OPINION
Aрpellant-defendant Loren Jay Adams appeals his convictions for Exhibition of Obscene Matter, 1 a class A misdemeanor and Distribution of Obscene Matter, 2 a class A misdemeanor. Specifically, Adams asserts that Indiana's Obscenity Statute, Indiana Code section 35-49-2-1, is unconstitutionally vague and that the evidence was insufficient to support the convictions. In support of his sufficiency claim, Adams argues that the materials were not ob-seene, that there is community acceptance of the materials that Adams displayed and distributed, and that it is not illegal to display obscene materials within the privacy of one's own home. Finally, Adams asserts that convictions for both offenses would violate double jeopardy principles. Concluding that Adams has waived the argument with respect to his constitutional claim regarding vagueness of the Obscenity Statute, that the evidence was sufficient to support the convictions and that no double jeopardy violation occurred, we affirm the judgment of the trial court.
FACTS 3
Sometime in January 2002, Indianapolis police detective Timothy Blackwell became involved in an undercover investigation rеgarding Adams's alleged distribution, production and sale of obscene material. After communicating with Adams via the internet and on the telephone, Detective Blackwell and a female informant met with Adams at a bar on February 19, 2002. Detective Blackwell and the informant told Adams that they were interested in making sex videos because Adams indicated that he had previously videotaped group sex scenes.
Thereafter, all three went to Adam's residence, where Adams showed Detective Blackwell various images and video clips on his computer sereen of a woman having *1172 sexual intercourse with a dog, as well as a woman having oral sex with a horse. Adams also indicated that he had "regular" pornography for sale, along with "fetish" and "animal" sex tapes. Tr. p. 28.
Detective Blackwell then paid Adams $200 for four videotapes. Those tapes showed females engaging in various sexual acts with animals. 4 According to Detective Blackwell-a vice investigator with over twelve years of experience-he had never seen videos of animal-human sex for sale in local video stores, and he had never been able to successfully purchase thls type of video over the internet.
A search of Adams's residence was conducted and, on May 31, 2002, the State charged Adams with numerous criminal offenses, including class A misdemeanor distribution of obscene matter, which was based on the sale of the tapes, and exhibition of obsсene matter based on the images that had been displayed on the computer.
. Thereafter, Adams filed a motion to.suppress evidence that the police unlawfully seized from his residence including certain papers, a handgun, videotapes, a computer, computer accessories and marijuana. The trial court ultimately granted Adams's motion because the probable cause affidavit for the search warrant failed to sufficiently allege that the confidential informant was credible and reliable. Appellant's App. p. 54. As a consequence, the State proceeded to trial only on the Exhibition and Distribution charges. Following a trial by court, it was determined that the material at issue was obscene. Additionally, the trial court found that the material appealed to the prurient interests in sex and that it lacked serious literary, artistic, political and scientific value. As a result, Adams was found guilty of both offenses and was sentenced to concurrent terms of 180 days on each count Adams now appeals.
DISCUSSION AND DECISION
I. Constitutionality of Obscenity Statutes
Adams first contends that his convictions . must be rеversed because Indiana's obscenity statute is unconstita-tionally vague. Specifically, Adams argues that Indiana's obscenity statute fails to give the type of notice that would enable an ordinary citizen to comprehend precisely what conduct is prohibited.
Generally, a challenge to the constitutionality of a criminal statute must be raised by a motion to dismiss prior to trial, and the failure to do so waives the issue on appeal. Ind.Code § 35-34-1-4; 1.C. § 35-34-1-6; Payne v. State,
II. Sufficiency of the Evidence
Adams next contends that the evidence is insufficient to support his convie-tions. Specifically, Adams claims that the materials he displayed and sold to Detective Blackwell were not obscene and that there is community acceptance of them. Additionally, Adams asserts that the conviction for exhibiting the materials may not stand because he displayed the materials to Detective Blackwell in the privacy of
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his own home and the United States. Supreme Court's opinion in Stanley v. Georgia,
We first note that with respect to sufficiency of the evidence claims, this court will affirm a defendant's conviction if, considering only the probative evidence and reasonable inferences supporting the trial court's judgment, and without weighing evidence or assessing witness credibility, a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Rogers v. State,
In addressing the issues that Adams presents today, we note that obscenity is not protected speech under the free speech clause of the Indiana Constitution, Fordyce,
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 , 33 L.E.d.2d 312 (1972) ]; ... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whethеr the work, taken as a whole, lacks serious literary,; artistic, political, or scientific value.
