State v. Piepenburg

• Decision Date: 26 October 1979
• Docket Number: No. 15895,15895
• Citation: 602 P.2d 702
• Parties: STATE of Utah, Plaintiff and Respondent, v. James PIEPENBURG, Defendant and Appellant.
• Court: Utah Supreme Court

Page 702

602 P.2d 702

STATE of Utah, Plaintiff and Respondent, v. James PIEPENBURG, Defendant and Appellant.

No. 15895.

Supreme Court of Utah.

Oct. 26, 1979.

John D. O'Connell, Richard J. Hertzberg, Phoenix, Ariz., for defendant and appellant.

Robert B. Hansen, Atty. Gen., Paul E. Reimann, Asst. Atty. Gen., Roger Cutler, Salt Lake City Atty., Paul G. Maughan, Stanley H. Olsen, Asst. City Attys., Salt Lake City, for plaintiff and respondent.

HALL, Justice:

Defendant appeals from his conviction for having violated Utah's obscenity statute. ¹ He was sentenced to six months in jail with three months suspended and the sentenced was stayed pending this appeal.

On May 25, 1977, three films were seized from the Gallery Theatre pursuant to a search warrant and defendant was arrested. The warrant was issued by a magistrate who based his order on the detailed description of the films as contained in a police officer's affidavit. Although defendant claims he had previously terminated his relationship with the theatre, he was at the theatre when the films were seized.

A preliminary hearing was held on June 21, 1977, before a magistrate. Based on the testimony of a police officer as to the contents of the film, defendant was bound over for trial. Subsequently, on November 15, 1977, the district court remanded the case for a second preliminary hearing with the instruction that the magistrate was to view the films. The second preliminary hearing was held February 1, 1978, at which time the magistrate viewed the films and found them to be obscene. The case then was tried in district court in May 1978 before a jury which found defendant guilty of having violated Utah's obscenity statute.

Defendant asserts five basic points on appeal: (1) the unconstitutionality of the statute; (2) insufficiency of the evidence to find defendant guilty; (3) unconstitutional restraint of freedom for failure to promptly obtain a judicial determination as to the obscene nature of the films; (4) denial of a trial by a fair and impartial jury; and (5) prejudicial statements by the court before the jury.

Defendant's challenge to the constitutionality of the statute concerns U.C.A., 1953, 76-10-1208(1) which provides as follows:

It is an affirmative defense to prosecution under this part that the distribution of pornographic material was restricted to institutions or persons having scientific, educational, governmental, or other similar justification for possessing pornographic material.

The claim that the statute is vague focuses upon the phrase "other similar justification." Defendant asserts that the meaning of the phrase cannot be ascertained with precision. In State v. Haig, ² we held that the general statute is not unconstitutionally vague:

A statute is vague when it fails to inform persons of ordinary intelligence what their conduct must be in order for them to be guilty of a violation thereof. (Citation omitted.)

Our statute clearly states that the article must appeal to prurient interests in sex (U.C.A., 1953, as amended 76-10-1203(1)(a)); it specifically defines the prohibited conduct and sets it out in U.C.A., 1953, as amended, 76-10-1201(7) and 76-10-1203(1)(b); and states that in order for the matter to be pornographic, it must have "no serious literary, artistic, political or scientific value" (U.C.A., 1953, 76-10-1203(2)).

Our statute thus complies fully with the requirements set out by the high Court. It does not offend against any constitutional provision. It is a valid statute and those who so flagrantly flout it must pay the penalty for doing so.

Likewise, the affirmative defense statute cited ante is sufficiently clear that men of common intelligence need not guess at its meaning. ³ Only persons or institutions that can demonstrate a bona fide "scientific, educational, governmental or other similar justification" for possessing such material are exempt from the sanction of the statute. It cannot be logically argued that these words are vague when such words as "literary," "artistic," and "political" all pass constitutional muster. ⁴ The word "similar" is limited to and modified by the three specific terms immediately preceding it, (scientific, educational and governmental) and should not be significantly expanded beyond these three basic legitimate reasons for possessing pornographic material. Nevertheless, it is conceivable that a defendant might show a justifiable reason for possessing such material which cannot be clearly classified as falling within these three categories. As the court noted in People v. Illardo : ⁵

. . . In using the term, "other similar justification," the legislature does not lead a defendant down a blind alley where he cannot see or determine whether he has a right to propound an affirmative defense. Rather, by legislative indulgence, it opens another area in which a defendant in a particular case well might assert that the person or institution to whom he had disseminated obscene material was one whose possession of the material would be as legitimate and as socially desirable as those listed under the three enumerated categories.

