State v. Grauf

501 P.2d 345, 11 Or. App. 114, 1972 Ore. App. LEXIS 643

Opinions

THORNTON, J.

The defendant appeals from a conviction after jury trial of disseminating obscene matter in violation of former ORS 167.151.

Footnotes

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① The defendant operates a drive-in theatre in Sutherlin at which an allegedly obscene motion picture entitled “Southern Comforts” was exhibited on three consecutive evenings.

Three issues are presented by defendant’s assignments of error:

(1) Is former ORS 167.151 constitutional?

(2) Does the indictment allege facts sufficient to state a crime?

(3) Is the motion picture “Southern Comforts” obscene?

On May 25, 1971, two officers of the Douglas County Sheriff’s Department attended a regular showing of the films “Where’s Papa” and “Southern Comforts” at defendant’s drive-in theatre. Subsequently, on June 7,1971, a hearing was held in the circuit court to determine whether sufficient cause existed to warrant the seizure of the two films. After hearing evidence and viewing the films, the court ruled that the film “Where’s Papa” was not obscene. It was not seized. The court did, however, find that under the prescribed tests, the film “Southern Comforts” was of a nature that it could be found to be obscene. The defendant was subsequently indicted for disseminating obscene matter by showing “Southern Comforts.”

Defendant’s drive-in theatre is located adjacent to the junction of two highways in such a manner that films being projected on the screen can be seen by passing motorists.

The state offered testimony of two motorists who had seen portions of “Southern Comforts” while driving past defendant’s theatre. Both expressed disgust at the acts of alleged sexual deviation being performed on the screen.

There are also several private residences located in the area whose occupants can view movies being projected at the theatre. The state offered testimony of one resident who testified that she did view portions of “Southern Comforts,” found it offensive and had encountered difficulty in keeping her minor children from looking out the window at the allegedly deviant conduct being shown. There was evidence produced at the trial that during the showing of the subject film persons under the age of 18 were denied admission. However, further evidence revealed that minors ranging in age from 8 to 18 were observed viewing the showing from certain unobstructed vantage points outside the theatre enclosure. The defense offered testimony of two nearby residents. One had viewed portions of the movie from his property and was not offended by it. The other resident said that he did not see any portion of the challenged motion picture.

The movie “Where’s Papa” was advertised as carrying an “B” (Bestricted) rating, but there was no rating advertised as to “Southern Comforts.” The distributor testified that “Southern Comforts” was rated by the studio as a “shaky ‘GP’ ” (General Patronage). The testimony offered by defendant’s witnesses was that the theatre displayed, on its marquee and at the box office, a sign to the effect that the movies were for adults only, no minors (under 18) allowed.

We first consider defendant’s contention that former OBS 167.151 is unconstitutional. That issue has been decided against defendant’s position by our Supreme Court in State v. Childs, 252 Or 91, 447 P2d 304 (1968), cert denied 394 US 931 (1969).

Defendant insists, however, that Childs has in effect been overruled by Hayse v. Van Hoomissen, 321 P Supp 642 (D Or 1970), vacated on other grounds 403 US 927 (1971), wherein the United States District Court for Oregon held that OBS 167.151 is unconstitutionally overbroad. Kayse was a suit for a permanent injunction against enforcement of OBS 167.151. The United States Supreme Court vacated the judgment (403 US 927) and remanded for reconsideration in light of Younger v. Harris, 401 US 37, 91 S Ct 746, 27 L Ed 2d 669 (1971), and Samuels v. Mackell, 401 US 66, 91 S Ct 764, 27 L Ed 2d 688 (1971). Younger and Samuels involved federal court injunctions against state criminal proceedings. The Supreme Court, in setting aside these injunctions, declared that federal courts should not enjoin pending state criminal prosecutions except under extraordinary circumstances where the danger of irreparable injury is great and immediate.

On the authority of State v. Childs, supra, we hold that former OES 167.151 is constitutional.②

Defendant’s second assignment of error is that the indictment did not state facts sufficient to constitute a crime. Omitting caption and other headings, the indictment charged that the defendant

“® * * did knowingly disseminate obscene matter by then and there exhibiting, offering and agreeing to exhibit to the public an obscene motion picture, to-wit: ‘Southern Comforts’.”

Former OES 167.151(1) provides:

“No person shall knowingly disseminate obscene matter. A person disseminates obscene matter if he exhibits, sells, delivers or provides, or offers or agrees to exhibit, sell, deliver or provide, or has in his possession with intent to exhibit, sell, deliver or provide any obscene writing, picture, motion picture, device, record, material or other representation or embodiment of the obscene.”

