State v. Wrestle, Inc.

• Decision Date: 19 June 1978
• Docket Number: No. 61342,61342
• Citation: 360 So.2d 831
• Parties: 4 Media L. Rep. 1312 STATE of Louisiana, Appellee, v. WRESTLE, INC. and Daniel W. Burch, Appellants.
• Court: Louisiana Supreme Court

Page 831

360 So.2d 831

4 Media L. Rep. 1312

STATE of Louisiana, Appellee, v. WRESTLE, INC. and Daniel W. Burch, Appellants.

No. 61342.

Supreme Court of Louisiana.

June 19, 1978.

Jack C. Peebles, Metairie, for appellants.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for appellee.

TATE, Justice.

The principal issues raised by the defendants' appeal concern: I. The constitutionality of the obscenity statute under our state constitution (Assignment 1); II. The alleged lack of proof that the defendant Burch, a corporate officer, had knowledge (scienter) of the contents, nature, or character of the obscene films exhibited on premises operated by the corporation (Assignment 4); and III. The denial of the defendant Burch's federal constitutional right to trial by jury through the determination of his guilt by the verdict of a non-unanimous (5-1) verdict of the six-person jury.

The defendants, Wrestle, Inc. and Daniel W. Burch, its president, were jointly charged in two counts with exhibition and display of obscene hard-core sexual conduct. La.R.S. 14:106. The six-person jury unanimously convicted Wrestle, Inc. and, by vote of 5-1, likewise convicted the defendant Burch of both counts. ¹

The defendants are charged with the exhibition and display of two obscene motion pictures. The evidence shows that these films were exhibited in booths (peep shows) at Mid-Town News, premises operated by the corporate defendant. The films were located in small booths in a rear room of the store, in which were situated coin operated projectors. By insertion of a quarter, these permitted viewing through its projection a portion of the film onto a small viewing screen.

I. Constitutionality

By their motion to quash the informations, the defendants charge that La.R.S. 14:106 is unconstitutional as vague, arbitrary, and overbroad. ² Specifically, the defendants contend that the indictment founded on the statute does not, as required by our state constitution, adequately inform the accused of the nature and cause of the accusation against him. La.Const. of 1974, Art. 1, Section 13.

The defendants are charged with exhibiting obscene material. La.R.S. 14:106(A)(3) ³ defines "obscene material" as a tangible work or thing which displays "hard-core sexual conduct" ⁴ depicted "in a patently offensive way", "which the trier of fact determines that the average person applying contemporary community standards would find, . . . taken as a whole, appeals to the prurient interest."

The defendants suggest that the following phrases of the definition are sufficiently indefinite as to render the statute unconstitutional: "Contemporary community standards," "prurient interest," and "patently offensive." They argue that, to give the jury such a set of variables but without providing adequate objective criteria for determining the content of the variables, simply passes on to the jury what should be a legislative function.

In short, the defendants rely upon jurisprudential expressions that, under our state constitution, a person cannot be subject to criminal prosecution for any act unless that act has first been denounced with sufficient legislative precision that the person sought to be held accountable will know that his conduct falls within the prohibition of the statute.

The legislation defines hard-core sexual conduct, an essential element of the crime, in concrete and specific terms. La.R.S. 14:106(A), quoted in footnote 4 above. By this definition, the potential offender is informed with specificity of the type of conduct which subjects him to criminal penalty.

Additionally, however, the trier of fact is obliged to determine whether such explicitly defined sexual portrayal is depicted "in a patently offensive manner" and that the average person "applying contemporary community standards" would find that the work as a whole "appeals to the prurient interest." ⁵ The purpose of the community standards test, first enunciated in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), was to emphasize the need for an external standard, as compared with the trier of fact's personal views of decency, and to prevent the evaluation of obscenity being based on whether the material had an adverse effect on any particularly susceptible subclass of the community. 354 U.S. 488-91, 77 S.Ct. 1311-12. See Schauer, The Law of Obscenity 117 (1976).

This standard for the factual determination of criminal conduct is thus essentially designed to protect an accused against conviction for exhibition of what otherwise falls within the explicit statutory definition of hard-core pornography. As stated in another context in Hamling v. United States, 418 U.S. 87, 104-05, 94 S.Ct. 2887, 2901, 41 L.Ed.2d 590 (1974), the trier of fact is by this standard only "entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a 'reasonable' person in other areas of the law."

The Louisiana obscenity statute, in the portions quoted in this opinion (see footnotes 3, 4), clearly complies with the federal constitutional requirements of regulating only specifically defined sexual conduct, limited to works which, taken as whole, appeal to the prurient interest in sex, which portray this conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 25, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973). (Likewise, our statutory guidelines for the trier of fact comply with the federal constitutional standard for factual determination of obscenity, including by the use of contemporary community standards. Id.)

As Miller notes, compliance of a state statute with these constitutional prerequisites "will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution." 413 U.S. 28, 93 S.Ct. 2616-17. We are satisfied that such notice not only satisfies federal due process and First Amendment requirements but also similar notice requirements of our state constitution.

We therefore reject the defendant's contention that the statute does not adequately inform the accused of the conduct proscribed by it.

The defendant further contends that the community standard for determination of obscenity leaves protection of constitutional freedom of expression to the whim of each jury. In this regard, Miller states: "If a state law that regulates obscene material is thus limited . . . (as is Louisiana's), the First Amendment values . . . are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary." 413 U.S. 25, 93 S.Ct. 2615.

We have recognized our duty to conduct an independent constitutional review in the appellate court of constitutional claims. State v. Amato, 343 So.2d 698, 703-04 (La.1977). As we stated in State v. Luck, 353 So.2d 225, 230 (La.1977): " * * * the trial court's determination that material is or is not obscene presents an issue of law fully reviewable by this court. Even the factual determination of obscenity by a trial jury must be subject to full appellate review to meet constitutional standards designed to effectuate freedom of expression. Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974."

The trial court properly overruled the defendants' motion to quash the indictment. ⁶ We find no merit to this assignment of error.

II. "Scienter"

In his motion for a new trial, the defendant Burch contended, inter alia, that there was no evidence that he had knowledge of the contents, character, or nature of the obscene films exhibited by the corporation co-defendant. Burch was the president of the corporation.

Determination of guilt of obscenity constitutionally requires proof of scienter or knowledge. Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). As the decision indicates, this proof may be circumstantial. The state need not, however, show the defendant knew the legal status of the materials to be obscene; it is sufficient that, under the statute, the state be required to show that the accused had knowledge of or had reason to know of the character and nature of the contents of the materials for distribution or exhibition of which he was responsible. Hamling v. United States, 418 U.S. 87, 119-25, 94 S.Ct. 2887, 2908-11 (1974); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966); Schauer, The Law of Obscenity 222-26 (1976).

The trial judge therefore instructed the jury that the evidence must show beyond a reasonable doubt "that the defendants had knowledge of the character and content of the motion picture at the time that the defendants possessed, exhibited, and displayed the material." The trial judge further instructed the jury: " * * * when you are considering whether the defendant had guilty knowledge, you are to consider whether he personally knew, not whether some person allegedly acting for him knew about it, nor whether some associate knew about it. In this kind of case, whatever may be the rules of agency in civil matters, individuals are to be charged on the basis of the personalized individual knowledge only."

Thus instructed, the jury found (5-1) the defendant Burch guilty of both counts.

The evidence shows: The defendant Burch was the president of the corporation which operated the store. It was a local corporation, and Burch lived in the locality. In the back of the store was a small room with twelve coin-operated viewing machines.

Burch was seen in the store by a police officer on at least one of his visits to it....