Underwood v. State

• Decision Date: 03 February 1978
• Docket Number: No. 2,No. 54953,54953,2
• Citation: 144 Ga.App. 684,242 S.E.2d 339
• Parties: H. M. UNDERWOOD, III v. The STATE
• Court: Georgia Court of Appeals

Page 339

242 S.E.2d 339

144 Ga.App. 684

H. M. UNDERWOOD, III v. The STATE.

No. 54953.

Court of Appeals of Georgia, Division No. 2.

Feb. 3, 1978.

No attorneys for appellant.

Hinson McAuliffe, Sol., Leonard W. Rhodes, Asst. Sol., Atlanta, for appellee.

WEBB, Judge.

Underwood was found guilty on two accusations of violation of Code Ann. § 26-2101 (distributing obscene materials), and from the convictions thereon, as well as the denial of his motions to dismiss, for separate trials, and to suppress evidence, he entered this appeal.

1. Error is charged to the trial court in overruling Underwood's motion to dismiss the two accusations on the ground that Code Ann. § 26-2101 is unconstitutional as violative of the accused's rights under the First, Fourth, Fifth, Ninth and Fourteenth Amendments of the United States Constitution because the statute (a) is void for vagueness and violates due process; (b) is overbroad in having no cognizable standards for determining and regulating obscenity; (c) gives no authoritative legislative statement or judicial construction as to geographical area representing contemporary community standards; and (d) proscribes the possession of materials which are neither dangerous nor harmful per se and in which the State has no interest nor rational basis.

Georgia's obscenity statute has previously withstood similar attacks on its constitutionality, and there is no merit in enumerations of error 1 and 2. Pierce v. State, 239 Ga. 844, 239 S.E.2d 28 (1977); Sewell v. State, 238 Ga. 495(1), 233 S.E.2d 187 (1977); Dyke v. State, 232 Ga. 817, 818(I) 209 S.E.2d 166 (1974); Robinson v. State, 143 Ga.App. 37, 38(2), 237 S.E.2d 436 (1977).

2. Underwood asserts as error number 3 that the due process rights under the Fourth and Fourteenth Amendments of the Constitution were violated by the trial court's denial of his motion for separate trials on the two accusations, and cites in support thereof Dingler v. State, 233 Ga. 462, 211 S.E.2d 752 (1975); Wigley v. State, 140 Ga.App. 145, 230 S.E.2d 108 (1976); Buckles v. State, 137 Ga.App. 802, 225 S.E.2d 61 (1976); and Code Ann. § 26-506.

In both Wigley and Buckles, this court, following Dingler, held that "(w)hen two or more crimes are charged in separate counts in a single indictment, though committed at different times and places and involving transactions with different persons, and are of the same general nature or species, and the mode of trial is the same, it is mandatory that the trial judge, upon motion of defendant, order separate trials for each of the crimes charged." (Emphasis supplied.) Dingler v. State, 134 Ga.App. 223, 224(3), 214 S.E.2d 6, 7 (1975).

Code Ann. § 26-506(b) and (c) provides: "If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except . . . the court in the interest of justice may order that one or more of such charges be tried separately." As the Supreme Court asserted in Dingler v. State, 233 Ga. 462, 463, 211 S.E.2d 752, 753, supra, "Necessarily, then, severance in this particular kind of circumstance lies within the sound discretion of the trial judge since the facts in each case are likely to be unique." See also Coats v. State, 234 Ga. 659, 662, 217 S.E.2d 260 (1975); Padgett v. State, 142 Ga.App. 139, 140, 235 S.E.2d 545 (1977).

Here the two offenses arose from the same conduct, occurred at the same place, involved the same persons, but occurred at different times. The evidence "was not of such complexity as to hinder the trier of fact in being able to distinguish the evidence and apply the law intelligently as to each offense." Smith v. State, 138 Ga.App. 226, 228(2), 225 S.E.2d 744, 747 (1976). We find no error in the denial of the accused's motion for separate trials on the two accusations against him.

3. For his fourth alleged error Underwood argues that the court erred in overruling his motion to suppress evidence which was seized without the aid of either a search warrant or an arrest warrant, in violation of his rights under the Fourth and Fourteenth Amendments.

The magazines, upon which the accusations are in part based, "Happy Humpers" and "Dreamy Sisters," were not seized but were purchased by the investigating officer. They clearly show to us, from our examination of them, repulsive as that was, that the officer had probable cause to arrest the accused for violation of the state's obscenity statute. Wood v. State, 144 Ga.App. 236(1), 240 S.E.2d 743 (1977).

Testimony was offered to the effect that the devices seized were on display in plain view to anyone who walked into the store, that the store was a public place, that the investigator had a right to be where he could and did see them, that there was no unlawful search, that the devices seized were on display for sale and were marketed as useful primarily for the stimulation of human genital organs.

The devices included, among other items, dildos and artificial vaginas. They clearly came within the prohibition of Code Ann. § 26-2101(c) which provides: "Additionally any device designed or marketed as useful primarily for the stimulation of human genital organs is obscene material under this section." The seizure comes within the plain view doctrine. Sewell v. State, 238 Ga. 495(2), 233 S.E.2d 187, supra; Robinson v. State, 143 Ga.App. 37, 40(5), 237 S.E.2d 436, supra. The trial court did not err in overruling the motion to suppress.

4. The accused contends that the verdict was contrary to the evidence because it was not shown that he had knowledge of the obscene nature of the articles sold and seized. We must reject this contention. The evidence need not show that the appellant actually knew the devices were obscene. The applicable test under Code Ann. § 26-2101 is whether he has " 'knowledge of facts which would put a reasonable and prudent man on notice as to the suspect nature of the material.' " Dyke v. State, 232 Ga. 817, 822, 209 S.E.2d 166, 170 (1974). The store operated by the accused was complete with an array of so-called sex magazines, artificial sexual organs on display, and a massage parlor with a female operator available for services at the rate of $20 for 30 minutes or $35 for an hour.

5. Underwood enumerates as error number 6 that the physical evidence was not obscene as a matter of law. He argues that his expert witness, Dr. Ann McAlister, a clinical psychologist, testified that the individuals performing the sexual acts portrayed in the magazines sold by Underwood appeared to be enjoying themselves, the magazines offered sexual education, and did not depict sexual acts in a shameful or morbid fashion. Apparently the jury did not share her views, and they too had the benefit of their own visual observation of the evidence as well as the testimony of the "expert" and the State's witness. The jurors may have chosen to "use their own common sense as intelligent human beings . . . ." Feldschneider v. State, 127 Ga.App. 745, 746, 195 S.E.2d 184, 185 (1972). Our own viewing and examination of the physical evidence...