The indictment essentially charges defendant in the language of the statute and is therefore sufficient. State v. Nussbaum, 261 Or 87, 491 P2d 1013 (1971); State v. Tracy, 246 Or 349, 425 P2d 171 (1967); State v. Zimmerlee, 5 Or App 253, 483 P2d 111 (1971), reversed on other grounds, 261 Or 49, 492 P2d 795 (1972).

We take up defendant’s third assignment, viz., that the subject motion picture is not obscene when judged by the tests applied in several recent decisions of the United States Supreme Court.

The Supreme Court has defined obscenity in Roth v. United States, 354 US 476, 489, 77 S Ct 1304, 1 L Ed 2d 1498, 1509 (1957), in the following terms:

“* * * [W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest * *

Under this definition three elements must coalesce: (1) The dominant theme of the material taken as a whole must appeal to the prurient interest in sex; (2) the material must be patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (3) the material must be utterly without redeeming social value. Redrup v. New York, 386 US 767, 770, 87 S Ct 1414, 18 L Ed 2d 515, 518, rehearing denied 388 US 924 (1967); Memoirs v. Massachusetts, 383 US 413, 418, 86 S Ct 975, 16 L Ed 2d 1, 5, 6 (1966); State v. Childs, supra at 95-96; State v. Oregon Bookmark Corp., 7 Or App 554, 555, 492 P2d 504 (1972). Further, each of these three criteria must be applied independently. Memoirs, at 419.

Commenting on the element of pruriency as that which tends to corrupt by inciting lascivious or lustful thoughts, the Ninth Circuit Court of Appeals said:

“* * * It may be to oversimplify, but it looks * * * as if ‘prurient’ is to be the talisman. And out of ‘prurient’ it would seem that obscenity is shifting from the standard of distasteful to a majority of people to a standard of disgusting, really lewd, shameful, or excites morbid interest in sex. Perhaps, the shift is from ‘bad’ to ‘awful.’

* # * *

“In short, there seems to emerge from the cases the proposition that obscenity in the standard of pruriency must really ‘smell,’ not just be of slight ‘odor.’ * * Eastman Kodak Company v. Hendricks, 262 F2d 392, 397 (9th Cir 1958).

The Oregon Supreme Court has held that the courts of this state are bound to follow the definition of obscenity used by the United States Supreme Court. State v. Childs, supra. The question of whether a particular matter is obscene is an issue of constitutional law to be determined by an independent, de novo, judgment on the facts of the ease. Jacobellis v. Ohio, 378 US 184, 188, 84 S Ct 1676, 12 L Ed 2d 793 (1964); Childs v. State of Oregon, 431 F2d 272 (9th Cir 1970), reversed 401 US 1006 (1971).

After viewing “Southern Comforts” in its entirety this court concludes that the subject film is legally obscene by the standards laid down in OES 167.151 and Both.

The plot, ostensibly the search for contestants and the staging of an impromptu beauty contest in a rural area, appears to this court to be nothing more than a vehicle employed by the producers of the film to permit the wholesale display on the screen of an endless succession of sexual acts, with substantial film footage being devoted to acts of sexual perversion. Included among the acts represented, with full sound effects, are the following: Mouth-genital sexual perversion between females, and between male and female; bestiality (sexual relations between man and animal); group fornication; group lesbianism; smoking marihuana to induce or heighten enjoyment of group lesbian acts.

We find: (1) Considered as a whole, the dominant theme of “Southern Comforts” is to appeal to the prurient interest in sex; (2) the film is patently offensive and totally lacking in any redeeming social value; and (3) as shown by the evidence, the above described exhibitions were and are contrary to the prevailing moral standards of the community, and went substantially beyond the customary limits of candor in describing or representing such matter with reference to ordinary persons.

