State v. International Amusements ( 1977 )

HALL, Justice:

The defendants were found guilty of distributing pornographic material in violation of Utah Code Ann., Sec. 76-10-1204 (Supp. 1975). Defendants ask that their convictions be set aside, arguing that the District Court of Weber County erred in its instructions to the jury in three respects: First, that it failed to instruct the jury on the required element of scienter; second, that it failed to instruct the jury that the contemporary community standards by which the jury was to evaluate the material were statewide standards; and third, that it erred in instructing the jury that children could be considered in evaluating the conscience of the community.

The fundamental and most important right of freedom of expression is stated in clear and comprehensive language in the Constitution of the State of Utah, Sec. 1 of Article I:

All men have the inherent and inalienable right to enjoy and defend their lives and liberties . . . [other rights stated] . . . to communicate freely their thoughts and opinions, being responsible for the abuse of that right.

Section 76-10-1204, U.C.A.1953 provides that a person is guilty of distributing pornographic material when he knowingly engages in the proscribed activities of distributing pornographic material, and Section 1201(4) thereof defines “knowingly” as “an awareness, whether actual or constructive, of the character of material . . . .”

Turning now to the first assignment of error, the foregoing constitutional and statutory provisions make it clear that scienter is a necessary element of the crime charged.

A review of the record reveals that the trial court adequately dealt with the element of scienter numerous times throughout the trial beginning with the voir dire examination of the prospective jurors, again by reading the information which contained the statutory terminology as it pertains to “knowingly,” and finally by way of its entire instructions to the jury and specifically number 10, 20 and 24 dealing with mental state, circumstantial evidence, and the integral nature of the instructions, respectively.

The fact that defendants failed to take exception to any claimed omissions in the court’s instructions to the jury also bears upon this appeal. State v. Kazda, Utah, 545 P.2d 190 (1976),¹ holds that where a party so fails to object and furnish a proper request to supply any claimed deficiency in instructions he is precluded thereafter from contending error.

There is, of course, an exception to the foregoing principle, and that is, if the giving or failure to give certain instructions is so palpable as obviously to reflect prejudice amounting to denial of due process.² However, such is not the case here, and any error that may exist in the court’s instructions is not prejudicial error. The instructions when viewed as a whole, and all of the trial proceedings, clearly cover the element of scienter as it pertains to all defendants.³

In regard to the interpretation of Section 76-10-1201(12), U.C.A.1953 (Supp. 1975), the trial court properly determined that the same did not require the application of a statewide standard. The wording of the statute clearly establishes a local standard as opposed to a statewide standard by adopting the following language:

those current standards in the vicinage where an offense alleged under this act has occurred, is occurring, or will occur.

Although the geographic area is not specifically described, the use of the term “vici-nage” is clearly lesser in area than the total confines of the State of Utah. Webster defines “vicinage” as an adjacent, neighboring, or surrounding district; a limited area; neighborhood, or vicinity.⁴ The trial court logically determined that such was the jurisdictional area from which the jury was drawn. It is not reasonable to view it otherwise, since, as a practical matter, how could any “statewide” standard applied by a St. George, Utah, jury, for example, be the same as a “statewide” standard applied by an Ogden, Utah, jury? This particular point was discussed in Jenkins v. Georgia⁵ where the Court stated:

. Miller held that it was constitutionally permissible to permit juries to rely on the understanding of the community from which they came as to contemporary community standards, and the States have considerable latitude in framing statutes under this element of the Miller decision. A State may choose to define an obscenity offense in terms of “contemporary community standards” as defined in Miller without further specification, as was done here, or it may choose to define the standards in more precise geographic terms, as was done by California in Miller. [Citing Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973)].

As to the equal protection concern that an act could be found to be criminal in one state area and not in another, the case of Hambling v. U. S.⁶ had this to say:

A juror is 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 Hambling case reasonably infers that merely because findings of one jury may differ from another on identical fact situations that equal protection does not suffer and that a jury should be able to determine what effect alleged pornographic material would have on an average person within the community, without regard to age, sex, etc., and this goes to the last point on appeal, i. e., whether the jury instruction which made a reference to children was in error.

It must be specifically noted that the age limits of those persons having access to the alleged pornography was not an issue at trial. Be that as it may, it also must be specifically noted that the instruction in question, as given, was extracted nearly verbatim from the statute⁷ which reads as follows:

“In any prosecution dealing with an offense relating to pornographic material or performances, or dealing in harmful material, the question whether material or a performance appeals to prurient interest in sex shall be determined with reference to average adults or average minors as the ease may be.” [Emphasis added.]

The adoption of this language in the instruction was clearly an attempt to clarify and define the classification of average person. It certainly was not prejudicial in nature, particularly in view of the fact that age was never an issue at trial. There is no reason to believe that the jurors seized upon this singular reference to minors and solely based their judgment thereon, and it is not reasonable to believe that the trial result would have been different had no such reference been made.

Affirmed.

ELLETT, C. J., and CROCKETT, J., concur.

1 . See also State v. Villiard, 27 Utah 2d 204, 494 P.2d 285 (1972), which cites a long line of authority, and see also State v. Smith, 45 Utah 381, 146 P. 286 (1915).

2 . See State v. Cobo, 90 Utah 89, 60 P.2d 952 (1936).

3 . 23A C.J.S. Criminal Law § 1321(1).

4 . Webster’s Third New International Dictionary of the English Language, Unabridged, 1961.

5 . 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974).

6 . 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

7 .Section 76-10-1203(2), U.C.A.1953 (Supp. 1975).