Oliver v. State

Statement on the Appeal

Staton, J.

Harry Oliver was found guilty by an Allen Circuit Court jury of selling obscene magazines. He received a fine of $1,000.00 and a sentence of thirty (30) days in the Allen County Jail.¹ His motion to correct errors raises these questions on appeal :²

1. Did the trial court commit reversible error by instructing the jury that the standard for determining obscenity is the local community standard rather than the national community standard?

2. Did the Allen Circuit Court commit reversible error when it assessed a harsher punishment than the Fort Wayne City Court?

We reverse the trial court for instructing the jury that the local community standard should be used in determining obscenity. Assessing a harsher punishment than the Fort Wayne City Court is an additional error that has been conceded by the State. Only question one will be discussed under Statement of the Law in the opinion that follows.

STATEMENT OF THE FACTS: Harry Oliver worked as a clerk in the Adult Book Store located at 1213 South Calhoun Street in Fort Wayne, Indiana. On December 16, 1969, Ronald D. Snyder, a plainclothes police officer, entered the Adult Book Store at approximately 12:15 P.M. and paid his $1.00 admission fee. Officer Snyder was a member of the Fort Wayne City Police Vice and Narcotics Squad. Browsing around the store magazine racks for approximately ten minutes, he selected five magazines which were enclosed in clear plastic envelopes. These magazines were entitled: Naked Now, Nude Living #53, Nudifax, Nude Living #55 and Amateur Jaybird. Officer Snyder purchased the five magazines from Harry Oliver at the checkout counter. On December 23, 1969, an affidavit charging Harry Oliver with selling obscene magazines was issued. His trial before the Fort Wayne City Court resulted in a finding of guilty. He appealed the finding of guilty, $500.00 fine and ten [10] day sentence in the Allen County Jail to the Allen Circuit Court where he pleaded not guilty and had a trial by jury. This jury trial, which ended on September 18, 1971, resulted in a second finding of guilty. He received a $1,000.00 fine and a sentence of thirty [30] days in the Allen County Jail. His motion to correct errors was filed on November 24, 1971 and the trial court overruled his motion to correct errors on March 14, 1972. This appeal was distributed to this Court fully briefed on August 23, 1972 and oral argument was completed on September 14, 1972.

STATEMENT OF THE ISSUES: Only two issues will be considered. These issues are:

1. Did the trial court commit reversible error by instructing the jury that the standard for determining obscenity is the local community standard rather than the national community standard ?

2. Did the Allen Circuit Court commit reversible error when it assessed a harsher punishment than the Fort Wayne City Court?

The State of Indiana has conceded in oral argument that the punishment assessed by the Allen Circuit Court was erroneous. A reversal of the trial court on these grounds would only require a remand for resentencing. Our Statement on the Law which follows will be on the first issue only.

STATEMENT OF THE LAW: Harry Oliver contends . . that the court erroneously charged the jury that the community standard to be applied was local rather than national in making a determination of obscenity.” This contention is founded upon Instruction No. 12 which states:

“You are further instructed that the standard to be applied in this case is not what may or may not have been held to be obscene in other jurisdictions but what is acceptable in the local community. You as jurors represent the average members of this community and, as the triers of fact, are charged with the responsibility of making such determination, guided by the evidence presented and by your individual and collective awareness of the standards and norms of the community.”

The record shows that Harry Oliver’s counsel objected to Instruction No. 12 as follows:

“Now, 12?

“Mr. Piggott: Objection. It’s not a correct statement of the law.

“The Court: It’s the crux of the whole thing. No. 13.

“Mr. Piggott: No objection.”

We agree with the above contention and stated objection.

The Supreme Court of Indiana in Stroud v. State (1971), 257 Ind. 204, 273 N.E.2d 842, 847 stated:

“From the foregoing discussion, the standard for judging obscenity, as developed by the Supreme Court of the United States in Roth v. United States, supra, and subsequent decisions, is as follows:

“ (2) The material is patently offensive because it affronts contemporary community standards relating to the description or reproduction of sexual matters, in this regard the material must affront contemporary national standards rather than the standards of the particular community from which the case arose;” (Our emphasis)

The State contends that Stroud v. State, supra, is not susceptible to retroactive application. This contention is stated as follows in the State’s brief:

“In passing, the State would note that any requirement of the use of a national standard stemming from language in Stroud v. State, decided October 15, 1971, would not be applicable to the trial of this case, occurring in September of 1971, unless Stroud were given retroactive application.”

If the Supreme Court of Indiana had been deciding an entirely new question of law in Stroud v. State, supra, the State’s retroactive argument would have merit. This same question of law was decided in 1964 when the Supreme Court of the United States handed down an opinion in Jacobellis v. Ohio (1964), 378 U.S. 184, 192-195. The Court stated:

“It has been suggested that the ‘contemporary community standards’ aspect of the Roth test implies a determination of the constitutional question of obscenity in each case by the standards of the particular local community from which the case arises. This is an incorrect reading of Roth. . . .

“We do not see how any ‘local’ definition of the ‘community’ could properly be employed in delineating the area of expression that is protected by the Federal Constitution. MR. JUSTICE HARLAN pointed out in Manual Enterprises, Inc., v. Day, supra, 370 U.S., at 488, that a standard based on a particular local community would have ‘the intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards of decency’. . . .

“. . . The Court has explicitly refused to tolerate a result whereby ‘the constitutional limits of free expression in the Nation would vary with state lines,’ Pennekamp v. Florida, supra, 328 U.S., at 335; we seen even less justification for allowing such limits to vary with town or county lines.”

Retroactiveness is an argument without merit. We reject it.

DECISION OF THE COURT: The trial court instructed the jury to determine obscenity by a condemned standard: the standard of the particular local community from which the case arises. This is reversible error. The judgment of the trial court should be and the same is hereby reversed with instructions to grant the Appellant a new trial.

Hoffman, C.J. and Sharp, J., concur.

Note. — Reported at 289 N.E.2d 545.

1 . IC 1971, 35-30-10-1; Ind. Ann. Stat. § 10-2803 (Burns 1972 Supp.).

2 . Harry Oliver’s motion to correct errors raised a total of five questions for determination by this court. We are reversing the trial court and need not extend the length of this opinion discussing the three additional questions raised. The issues discussed are dispositive of the appeal. Lash v. Wright (1972), 153 Ind. App. 299, 287 N.E.2d 255.