One further contention by defendant should be considered. Defendant in his reply brief and during oral argument before this court for the first time attacks the sufficiency of the indictment on a new ground: That the indictment failed to give defendant fair notice that the location of the exhibition and the presence of minors and nonconsenting adults in the viewing audience were vital elements of the offense. Defendant has invited our attention to the very recent decision of the United States Supreme Court in Rabe v. Washington, 405 US 313, 92 S Ct 993, 31 L Ed 2d 258 (1972), and strenuously urges that this decision requires that we declare former OKS 167.151 unconstitutional as applied to him. Babe involved a Washington obscenity statute substantially similar to OKS 167.151. Defendant Rabe was convicted of showing an allegedly obscene film, “Carmen Baby,” in violation of RCW 9.68.010.③ In affirming the convic tion, the Supreme Court of Washington said that “if we were to apply the strict rules of Roth [354 US 476], the film ‘Carmen Baby’ probably would pass the definitional obscenity test if viewing audience consisted only of consenting adults.” State v. Rabe, 79 Wash 2d 254, 263, 484 P2d 917, 922 (1971). However, the court said that in the context of its exhibition (i.e., minors were viewing movie; screen visible to occupants of neighboring residences and passing motorists) the movie was obscene. The United States Supreme Court reversed the Washington Supreme Court, holding that

“# o ü a may n0-j; criminally punish, the exhibition at a drive-in theatre of a motion picture where the statute, used to support the conviction, has not given fair notice that the location of the exhibition was a vital element of the offense.” Rabe v. Washington, supra, 405 US at 316.

Defendant’s final contention is not well taken. In the first place Rabe v. Washington, supra, is distinguishable from the case at bar because in Babe the Washington Supreme Court determined that the motion picture “Carmen Baby” was not obscene under the Both test if the viewing audience consisted only of consenting adults. In the instant case we have already determined that the subject movie is obscene under the Both test. Secondly, the record in the case at bar shows that defendant did not challenge either the statute or the indictment on this ground in the trial court. Further, according to the record the state’s evidence concerning the viewing of the film by several minors standing outside, and by some nearby residents and passing motorists, and their adverse reactions thereto, was admitted without objection on this particular ground.④

As we have consistently held, we will not review any alleged error not properly preserved in the trial court and raised for the first time on appeal. U. S. National Bank v. Lloyd’s, 239 Or 298, 325-26, 382 P2d 851, 396 P2d 765 (1964); State v. Jorgensen, 8 Or App 1, 13, 492 P2d 312 (1971), Sup Ct review denied (1972).

Affirmed.

Former ORS 167.151:

“(1) No person shall knowingly disseminate obscene matter. A person disseminates obscene matter if he exhibits, sells, delivers or provides, or offers or agrees to exhibit, sell, deliver or provide, or has in his possession with intent to exhibit, sell, deliver or provide any obscene writing, picture, motion picture, device, record, material or other representation or embodiment of the obscene.

“(2) As used in subsection (1) of this section, matter is obscene if, considered as a whole, its predominant theme appeals to prurient interest and if it is patently offensive and goes substantially beyond the customary limits of candor in describing or representing such matter with reference to ordinary persons.

“(3) In any prosecution for an offense under this section, evidence shall be admissible, as relevant to a determination of whether or not the predominant theme of the matter appeals to prurient interest, to show artistic, literary, scientific or educational merit of the matter.

“(4) In any prosecution for a violation of this section, it shall be relevant on the issue of knowledge to prove the advertising, publicity, promotion, method of handling or labeling of the matter, including any statement on the cover or back of any book or magazine.

“(5) Violation of subsection (1) of this section is punishable by imprisonment in the county jail for not more than six months, or a fine of not more than $1,000 or both.” (Repealed Oregon Laws 1971, ch 743, § 432.)

Under the new criminal code, exhibiting an obscene performance to a person under 18 years of age, who is not accompanied by his parent or guardian, is a crime. See Oregon Laws 1971, ch 743, § 258, pp 1939-40.

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The conviction in State v. Childs, 252 Or 91, 447 P2d 304 (1968), cert denied 394 US 931 (1969), has subsequently been reversed through federal habeas corpus proceedings. Childs v. State of Oregon, 300 F Supp 649, 650 (D Or 1969) (holding matter not obscene), reversed 431 F2d 272 (9th Cir 1970) (holding matter to be obscene), reversed 401 US 1006 (1971).

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RCW 9.68.010 then provided:

“Every person who —

“(1) Having knowledge of the contents thereof shall ex hibit, sell, distribute, display for sale or distribution, or having knowledge of the contents thereof shall have in his possession with the intent to sell or distribute any book, magazine, pamphlet, comic book, newspaper, writing, photograph, motion picture film, phonograph record, tape or wire recording, picture, drawing, figure, image, or any object or thing which is obscene; or

“(2) Having knowledge of the contents thereof shall cause to be performed or exhibited, or shall engage in the performance or exhibition of any show, act, play, dance or motion picture which is obscene;

“Shall be guilty of a gross misdemeanor.”

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There were no instructions given by the court that this evidence was to be considered by the jury as an element of the offense charged.