Defendant's claim that it is in violation of his right to equal protection of the laws also fails. In State v. Packard, ⁶ we held as follows:

Statutes may deal with different classes differently, if all within the same class are treated uniformly, and so long as there is some reasonable basis for differentiation between classes related to the purpose of the statute.

There is clearly a reasonable basis for treating law enforcement or educational institutions with bona fide pursuits and intentions differently than profit-making commercial ventures with unlawful pursuits and intentions. ⁷ Therefore, as we have previously held, the statute is constitutional.

Defendant next claims that there was insufficient evidence for the jury to find that he exhibited the films, instructed, requested or commanded anyone else to exhibit them or had any knowledge of what was in them. He concedes that he was a director and former manager, but contends that he had terminated his employment at the theatre in mid-May. A jury verdict is to be sustained where there is substantial evidence to support it. ⁸

The evidence introduced at trial demonstrated the following: At the time of the offense defendant was shown to be the president and a director of the corporation which operated the theatre (West Gallery Corporation); defendant applied for the business and regulatory licenses for the operation of the theatre for the year 1977 and there had been no change made thereon at the time of the offense; defendant was the manager of the theatre during February, March, April, and at least part of May; he was a paid employee of West Gallery Corporation through June 1977; he was present on the premises when the films were seized, and had been present on many prior occasions; he had authority to act for the corporation and the theatre as seen by his actions at the time of arrest; ⁹ the theatre restricted entrance to the premises by a "locking buzzer device" on its door; the premises were posted with the notices describing the sexual nature of the materials shown and patrons were required to sign a statement that they understood the nature of the material to be viewed.

Based on the totality of the foregoing evidence, a jury could reasonably conclude that defendant had knowledge of the content of the films seized and that he was guilty of the crime charged.

The contention regarding restraint of freedom is really two-fold. Defendant claims that the trial court cannot issue a valid search warrant without personally viewing the allegedly pornographic films, and further, that once seizure has occurred, there must be a prompt adversary proceeding as to the pornographic nature of the material.

As to the first proposition, our statute ¹⁰ provides that the material alleged to be pornographic should be attached to the affidavit where practical. However, where the magistrate deems it not practical to "attach the material to the affidavit," he may properly issue the warrant based solely on the affidavit filed with him. The case ¹¹ relied upon by defendant to challenge the constitutionality of such procedure appears to have been expressly overruled in State v. Conaughty, ¹² which held as follows:

A magistrate may find probable cause to issue a warrant when an affiant views a film and in his affidavit or attendant testimony he factually describes the film in detail. (Citations omitted) The affidavit must simply allow the magistrate an opportunity to "focus, searchingly on the question of obscenity," (citations omitted).

We adopt such holding here, and based on the content of the police officer's affidavit and accompanying memorandum, we are convinced that the magistrate searchingly focused on the issue of obscenity before ever issuing the search warrant.

There is no merit to defendant's contention on appeal that he was refused a prompt adversary hearing. This is a hearing made available to defendant in addition to the preliminary hearing and trial whereby the defendant can challenge the basis of the complaint against him, i. e., the obscene nature of the materials seized. However, A defendant must request such a hearing according to the following procedure:

In the event that a search warrant is issued and material alleged to be pornographic is seized under the provisions of this section, any person claiming to be in possession of this material or claiming ownership of it at the time of its seizure may file a notice in writing with the magistrate within 10 days after the date of the seizure, alleging that the material is not pornographic. The magistrate shall set a hearing within seven days after the filing of this notice, or at such other time as the claimant might agree. At this hearing evidence may be presented as to whether there is probable cause to believe the material seized is pornographic,...