Van Sant v. State, 11A01-8711-CR-281

Docket NºNo. 11A01-8711-CR-281
Citation523 N.E.2d 229
Case DateMay 17, 1988
CourtCourt of Appeals of Indiana

Glenn A. Stanko, Reno, O'Byrne & Kepley, P.C., Champaign, William G. Smock, Terre Haute, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Chief Judge.


Victoria Van Sant appeals from the Clay County Superior Court her conviction for Distribution or Exhibition of Obscene Matter, Indiana Code section 35-49-3-1. We affirm.


On October 31, 1986, an adult bookstore opened in Clay County, northwest of the intersection of Interstate 70 and State Road 59. The bookstore was known as "BookaRama". On November 1, 1986, Clay County Prosecutor Fritz Modesitt met with Clay County Sheriff Wayne Lucas and Deputies Doug Smiley and Michael Lankford. At this meeting the BookaRama bookstore was discussed. Sheriff Lucas instructed Deputies Smiley and Lankford to purchase magazines from the BookaRama bookstore, and gave each Deputy Forty Dollars ($40).

After the meeting concluded Deputy Smiley carried out Sheriff Lucas's instructions. Deputy Smiley went to the BookaRama bookstore and purchased three (3) magazines. All of the magazines purchased were visible from the register counter, and none were covered to prevent viewing of the cover or the contents. The store contained several racks of magazines. Smiley picked three (3) magazines from the racks, took them to the register, and placed them face up on the counter. Victoria Van Sant, who was employed at the BookaRama bookstore as a cashier, picked up the magazines to determine the price, rang up the sale, and placed the magazines in a paper bag. Deputy Smiley paid for the magazines, and left the store.

After Deputy Smiley made his purchases, Deputy Lankford arrived at, and entered the BookaRama bookstore. Deputy Lankford observed that the store contained several racks of magazines and sexual devices. Deputy Lankford picked out two (2) magazines, took them to the counter, and placed them face down on the counter. Van Sant turned over the magazines, found the prices and rang up the sale. The magazines were not covered to prevent viewing of the cover or contents. Deputy Lankford paid for the magazines and left the store.

Van Sant was charged by information with two (2) counts of Offer, Distribution and Exhibition of Obscene Material, under Indiana Code section 35-49-3-1(2). 1 On

May 18, 1987, a jury trial commenced with the selection of jurors. The trial was conducted on May 19 and 20, 1987, and concluded when the jury returned verdicts of guilty on both counts charged against Van Sant. On June 15, the trial court sentenced Van Sant. Van Sant appeals her convictions.


Van Sant raises five (5) issues on appeal:

1. Whether the Indiana Obscenity Statute is unconstitutionally vague or overbroad?

2. Whether the trial court erred by making certain rulings on final instructions?

3. Whether the trial court erred by excluding the defendant's evidence relating to the availability of comparable sexually explicit materials in Clay County?

4. Whether the trial court abused its discretion by refusing to send exhibits and instructions to the jury room?

5. Whether sufficient evidence exists to support Van Sant's convictions? 2

Issue One

Van Sant argues that Indiana's Obscenity Statute is overbroad or vague on its face in violation of the First and Fourteenth Amendments to the United States Constitution and Article 1 section 9 of the Indiana Constitution. In reviewing a statute based upon a constitutional challenge this court presumes constitutionality. Whitewater Valley Canoe Rental, Inc. v. Bd. of Franklin Co. Commr's (1987), Ind.App., 507 N.E.2d 1001, 1004, trans. denied; Wallman v. State (1981), Ind.App., 419 N.E.2d 1346, 1348. If the statute's wording supports a construction that is constitutional, that construction must be adopted. Wallman, 419 N.E.2d at 1348-49. In order to satisfy the due process requirements of the United States and Indiana Constitutions, a penal statute must be sufficiently explicit so as to inform individuals of the consequences of contemplated conduct. Whitewater Valley Canoe, 507 N.E.2d at 1004; Id. at 1349. Thus, if the challenger establishes that the statute forbids conduct in terms so vague that persons of ordinary intelligence must necessarily guess at the statute's meaning and differ as to its application, then the statute violates due process of law, is void for vagueness, and unconstitutional. Whitewater Valley Canoe, 507 N.E.2d at 1004; Porter v. State (1982), Ind.App., 440 N.E.2d 690, 692; Wallman, 419 N.E.2d at 1349; Ford v. State (1979), 182 Ind.App. 224, 228, 394 N.E.2d 250, 253, trans. denied; Riley v. State (1979), 180 Ind.App. 540, 542, 389 N.E.2d 367, 369, trans. denied. Although a statute may pass a vagueness challenge, it may still be unconstitutional under an overbreadth challenge. 16A Am.Jur.2d Constitutional Law Sec. 460 (1979). An overbreadth challenge asserts that the statute is not drawn in sufficiently narrow terms and foreseeably prohibits legitimate conduct. Andrews v. State (1987), Ind.App., 505 N.E.2d 815, 822-23; Porter, 440 N.E.2d at 693.

