State v. Williams

• Decision Date: 02 July 1991
• Docket Number: No. 90AP-638,90AP-638
• Citation: 598 N.E.2d 1250,75 Ohio App.3d 102
• Parties: , 59 A.L.R.5th 899 The STATE of Ohio, Appellee, v. WILLIAMS, Appellant. *
• Court: Ohio Court of Appeals

Page 102

75 Ohio App.3d 102

598 N.E.2d 1250, 59 A.L.R.5th 899

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

No. 90AP-638.

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

Decided July 2, 1991.

Michael Miller, Pros. Atty., William John Owen, II, Carol Hamilton O'Brien, Ronald J. O'Brien, City Atty., James J. Fais, City Prosecutor, and Thomas K. Lindsey, Columbus, for appellee.

Klein & Shafer and Lee J. Klein, Okemos, Mich., for appellant.

JOHN C. YOUNG, Judge.

This matter is before this court upon the appeal of Garrett E. Williams, appellant, from a judgment of conviction and sentence entered against him following a jury trial in the Franklin County Municipal Court. Appellant was charged with and convicted of pandering obscenity in violation of R.C. 2907.32(A)(2). On appeal to this court, appellant sets forth the following assignments of error:

"Assignment of Error I

"The trial court erred (abused its discretion) in unduly restricting the conducting of voir dire by appellant.

"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 in refusing to admit, or take any testimony regarding alleged 'comparable' materials.

"Assignment of Error IV

"The trial court erred, by both restricting and prohibiting appellant's attempts to introduce evidence of contemporary community standards in violation of appellant's sixth amendment rights.

"Assignment of Error V

"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 VI

"The trial court erred in denying appellant's motion for judgment of acquittal due to the prosecution's failure to put on any testimony regarding contemporary community standards.

"Assignment of Error VII

"The trial court erred by failing to instruct the jury that 'prurient appeal' be measured by the impact and effect of the material on the average person. "Assignment of Error VIII

"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.

"Assignment of Error IX

"The trial court erred in failing to instruct the jury that all three parts of the Miller test for obscenity must exist, at the same time, in addition to the Ohio Obscenity Statute before the appellant can be convicted.

"Assignment of Error X

"The trial court erred in failing to instruct the jury that appellant was entitled to a verdict of not guilty if the jury could not ascertain the applicable contemporary community standards.

"Assignment of Error XI

"The trial court erred by improperly instructing the jury as to the definition of 'prurient interest.'

"Assignment of Error XII

"The trial court erred in failing to instruct the jury as to the definition of 'average person.'

"Assignment of Error XIII

"The trial court erred by failing to instruct the jury that the [allegedly obscene] material was to be considered 'as a whole' in applying the three part test for obscenity set forth in Miller v. California, 413 U.S. 15 [93 S.Ct. 2607, 37 L.Ed.2d 419] (1973).

"Assignment of Error XIV

"The trial court erred in failing to instruct the jury that the 'serious value' prong of the Miller test is not to be judged by contemporary community standards or limited by geographic boundaries and further that if a reasonable person could find value in the material, that it would not be obscene.

"Assignment of Error XV

"The trial court misled the jury as to the proper definition of 'contemporary community standards' in its various evidentiary rulings."

During the pendency of this appeal, appellant died on January 4, 1991. Pursuant to App.R. 29(A) and State v. McGettrick (1987), 31 Ohio St.3d 138, 31 OBR 296, 509 N.E.2d 378, Garrett W. Pittinger, administrator of appellant's estate, was substituted for the appellant.

In the first assignment of error, appellant argues that the trial court abused its discretion by unduly restricting the voir dire examination of appellant's defense counsel. Appellant contends that by limiting the scope of his voir dire examination, appellant was unable to determine potential biases of the prospective jurors and was, thereby, deprived of his right to trial by a fair and impartial jury.

