State v. Wolfe, s. 87AP-192

• Decision Date: 22 September 1987
• Docket Number: Nos. 87AP-192,AP-199,s. 87AP-192
• Citation: 534 N.E.2d 920,41 Ohio App.3d 119
• Parties: The STATE of Ohio, Appellant, v. WOLFE, Appellee. * (Three Cases) The STATE of Ohio, Appellant, v. LONG, Appellee.* to 87
• Court: Ohio Court of Appeals

Page 119

41 Ohio App.3d 119

534 N.E.2d 920

The STATE of Ohio, Appellant, v. WOLFE, Appellee. ^* (Three Cases)

The STATE of Ohio, Appellant, v. LONG, Appellee.*

Nos. 87AP-192 to 87AP-199.

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

Sept. 22, 1987.

Syllabus by the Court

1. In order for a literary or visual work to be considered obscene in Ohio, it must satisfy the definition set forth in R.C. 2907.01(A), (B) (C) and (F) and comport with the determination of what can be proscribed as obscene in Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. (State v. Burgun [1978], 56 Ohio St.2d 354, 10 O.O.3d 485, 384 N.E.2d 255, paragraph one of the syllabus, followed.)

2. The words "sexual conduct" as used in Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, are not defined or limited by R.C. 2907.01(A). Rather, "sexual conduct" as used in Miller is much broader than the definition of R.C. 2907.01(A) and includes most, if not all, of the conduct defined as "sexual activity" by R.C. 2907.01(C).

3. A videotape which depicts the piercing of male and female genitals in the context of bondage, sexual discipline and sadomasochism is obscene as defined by R.C. 2907.01(C), R.C. 2907.01(F) and Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, construed in pari materia.

Ronald J. O'Brien, City Prosecutor, for appellant.

Thomas M. Tyack, Columbus, for appellees.

WHITESIDE, Judge.

In these consolidated cases, plaintiff, the state of Ohio, appeals from identical judgments of the Franklin County Municipal Court and raises the following assignments or error in each case:

"The trial court erred by granting the defendant-appellee's motion to dismiss the indictment."

On May 8, 1986, a police officer purchased a videotape entitled "Slave Piercing" from the defendants at the Zodiac Book Store. The videotape, which constitutes the subject of this action, is divided into four segments, each of which depicts sadomasochism, including sexual bondage, sexual discipline or flagellation, and each of which includes scenes of piercing of the genitals of males or females with a sharp object, often a needle, so that earrings or other devices or jewelry may be inserted in those genitals. The video is replete with scenes of spanking and whipping scantily clothed and unclothed men and women, manual stimulation of sexual organs of others, and physical subjugation, but no scenes of any type of sexual intercourse, except one showing an act of apparent cunnilingus involving two females.

The Franklin County Grand Jury returned a two-count indictment charging defendants with pandering obscenity under R.C. 2907.32, a misdemeanor with respect to the videotape of "Slave Piercing" sold to the police officer, one count charging exhibiting or advertising for sale and the other charging a sale of obscene material. The indictment was remanded to the Franklin County Municipal Court for trial. Each defendant entered a plea of not guilty and requested a jury trial. In addition, each defendant filed a motion to dismiss. The trial court, after an oral hearing and a review of the videotape in question, ¹ granted defendants' motions, stating that:

" * * * [T]he activities depicted in the tape at issue do not fall within the definition of Sexual Conduct as set out in Section 2907.01 of the Revised Code of Ohio, as required in Miller v. California, 413 U.S. 15 [93 S.Ct. 2607, 37 L.Ed.2d 419] (1973)."

The state contends that R.C. 2907.01 must be considered in its entirety, and both the statute and applicable case law require the court to overrule the motion to dismiss. Defendants contend (1) that R.C. 2907.01(F) is unconstitutionally overbroad and vague, and (2) that, even if the statute is constitutional, the videotape does not present "sexual conduct" as defined by R.C. 2907.01(A). Defendants make no contention that the videotape in question constitutes protected "speech" or "press" under the First Amendment, but tacitly concede the videotape to be obscene under constitutional standards.

