BUCHANAN, Judge.
CASE SUMMARY
Appellants-defendants Rocky L. Fordyce and Aeros Entertainment Corporation (hereinafter collectively referred to as For-dyce) appeal their convictions for distributing obscene matter that describes sexual conduct involving a person under sixteen years of age,1 a class D felony, claiming Indiana's obscenity statute violates both the United States and Indiana Constitutions, that the court erred in not admitting a comparable book into evidence, and that the evidence was insufficient to support the obscenity conviction and the enhancement of the offense to a felony.
We affirm.
FACTS
On September 10, 1987, Officer Rick Gri-ner of the Anderson Police Department entered the Aeros Adult Bookstore in downtown Anderson where he purchased two paperback books entitled Incest Mommy and Dog Fun For Daughter.
The book Incest Mommy tells a story of a mother seducing her son for his first sexual experience and details various sexual activities that take place between the two. Dog Fun For Doughter describes a teenage girl, her mother, and a friend of the girl, and the sexual experiences they have with a German Shepherd and a Doberman Pinscher. Dog Fun For Daughter also features a teenage boy who makes obscene calls to the daughter and her mother, and then, at the conclusion of the book, shows up to engage in a sexual romp with the mother.
The stories in both books are fictional. The books contain no photographs, but consist only of text and advertisements for various adult products. While Dog Fun For Daughter refers to certain characters as "teens" and "teenagers," no specific age is provided. Incest Mommy is even less specific; while the book refers to certain childlike traits exhibited by the son, i.e. his "racing" around the house, his lack of physical development, etc., there is no direct indication of the age of the characters.
Based on the content of the books, For-dyce was arrested and charged with selling obscene materials which depicted or described persons under sixteen years of age. Following a jury trial, Fordyce was convicted and given a three year sentence and ordered to pay a $5,000 fine or, in the alternative, make a $5,000 contribution to charity. All but sixty days of the sentence was suspended.
ISSUES
Fordyce raises several issues for our consideration, which we restate as follows:
1. Whether Indiana's obscenity statute violates the first and ninth Amendments of the United States Constitution?
2. Whether Indiana's obscenity statute violates Article I, Section 9 of Indiana's Constitution?
[359]*3598. Whether the court erred by not admitting into evidence a book comparable to the ones alleged to be obscene?
4. Whether the evidence was sufficient to support the conviction?
5. Whether the evidence was sufficient to support the enhancement of For-dyce's sentence?
The dissenting opinion raises sua sponte the appropriateness of the trial court's charitable option sentencing order and concludes that it was improper for the reasons addressed in Judge Sullivan's dissenting opinion in Campbell v. State (1990), Ind.App., 551 N.E.2d 1164, a case in which the defendant, as here, did not directly raise the issue. We are aware of no authority deeming a charitable option sentencing order to be fundamental error, and therefore consider the issue to be waived by Fordyce's failure to raise it on appeal. See Prentice v. State (1985), Ind., 474 N.E.2d 496.
DECISION
ISSUE ONE-Whether Indiana's statutory definition of obscenity violates the first and ninth Amendments of the United States Constitution?
PARTIES' - CONTENTIONS-Fordyce claims that due to recent modifications made by the United States Supreme Court to the Miller obscenity standard in Pope v. Tilinois 2, Indiana's statutory definition of obscenity now violates the first and ninth Amendments of the United States Constitution. The State responds that Fordyece's analysis is based on minority positions taken by certain justices and that those views do not represent a reversal of the Miller standard.
CONCLUSION-Indiana's statute does not violate the first and ninth Amendments to the United States Constitution.
The genesis of Indiana's statutory definition of obscenity is the tripartite test developed by the United States Supreme Court in Miller v. California (1973), 413 U.S. 15, 93 S.Ct. 2607, 37 LEd.2d 419:
"The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra [408 U.S. 229] at 230 [92 S.Ct. 2245, 2246, 33 LEd.2d 312 (1972)], quoting Roth v. United States, supra [354 U.S. 476] at 489 [77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498 (1957)]; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
Miller, 413 U.S. at 24, 93 S.Ct. at 2615.