The right to be tried by a fair and impartial jury of one's peers is a fundamental right guaranteed a criminal defendant under the Sixth Amendment to the United States Constitution. Irvin v. Dowd (1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751. The purpose of the voir dire examination of a prospective juror is to determine whether the prospective juror has both the statutory qualifications of a juror and is free from bias or prejudice for or against either party. Dowd-Feder, Inc. v. Truesdell (1936), 130 Ohio St. 530, 5 O.O. 179, 200 N.E. 762, paragraph one of the syllabus. Voir dire examination, where not specifically controlled by statute, is largely in the discretion of the trial judge, and no prejudicial error can be assigned in connection with such examination unless there is shown to be a clear abuse of such discretion. State v. Ellis (1918), 98 Ohio St. 21, 120 N.E. 218, paragraph one of the syllabus; State v. Procter (1977), 51 Ohio App.2d 151, 156, 5 O.O.3d 309, 311, 367 N.E.2d 908, 912; State v. Swanson (1984), 16 Ohio App.3d 375, 16 OBR 430, 476 N.E.2d 672. An abuse of discretion connotes more than just an error of law. It exists where the court's attitude, evidenced by its decision, was unreasonable, arbitrary or unconscionable. State v. Jenkins (1984), 15 Ohio St.3d 164, 222, 15 OBR 311, 360, 473 N.E.2d 264, 313.

Appellant's counsel sought to inquire as to whether or not any of the prospective jurors believed that the viewing of sexually explicit material was bad or harmful. The trial court restricted any questioning along these lines. Additionally, appellant's counsel sought to determine whether or not the prospective jurors harbored any bias or prejudice against adult book stores in general. The trial court prevented any questioning along these lines as well.

In both instances, the trial court indicated that it believed that these two particular questions would serve to confuse the issues and mislead the jury. It is within the sound discretion of the trial court to make such a decision during the voir dire examination of prospective jurors. This case does not involve any action against the adult book store industry in general nor does it concern the particular adult book store in which this movie was purchased. Likewise, the issue involved does not center on whether or not the jurors believe sexually explicit movies are bad or harmful. The issue is whether or not the movie "Pleasure Games" is obscene. Upon review of the entire voir dire examination, the trial court did not abuse its discretion and the appellant was not prejudiced by the exclusion of those two particular questions.

Appellant's counsel was permitted to question the prospective jurors as to whether or not they had seen x-rated movies, if they belonged to any video clubs which rented x-rated movies, or if they or their spouses subscribed to any sexually explicit magazines. Appellant's counsel was also allowed to question the prospective jurors as to their opinion concerning nudity in films and whether or not they had any personal biases or attitudes about sexually explicit materials which would affect them in one way or another in determining this case. Appellant's counsel was free to inquire as to the personal attitudes of the prospective jurors with regard to this type of material and he had ample opportunity to determine the potential biases of the prospective jurors.

Accordingly, this court finds that the trial court did not abuse its discretion in limiting the scope of the voir dire examination and appellant's first assignment of error is overruled.

Appellant's sixth assignment of error will be considered next. In the sixth assignment of error, appellant contends that the trial court erred in denying his motion for a judgment of acquittal due to the prosecution's failure to put on any testimony regarding contemporary community standards.

The Ohio Supreme Court stated as follows, at paragraph four of the syllabus of Urbana ex rel. Newlin v. Downing (1989), 43 Ohio St.3d 109, 539 N.E.2d 140:

"If the materials alleged to be obscene are admitted into evidence, there is no need for lay witnesses to testify on whether they think those materials are obscene. (Paris Adult Theatre I v. Slaton [1972], 413 U.S. 49 [93 S.Ct. 2628, 37 L.Ed.2d 446], followed.)"

The court further stated at 113, 539 N.E.2d at 144:

"The United States Supreme Court has stated that if the materials alleged to be obscene are placed into evidence, they 'are the best evidence of what they represent' and that expert testimony is not necessary to establish that they are obscene unless the materials are 'directed at such a bizarre deviant group that the experience of the trier of fact would be plainly inadequate to judge whether the material appeals to the prurient interest' * * *." (Citations omitted.)

Accordingly, the trial court did not err in denying appellant's motion for judgment of acquittal and appellant's sixth assignment of error is not well taken and is overruled.

In the second assignment of error, appellant argues that the trial court erred by excluding appellant's proffered public opinion poll and testimony relative to the data collected. Appellant urges this court to apply the test set forth in Saliba v. State (Ind.App.1985), 475 N.E.2d 1181. Likewise, in his fourth assignment of error, appellant argues that the trial court erred by restricting and prohibiting his attempts to introduce evidence of contemporary community standards. These two assignments of error are interrelated...