In the present case, Van Sant argues that Indiana's Obscenity Statute is unconstitutional on both vagueness and overbreadth grounds. 3 Van Sant argues first that the statute is overbroad for failing to define the terms "prurient interest". Van Sant suggests the lack of a statutory definition allows the prohibition of materials which appeal only to a normal interest in sex. Although Van Sant correctly notes that an obscenity statute cannot prohibit material which appeals to only a normal interest in sex without violating the Constitution, 4 Indiana's Obscenity Statute does not suffer from such a defect. Indiana's Obscenity Statute tracks the United States Supreme Court's definition for obscenity as set forth in Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, and is not unconstitutionally overbroad. 5 Polykoff v. Collins (9th Cir.1987), 816 F.2d 1326, 1334-35. In Polykoff, Arizona's Obscenity Statute was challenged based upon the "prurient interest" section. The Court of Appeals for the Ninth Circuit held that the statute was not unconstitutional due to the lack of a definition. Id. A similar conclusion was reached by the second district of Illinois Court of Appeals in People v. Sequoia Books, Inc. (1987), 160 Ill.App.3d 750, 112 Ill.Dec. 545, 513 N.E.2d 1154. The court opined,

"Further, the statute is not unconstitutional because of its failure to define 'prurient interest'. The United States Supreme Court in Brockett v. Spokane Arcades, Inc. (1985), 472 U.S. 491, 505 n. 13, 105 S.Ct. 2794, 2803 n. 13, 86 L.Ed.2d 394, 407 n. 13, pointed out in footnote 13 that many State statutes leave the word 'prurient' undefined and that an obscenity statute which left the term undefined or defined only by case law has been sustained. Thus, the failure here to define 'prurient interests' is not a satisfactory ground for striking down the statute. See People v. Sequoia Books, Inc. (1987), 160 Ill.App.3d 315, 112 Ill.Dec. 54, 513 N.E.2d 468."

Sequoia Books, Inc., 160 Ill.App.3d at 756-757, 513 N.E.2d at 1159. Likewise, Indiana's Obscenity Statute is not unconstitutional on its face. Furthermore, the trial court in the present case clearly limited "prurient interest" to an abnormal interest in sex by giving Final Instruction No. 14, which provided as follows:

"A prurient interest in sex is an unhealthy, unwholesome, morbid, degrading, and shameful interest in sex. An interest in sex is normal but if the material appeals to an abnormal interest in sex it can appeal to the prurient interest."

Record, at 137. Therefore, the statute also was not applied unconstitutionally and this section of Indiana's Obscenity Statute withstands Van Sant's challenge.

Van Sant argues also that Indiana's Obscenity Statute is unconstitutional because the statutory definition of contemporary community standards is not expressly limited to the adult community. Van Sant relies on Pinkus v. United States (1978), 436 U.S. 293, 98 S.Ct. 1808, 56 L.Ed.2d 293, to support her argument. Van Sant's reliance is misplaced and her argument fails. In Pinkus the Supreme Court addressed the propriety of a jury instruction which delineated the community used to set the standards of obscenity. The Supreme Court held the instruction was improper because it expressly included children within the delineated group. Pinkus, 436 U.S. at 297, 98 S.Ct. at 1812, 56 L.Ed.2d at 298. The Supreme Court, however, did not hold that an instruction on the community standards must specifically exclude children. Furthermore, in United States v. Sanders (5th Cir.1979), 592 F.2d 788 reversed on other grounds 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 910 and United States v. Grassi (5th Cir.1979), 602 F.2d 1192 reversed on other grounds 448 U.S. 902, 100 S.Ct. 3041, 65 L.Ed.2d 1131, the Court of Appeals for the Fifth Circuit held that an express exclusion of children from the relevant community was not required. Sanders, at 796; Grassi, at 1198. Similarly, the constitution does not require that Indiana's Obscenity Statute expressly exclude children from the contemporary community standards test.

Van Sant's third challenge to Indiana's Obscenity Statute argues the "patently offensive" component of the offense is not referenced by the contemporary community standards test, and accordingly, is overbroad. Van Sant's argument fails. Although Indiana's Obscenity Statute appears to measure only the "prurient interest" portion of the offense by the contemporary community standards test, our statute tracks the guidelines set out in Miller. Therefore, Indiana's Obscenity Statute is not overbroad facially....

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