Shortly thereafter, the Indiana legislature codified almost verbatim the Miller obscenity standard. See 1975 Ind.Acts Pub.L. No. 841-1975. Only slightly revised once since its original enactment,3 IC 85-49-2-1 (1988) now provides:
See. 1. A matter or performance is obscene for purposes of this article if:
(1) the average person, applying contemporary community standards, finds that the dominant theme of the matter or performance, taken as a whole, appeals to the prurient interest in sex;
(2) the matter or performance depicts or describes, in a patently offensive way, sexual conduct; and
(3) the matter or performance, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Fordyce asserts that Pope renders unconstitutional Indiana's statutory definition of obscenity. Reaching far he cites Justice Scalia's concurrence and Justice Stevens' dissent in Pope as a basis for reexamining the Miller obscenity standard, an examination he claims should lead this court to conclude that our statutory definition of obscenity violates the first and ninth [360]*360Amendments of the United States Constitution.
In our opinion, Pope does not vitiate the Miller obscenity standard. It merely clarifies that while the first two prongs of the Miller test are to be applied with reference to community standards, the third prong is to be utilized by employing & "reasonable person" test:
"[the proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole."
Pope, 481 U.S. at 500-01, 107 S.Ct. at 1921 (emphasis supplied).
The jury in this case was instructed in accordance with the Miller obscenity standard as clarified by Pope,4 record at 183, which was perfectly proper. Fordyce does not contend the instruction was incorrect, but argues that having been so instructed the jury could not have reached the conclusion the books were obscene. He offers no compelling reasoning for this conclusion or for his assertion that Pope, which reaffirms the Miller obscenity standard, makes unconstitutional Indiana's definition of obscenity which is based on the Miller standard. He merely reweighs the evidence.
ISSUE TWO-Whether Indiana's obscenity statute violates Article I, Section 9 of Indiana's Constitution?
PARTIES' - CONTENTIONS-Fordyce and the Indiana Civil Liberties Union (ICLU)5 argue that obscenity is protected speech under the free speech clause of Indiana's Constitution and that, therefore, Indiana's statute criminalizing the dissemination of obscene materials is unconstitutional. The State responds that, even adopting the historical analysis urged by Fordyce and the ICLU, obscene speech is not protected by Indiana's Constitution.
CONCLUSION-Indiana's obscenity statute does not violate the free speech clause of Indiana's Constitution.
Article I, Section 9, of the Indiana Constitution provides:
"No law shall be passed restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever; but for the abuse of that right, every person shall be responsible."
Fordyce and the ICLU urge that this court adopt an interpretation of this clause similar to that reached by the Oregon supreme court in State v. Robertson (1982), 293 Or. 402, 649 P.2d 569. Taking an historical approach, the Oregon supreme court concluded that Oregon's Constitution prohibits the enactment of any law, backed by punitive sanctions, which forbids speech or writing unless it can be shown that the prohibition falls within an historically established exception to Oregon's free speech guarantee. Robertson, supra.6
The Oregon supreme court later applied this analysis to the issue of obscenity and concluded that a statute making the dissemination of obscene materials a crime was unconstitutional because obscene expression does not fall within any historical exception to the plain wording of the Ore[361]*361gon Constitution. Oregon v. Henry (1987), 302 Or. 510, 732 P.2d 9. Thus, the Oregon supreme court concluded that because restrictions on sexually explicit and obscene expression between adults were not well established at the time Oregon's Constitution was adopted, obscenity was not an historical exception to freedom of speech, and, thus constitutes protected speech under Oregon's Constitution.
