Lewis v. State

726 N.E.2d 836, 2000 Ind. App. LEXIS 508, 2000 WL 366307
CourtIndiana Court of Appeals
DecidedApril 11, 2000
Docket49A02-9901-CR-34
StatusPublished
Cited by13 cases

This text of 726 N.E.2d 836 (Lewis v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis v. State, 726 N.E.2d 836, 2000 Ind. App. LEXIS 508, 2000 WL 366307 (Ind. Ct. App. 2000).

Opinions

OPINION

STATON, Sr. Judge

Following a jury trial, Malcolm Lewis appeals his convictions for disseminating [840]*840matter harmful to minora and conducting a performance harmful to minors, both Class D felonies.1 Lewis raises eleven issues on appeal, which we consolidate and restate as ten.

I. Whether the evidence is sufficient to support his convictions.
II. Whether the trial court abused its discretion by denying Lewis a discovery request.
III. Whether the trial court abused its discretion by denying Lewis’s request for a special voir dire procedure.
IV. Whether fundamental error occurred because some of the jurors were unable to hear part of the testimony of the State’s witnesses.
V. Whether the trial court erred by denying Lewis’s motion for a mistrial based upon an out-of-court communication between a witness and several jurors.
VI. Whether the trial court erred by denying Lewis’s motion for mistrial based upon a juror’s observation of Lewis in the presence of a deputy near a holding cell.
VII. Whether the jury’s verdicts were inconsistent.
VIII. Whether Lewis’s sentence is manifestly unreasonable.
IX. Whether the trial court abused its discretion by imposing both enhanced and consecutive sentences.
X. Whether the totality of the circumstances demonstrates a denial of due process.

We affirm.

The facts most favorable to'the verdict reveal that Lewis showed a videotape to the fourteen-year-old niece of his girlfriend. The videotape showed Lewis on a bed naked. It then showed a woman entering the room, and Lewis and the woman began kissing. The victim did not want to watch the tape, and she fell asleep on the floor. Thereafter, Lewis called the victim’s name, and she awoke. Lewis was standing over her and exposing his penis. Lewis was convicted of disseminating matter harmful to minors and conducting a performance harmful to minors. This appeal followed.

I.

Sufficiency of the Evidence

Lewis argues that the evidence is insufficient to support his convictions. When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind.1995), reh. denied. We look to the evidence and the reasonable inferences therefrom that support the verdict. Id. The conviction will be affirmed if evidence of probative value exists from which a jury could find the defendant guilty beyond a reasonable doubt. Id.

Lewis was convicted of disseminating matter harmful to minors and of conducting a performance harmful to minors. As to the first crime, the State was required to show that Lewis “knowingly or intentionally ... disseminate[d] matter to minors that is harmful to minors.” IC 35-49-3-3(1). As to the second crime, the State was required to prove that Lewis “knowingly or intentionally ... engage[d] in or conducted] a performance before minors that is harmful to minors.” IC 35-49-3-3(4). Ind.Code § 35-49-2-2 (1993) defines when matters or performances are harmful to minors.

A matter or performance is harmful to minors for purposes of this article if:

(1) it describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sado-masochistic abuse;
(2) considered as a whole, it appeals to the prurient interest in sex of minors;
[841]*841(3) it is patently offensive to prevailing standards in the adult community as a whole with respect to what it is suitable matter for or performance before minors; and
(4) considered as a whole, it lacks serious literary, artistic, political, or scientific value for minors.

Lewis first argues that the State failed to present any evidence regarding whether the matter he disseminated or the performance he conducted was patently offensive to prevailing standards in the adult community. The State did not present expert testimony or other evidence specifically directed toward proving prevailing community standards. Lewis argues that without this evidence the jury was left to impose its own standards which might not have reflected prevailing standards in the adult community. Lewis concludes that without some type of evidence regarding prevailing community standards, the evidence does not support his conviction.

Indiana’s appellate courts have not yet decided whether the State must provide evidence of community standards in prosecutions for dissemination of matter or conducting performances harmful to minors. However, we find our jurisprudence regarding obscenity prosecutions informative. In prosecutions for obscenity, the State is required to prove that the matter or performance at issue is in fact obscene. Ind.Code § 35-49-3-1 (1993). A matter or performance is obscene 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.

Ind.Code § 35^49-2-1 (1993). Thus, in determining whether a matter or performance is obscene, the jury must consider community standards. However, the State need not present any evidence regarding community standards. Saliba v. State, 475 N.E.2d 1181, 1184-85 (Ind.Ct.App.1985). Rather, the obscenity determination may be based on the jury’s viewing of the allegedly offensive matter alone. Fordyce v. State, 569 N.E.2d 357, 363 (Ind.Ct.App.1991); Van Sant v. State, 523 N.E.2d 229, 240 (Ind.Ct.App.1988); Saliba, 475 N.E.2d at 1184. We find no reason for holding the State to a higher standard of proof in prosecutions for disseminating matter or conducting performances harmful to minors. In fact, Lewis concedes that this body of law is applicable to his case. Nevertheless, he asks that we overrule this precedent and require the State to present evidence regarding community standards.

Lewis cites two cases in support of his request that we overrule our precedent. First, he cites Justice Frankfurter’s concurring opinion in Smith v. California, 361 U.S. 147, 160-67, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959).

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Lewis v. State
726 N.E.2d 836 (Indiana Court of Appeals, 2000)

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Bluebook (online)
726 N.E.2d 836, 2000 Ind. App. LEXIS 508, 2000 WL 366307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-state-indctapp-2000.