As held in Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, obscenity is not within the area of constitutionally protected speech or press either under the First Amendment, applicable to the federal government, or under the Due Process Clause of the Fourteenth Amendment, applicable to the states. Sixteen years later, after years of confusing decisions, the United States Supreme Court in Miller v. California (1973), 413 U.S. 15, at 24, 93 S.Ct. 2607, at 2615, 37 L.Ed.2d 419, finally set forth a tripartite test for judging whether material is obscene:

" * * * (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest * * *; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. * * * "

Included in that Supreme Court opinion were two "plain examples of what a statute could define for regulation under part (b)" (emphasis added) of the above-quoted test:

"(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

"(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals." Id. at 25, 93 S.Ct. at 2615.

Additionally, the court commented, at 27, 93 S.Ct. at 2616, that under its holdings announced that day:

" * * * [N]o one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core' sexual conduct specifically defined by the regulating state law, as written or construed. * * * "

The use of the term "hard core" sexual conduct does not limit the examples set forth in the Miller decision. Instead, such examples give meaning to the court's use of the words "hard core" several times in the opinion.

The Supreme Court in Miller expressly defined "sexual conduct" to include "sexual acts, normal or perverted, actual or simulated," id. at 25, 93 S.Ct. at 2615, and, thus, necessarily to include sadomasochistic materials. If there were any doubt, the Supreme Court further clarified Miller, supra, in Ward v. Illinois (1977), 431 U.S. 767, 773, 97 S.Ct. 2085, 2089, 52 L.Ed.2d 738, when it emphasized that the specific examples given in Miller, supra, were merely examples and " 'were not intended to be exhaustive,' " citing Hamling v. United States (1974), 418 U.S. 87, 114, 94 S.Ct. 2887, 2906, 41 L.Ed.2d 590. In Ward, the United States Supreme Court held that sadomasochistic materials may be proscribed by state law even though they are not expressly included within the examples of sexually explicit representations in Miller; that the Illinois obscenity statute is not on its face unconstitutionally vague as failing to give notice; and that, in any event, guidance had been given by prior decisions of the Illinois Supreme Court making it clear that the involved conduct did not conform to Illinois law. The Ward court, 431 U.S. at 775-776, 97 S.Ct. at 2090-2091; further held that the Illinois obscenity statute is not on its face unconstitutionally overbroad and, even if it were, the Illinois Supreme Court expressly incorporated the Miller guideline as part of the law and thereby also adopted the Miller explanatory examples, which give substantive meaning to such guidelines by indicating some of the types of materials within the purview of the statute.

Quite recently, the United States Supreme Court in Pope v. Illinois (1987), 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439, reiterated that only parts (a) and (b) (appeals to prurient interest and patently offensive) of the Miller tripartite test should be determined with reference to contemporary community standards. The court held that the proper inquiry for part (c) (the existence of use for a proper value) of the test is whether a reasonable person would find such value in the material, taken as a whole. Id. at 500-501, 107 S.Ct. at 1920-1921, 95 L.Ed.2d at 445.

The Supreme Court's decisions, starting with Miller, supra, must be viewed against the background of earlier decisions in Roth, supra, and Ginzburg v. United States (1966), 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31. Chief Justice Warren in his concurring opinion in Roth, supra, does not hesitate to point out that, when it is a person, not a book or object, which is on trial, the conduct of the defendant is the central issue, and the "materials are * * * placed in context from which they draw color and character[,] [a] wholly different result might be reached in a different setting." Roth, supra, 354 U.S. at 495, 77 S.Ct. at 1315. In Ginzburg, supra, defendant was convicted of violating a federal obscenity statute. Justice Brennan stated, 383 U.S. at 465-466, 86 S.Ct. at 944-945:

" * * * We agree that the question of obscenity may include consideration of the setting in which the publications were presented as an aid to determining the question of obscenity. * * *."

Justice Brennan further stated at 475-476, 86 S.Ct. at 949-950:

" * * * Where an exploitation of interests in titillation by pornography is shown with respect to material lending itself to such exploitation through pervasive treatment or description of sexual matters, such evidence may support the determination that the material is obscene even though in other contexts the material would escape such condemnation."

The Ohio legislature in R.C. 2907.32 prohibits the pandering of obscenity and provides, in part, as follows:

"(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:

"(1) Create, reproduce, or publish any obscene material, when the...