By this precedent, Fordyce and the ICLU would have us apply the Oregon analysis to conclude that the framers of Indiana's current constitution did not intend for obscenity to be an exception to the free speech guarantee. In support they cite the fact that obscenity was never discussed as an exception to the free speech clause during the debate on this subject and argue that at the time the Constitution was drafted, Indiana did not have a consistent tradition of regulating obscenity. In addition, they contend that because the language employed in the free speech clause can be traced to the Indiana Constitution of 1816,7 other state constitutions of earlier vintages, and even the 1789 French Declaration of the Rights of Man and Citizen, the framers of Indiana's free speech clause intended to adopt the principles embodied in those earlier guarantees, including the protection afforded obscene expression.
They reach too far. First, it hardly seems significant that obscenity was not discussed as an exception to the free speech clause at Indiana's Constitutional Convention of 1851. See Journal of the Convention of the State of Indiana to Amend the Constitution (1851). Such an omission is understandable in view of the overall task involved in adopting a new constitution. Statutes regulating obscenity were already in place in Indiana. See Laws of Indiana, 1848, Chapter 58, Article IH, Section 122, and in other states which had similar free speech provisions in their constitutions.8
Indiana had a consistent tradition of regulating obscenity prior to 1851. In 1848, the Indiana legislature enacted a statute to restrict the dissemination of obscene materials:
"Sect. 122. If any person shall vend, or cause to be vended, any playing cards, or any obscene book, pamphlet, or print, he shall, on conviction thereof, be fined in any sum not less than one dollar nor more than three dollars for every such pack of cards, book, pamphlet, or print vended."
Laws of Indiana, 1848, Chapter 58, Article III, Section 122.
In 1852, one year after the adoption of Indiana's current constitution, this statute was reenacted as part of a comprehensive eriminal code:
"See. 52. Every person who shall by himself or agent, print, vend, exhibit or circulate any obscene book, pamphlet, print or picture, shall upon conviction, be fined not exceeding five hundred dollars, and if the exhibition be made to a female, imprisonment not exceeding - three months may be added.
Sec. 58. All persons engaged in vending, circulating or exhibiting or in any way preparing such obscene book, pamphlet, print or picture, shall be deemed, and punished as principals."
Ind.Rev.Stat., 1852, Chapter 8, Misdemeanors §§ 52-53.
. Although the legislature did not provide a statutory definition of the term "obscene," an examination of dictionaries from that era shows that one dictionary defined the term as "immodest; disgusting" and defined "obscenity" as "impurity of thought or language; lewdness." Walker's Critical Pronouncing Dictionary and Expositer of the English Language (1844). Webster's Dictionary (1856) defined "obscene" as "offensive to chastity and delicacy; impure; expressing or presenting to the mind or view something which delicacy, purity, and decency forbid to be exposed; [362]*362as obscene language; obscene pictures." Obviously our forefathers were concerned with the degrading effects of obscenity on society.
The enactment of obscenity statutes before and immediately following Indiana's adoption of its current constitution provides compelling evidence that obscenity was not intended to be cloaked with the protection of the free speech clause. Our conclusion is not without persuasive precedent. In People v. Ford (1989), Colo., 773 P.2d 1059, the Colorado supreme court addressed the issue of whether its obscenity statute violated the free speech clause of its constitution, which clause is similar to the one contained in both Oregon's and Indiana's Constitutions.9 The Colorado court observed that at the time its constitution was written, obscenity proscriptions were prevalent and the dissemination of obscene materials was prohibited in other jurisdictions which had adopted constitutional provisions similar or identical to Colorado's. Because of this historical background, the Colorado supreme court concluded that the framers of its constitution did not consider obscenity to be constitutionally protected speech. Ford, supra.
Fordyce and the ICLU have failed to meet the burden required to rebut the presumption that Indiana's statute regulating obscenity is constitutional. See Miller v. State (1987), Ind., 517 N.E.2d 64.
ISSUE THREE-Whether the court erred by not admitting a book, comparable to the offending material, into evidence in order to demonstrate community acceptance of the books?
PARTIES' - CONTENTIONS-Fordyce argues that the trial court erred in not admitting a comparable book which he claims had been accepted by the community. The State counters that the use of sales figures, by itself, is not sufficient to show that the community had accepted the book, and that any error in excluding the book was harmless because a substantially similar book to the excluded book was admitted into evidence.
