was necessarily a misstatement of the law.

In Hamling v. United States, 418 U.S. 87, 104-05, 94 S.Ct. 2887, 2901, 41 L.Ed.2d 590, 613 (1974), the United States Supreme Court held that a juror could draw upon "his own knowledge of the views of the average person in the community or vicinage from which he comes" in determining what the community standard is. Id., 418 U.S. at 104, 94 S.Ct. at 2901. The court in Hamling was dealing with the question of whether the standard should be nationwide, and was not called upon to consider how a jury should assess a statewide standard. Based upon the general proposition quoted from Hamling and upon our supreme court's decision in State v. Bartanen, 121 Ariz. 454, 591 P.2d 546, cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113 (1979), in which it was noted that as a practical matter jurors, in considering the state standard, would resort to their knowledge of how people in their own communities felt on the issue, we believe that a juror may consider, as a factor, the views of the average person in the juror's community in arriving at an assessment of the statewide standard.

It is true that, narrowly read, the prosecutor's argument can be interpreted to mean that the jury can apply a purely community standard. It can also be interpreted to mean that the jury can determine the state standard from what they know of their own community. This case is a good example of why an objection is necessary to preserve an issue for review. Had the defendant objected and called the judge's attention to the order in limine, the judge might have stricken the...