Id. at 24,
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.
This statute makes it clear that a person of ordinary intelligence can understand what constitutes a "prurient interest in sex" or what constitutes a "patently offensive" depiction of sexual conduct. See Porter v. State,
Our resolution of Adams's sufficiency claim does not stop here, however, inasmuch as he goes on to argue that the conviction for exhibiting the materials must be vacated because he displayed the images at his own residence. In support of this claim, Adams directs us to Stanley v. Georgia where the United States Supreme Court held that "the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime."
In Paris Adult Theatre I v. Slaton,
When the case eventually reached the Supreme Court, it was observed that the states have a legitimate interest in regulating commerce in obscene material. Id. at 57,
We note, however, that this court is not upholding the cоnvictions simply because Adams "affirmatively displayed these video clips to other people, namely Detective *1175 Blackwell and the informant," as the State argues. Appellee's Br. p. 14. To be sure, there may very well be occasions where consenting adults view sexually explicit films or computer images in the privacy of the home. Whether such sеenarios would pass muster under the Stanley rationale is left for another day.
TII. Double Jeopardy
Finally, Adams contends that he could not be convicted of both offenses in light of double jeopardy concerns. Specifically, Adams asserts that one of the convictions must be vacated because the offenses in this case were "parts of a continuous criminal design and [were] inspired by the same criminal intent." Appellant's Br. p. 14. Therefore, Adams argues that convicting him of both offenses violates double jeopardy prohibitions.
In addressing this issue, we note that in accordance with the test announced in Blockburger v. U.S., a defendant's conviction upon multiple offenses will not be precluded by double jeopardy principles undеr the federal constitution if each statutory offense "requires proof of an additional fact which the other does not."
Additionally, we note that Indiana courts have "long adhered to a series of rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth in Richardson [v. State,
With respect to the application of the Blockburger test, it is apparent that the exhibition conviction only required proof that Adams "showed" the obscene material-a fact that is not required for the distribution conviction. Moreover, the other conviction required the State to show that Adams did in fact distribute the obscene mаtter-an element not required for the exhibition offense. See Isaac v. State,
In this case, the evidence demonstrated that Adams showed Detective Blackwell the obscene materials on his computer in order to support the exhibition conviction. On the other hand, the evidence showed that it was the sale of the tapes that was used to support the conviction for the distribution offense. Moreover, there has bеen no showing that the images displayed to Detective Blackwell that were depicted on the computer screen were identical to those contained in the films.
While the sale of the four videotapes to Detective Blackwell surely constituted but one act of distribution of obscene matter, see American Film Distributors, Inc. v. State,
CONCLUSION
In light of our disposition of the issues set forth above, we conclude that Adams has waived his constitutional challenges to the obscenity statute and that the evidence was sufficient to support Adams's convictions. Finally, we conclude that entering a judgment of conviction as to both offenses was not violative of double jeopardy principles.
The judgment of the trial court is affirmed.
Notes
. Ind.Code § 35-49-3-1.
. I1.C. § 35-49-3-1.
. We heard oral argument in this case in Indianapolis on February 17, 2004. We commend appellate counsel for their most able presentations.
. According to the probable cause affidavit, the videotapes show women having sexual intercourse with dogs, horses, and other barnyard animals, and performing fellatio on dogs and horses. Appellant's App. p. 20.