CONCLUSION-The trial court did not err in refusing to admit a comparable book into evidence.
A trial court's decision to exclude evidence which is arguably relevant will not be reversed unless there is a showing that the trial court's discretion was manifestly abused and that the defendant was denied a fair trial. Jackson v. State (1986), Ind., 490 N.E.2d 1115. To establish a foundation for the admission of comparison evidence on the issue of community standards, there must be a showing that the proffered evidence (1) is similar to the material in issue, and (2) enjoys a reasonable degree of community acceptance. Van Sant v. State (1988), Ind.App., 523 N.E.2d 229; United States v. Womack (D.C.Cir.1974), 509 F.2d 368, cert. denied (1975), 422 U.S. 1022, 95 S.Ct. 2644, 45 L.Ed.2d 681; See also Saliba v. State (1985), Ind.App., 475 N.E.2d 1181, trans. denied, Ind., 484 N.E.2d 1295.
In this case, the trial court concluded that the content of the proffered book, My Secret Garden, was substantially similar to that contained in Dog Fun For Daughter and Incest Mommy. However, the trial court found that Fordyce had failed to establish community acceptance of My Secret Garden.
At trial, Fordyce compared sales figures of My Secret Garden to other books which he claimed time had deemed to be classics.10 Fordyce introduced evidence that over a nineteen month period one store in Anderson sold twenty copies of My Secret Garden, a sales figure higher than any of the six classics sold at the same store over the same period of time. Record at 772. Additionally, over the same nineteen month period, 15,389 copies of My Secret Garden [363]*363were sold nationwide. Record at 772. This, Fordyce claims shows the book was two-and-a-half times more popular in Madison County than nationwide, thus indicating the book had been "accepted" in Madison County.
We need not decide whether the sales figures offered by Fordyce establish that My Secret Gorden was accepted by the community and, therefore, should have been admitted into evidence as comparison materials. Although Fordyce contends the exclusion of the book prevented the jury from accurately determining community standards with respect to obscenity, the trial court did admit a book entitled In The Babysitter's Behind (Exhibit F), as a comparable book accepted by the community. The exclusion of evidence is not erroneous if substantially similar evidence is subsequently introduced and admitted. Underwood v. State (1989), Ind., 535 N.E.2d 118. Fordyce has failed to show he was prejudiced by the trial court's decision to exclude My Secret Garden from evidence.
ISSUE FOUR-Whether the evidence was sufficient to support the convietion for distributing obscene matter?
PARTIES' - CONTENTIONS-Fordyce argues that the State failed to offer evidence of community standards, or to show that no reasonable person would find value in the books. The State says that such proof is not necessary. G
CONCLUSION-The evidence was sufficient to support the conviction for distributing obscene matter. Despite Fordyce's arguments to the contrary, the State is not required to submit expert testimony in an obscenity case. Van Sant, supra; Saliba, supra. The obscenity determination may be based solely on the jury's viewing of the allegedly offensive material Van Sant, supra; Saliba, supra. In this case both of the books, which contain explicit descriptions of various sexual activities including bestiality, rape, incest, and sodomy, were admitted into evidence and available for the jury to review. Surely, the jury had ample evidence before it to conclude the books were obscene.
ISSUE FIVE-Whether the evidence was sufficient to support the trial court's conclusion that the books depicted or described a person under 16 years of age?
PARTIES' - CONTENTIONS-Fordyce urges this court to conclude that the enhancement portion of Indiana's obscenity statute should only be applied to obscene matter which depicts or describes "real" persons under the age of sixteen. In the alternative, Fordyce asserts that the evidence fails to show that the characters in the book were below sixteen years of age. The State counters that the enhancement provision should not be limited to just actual persons and that the evidence sufficient ly established that the characters were younger than sixteen.
CONCLUSION-The enhancement portion of Indiana's obscenity statute applies to fictional as well as real people, and the evidence was sufficient for the jury to conclude that the people described in the books were under sixteen years of age.
Before deciding whether the evidence is sufficient to support the enhancement of Fordyee's sentence, we need to interpret IC 85-49-8-1:
"A person who knowingly or intentionally:
(1) sends or brings into Indiana obscene matter for sale or distribution; or
(2) offers to distribute, distributes, or exhibits to another person obscene matter; commits a 'Class A misdemeanor. However, the offense is a Class D felony if the obscene matter depicts or describes sexual conduct involving any person who is or appears to be under sixteen (16) years of age."
(Emphasis supplied.)
Here there is no showing that the characters described in Incest Mommy and Dog Fun For Daughter were in any way based on actual living human beings. Rather, it is uncontested that the characters are figments of the imagination of the authors.
Given that premise, Fordyce focuses on the word "person" used in the statute and argues that it should be interpreted to [364]*364mean "actual persons" who are or appear to be below sixteen years of age. Appellee's Brief at 22. The State, however, draws our attention to the language "depicts or describes" as used in the statute and provides a dictionary definition of "depicts" as "to form a likeness of by drawing or painting ... to represent, portray, or delineate in other ways than in drawing or painting." Appellant's Brief at 8, quoting Webster's Third New International Dictionary (Merriam-Webster 1986).
The fundamental rule of construction is that a statute must be construed to give effect to legislative intent. State ex rel. Bynum v. LaPorte Superior Court (1973), 259 Ind. 647, 291 N.E.2d 355. We are to construe a statute according to its plain meaning, St. Germain v. State (1977), 267 Ind. 252, 369 N.E.2d 931, and words and phrases are to be taken in their plain, ordinary and usual sense unless a different purpose is manifested by the statute itself. Overlade v. Wells (1955), 234 Ind. 436, 127 N.E.2d 686.
And so we look at the word "person" interpreted by Fordyce. Our construction of the statute militates against a keyhole view which focuses on only one word. Rather, it is the phrase "depicts or describes a person who is or appears to be below sixteen years of age," which should be examined. Taking the plain and ordinary meaning of this language, it would seem that the legislature intended the enhancement portion of the statute to apply to situations in which the obscene matter describes human beings below a certain age. Clearly the characters portrayed in Dog Fun For Daughter and Incest Mommy were represented as human beings and, thus, fall within the plain meaning of IC 35-49-38-1. There is nothing to indicate that the legislature specifically or by inference intended the enhancement portion of the statute not to apply to situations involving the dissemination of obscene material based in fiction.
So now we must determine whether the evidence sufficiently establishes that the characters in the obscene books "are or appear to be under sixteen years of age." The book Incest Mommy describes an incestuous relationship between a boy called "Johnny" and his "mommy." In the book, the mother scolds her son for "racing" through the house and almost knocking a laundry basket out of her arms. Record at 342-48. Later the mother tells Johnny that he is "getting to be a big boy." Record at 344. During the course of Johnny's seduetion, the author describes the "seant hair" which had begun to "sprout" in Johnny's pubic region. Record at 352.
In Dog Fun For Daughter the author refers to the main character Kathy Ross as a "young girl" who is "face{d] [with] the fragile moment between childhood and maturity" and is "trying to find out what makes her budding body tick...." Record at 428. The book also refers to her and two other characters as a "teenager" and "teen." Record at 423, 463, 478.
While neither book explicitly indicates the age of the characters, it is only necessary that an inference may be drawn from the evidence which will support the fact-finder's conclusion. See Woodson v. State (1989), Ind., 542 N.E.2d 1331. With respect to Incest Mommy and Dog Fun For Daughter an unmistakable inference can be drawn that the books describe a young boy and young girl on the threshold of puberty and under sixteen years of age. Under such circumstances, the evidence supports the enhancement of Fordyce's sentence.
Judgment affirmed.
SHIELDS, P.J;, concurs.
SULLIVAN, J., concurs in part and dissents in part with opinion.