*1 PART, AFFIRMED IN IN REVERSED IN-
PART, REMANDED WITH AND
STRUCTIONS. JJ., RUCKER, concur.
CONOVER
Rocky L. and Aeros FORDYCE Corporation,
Entertainment (Defendants), Appellants (Plaintiff). Indiana, Appellee
STATE of
No. 48A02-8906-CR-00263. Indiana, Appeals of
Court of District.
Second
March 1991. *2 purchased two he Anderson where
town Mommy Incest entitled paperback books Daughter. Dog Fun For and story tells a Mommy Incest The book for his first seducing her son a mother sexu- details various experience and sexual place take between al activities a describes Doughter Fun For Dog two. mother, and a friend teenage girl, her experiences the sexual girl, and and a Dober- Shepherd a German have with Daughter For Dog Fun Pinscher. man boy makes teenage who a also features her moth- daughter and calls to the obscene of the then, conclusion er, and at the romp with in a sexual engage up to shows the mother. fictional. are in both books
The stories but con- photographs, contain The books for advertisements only of text and sist Dog Fun products. While adult various Yelton, Geoffrey B. Murphy, Patrick characters certain refers to Daughter For Anderson, appellants. for age specific "teenagers," no and as "teens" less is even Mommy provided. Incest Gen., Pearson, Gary Da- Atty. Linley E. certain refers to the book specific; while Gen., Indianapo- Secrest, Atty. Deputy mon son, his i.e. traits exhibited childlike lis, appellee. for house, his lack "racing" around etc., is no di- development, there physical BUCHANAN, Judge. age of the characters. of the indication rect SUMMARY CASE books, For- the content Based on Fordyce Rocky selling L. charged and Appellants-defendants arrested dyce was Corporation de- depicted or Entertainment and Aeros age. as For- years referred to collectively (hereinafter persons under scribed trial, distribut convict- their convictions appeal Following a dyce) sexual describes year three sentence given matter ing obscene ed and or, $5,000 under sixteen involving fine pay a conduct ordered to claiming felony, $5,000 D contribution age,1 alternative, a class make a years of violates both Indiana's sixty days of the sentence charity. All but Constitu and Indiana suspended. the United admitting in not tions, erred that the court evidence, into ISSUES comparable book support the was insufficient
the evidence for our con- issues Fordyce raises several the enhancement obscenity conviction follows: sideration, restate as we felony. the offense to obscenity statute Indiana's 1. Whether ninth Amend- first and violates We affirm. States Constitu- of the United ments FACTS tion? obscenity statute Gri- Indiana's Rick Officer 2. Whether September On I, 9 of Section Article violates en- Department Anderson Police
ner of the
Constitution?
in down-
Adult Bookstore
the Aeros
tered
(1988).
35-49-3-1(2)
Ind.Code
the court erred
not ad-
8. Whether
Miller v.
California
compa-
mitting
into evidence a book
37 LEd.2d 419:
alleged
to the ones
to be ob-
rable
guidelines
"The basic
for the trier of fact
scene?
(a)
average
must be:
whether
'the
per
*3
son, applying contemporary
4. Whether
the evidence was sufficient
work,
standards' would find that the
tak
support
the conviction?
whole, appeals
en as a
prurient
to the
the evidence
5. Whether
was sufficient
interest,
Wisconsin,
Kois
supra
v.
[408
support
the enhancement of For-
2245, 2246,
U.S.
at 230
S.Ct.
229]
[92
dyce's sentence?
(1972) ],
LEd.2d
quoting Roth v.
dissenting opinion
raises sua
States, supra
United
U.S.
[354
476]
sponte
appropriateness
of the trial
1304, 1311,
S.Ct.
established at the time shall Constitu or vended, any playing cards, cause to be adopted, tion was was not an exception speech, pamphlet, print, historical to freedom of he shall, thereof, on conviction be fined in and, protected speech thus constitutes un any sum not less than one dollar nor Oregon's der Constitution. more than every three dollars for such By precedent, Fordyce and the ICLU pack cards, book, pamphlet, print apply Oregon analysis would us have vended." conclude that the framers of Indiana's cur Indiana, 1848, Laws of Chapter Article rent constitution did not intend for obsceni III, Section 122. ty exception speech to be an to the free year adoption one after guarantee. support they cite fact constitution, Indiana's current this statute was never discussed as an part comprehensive reenacted as of a exception speech during to the free clause *5 eriminal code: subject argue the debate on this and that at Every person "See. 52. who shall drafted, the time the Constitution was vend, agent, print, himself or or exhibit Indiana did not have a consistent tradition any book, circulate pamphlet, obscene regulating obscenity. addition, of print picture, upon conviction, or shall language contend that because the em exceeding dollars, fined not five hundred ployed in the free speech clause can be and if female, the exhibition be made to a 1816,7 traced to the Indiana Constitution of imprisonment exceeding three other state constitutions of earlier vin months be added. tages, and even the 1789 French Declara persons engaged Sec. 58. All in vend- Rights Citizen, tion of the of Man and ing, circulating exhibiting or or in speech framers of Indiana's free clause way preparing book, pam- such obscene adopt principles intended to embodied phlet, print picture, deemed, shall be in those earlier including the guarantees, punished principals." and as protection expression. afforded obscene Ind.Rev.Stat.,1852, 8, Chapter Misdemean- They First, hardly reach too far. ors 52-53. §§ . significant obscenity seems was not Although legislature provide did not exception discussed as an to the free statutory definition of the term "ob speech clause at Indiana's Constitutional scene," an examination of dictionaries Convention of 1851. See Journal of that era that one dictionary shows defined Convention Indiana "immodest; the term disgusting" of as and (1851). Amend the Constitution Such "obscenity" "impurity defined as omission is in understandable view of the thought language; lewdness." Walk adopting overall task involved in a new Pronouncing er's Critical Dictionary and regulating constitution. obscenity Statutes Expositer (1844). English Language already place were in Indiana. Laws See (1856) Dictionary Webster's defined "ob Indiana, 1848, 58, IH, Chapter Article chastity scene" as "offensive to and delica 122, Section and in other cy; states which had impure; expressing presenting speech provisions similar free in their cons something the mind or delicacy, view which purity, titutions.8 decency exposed; and forbid to be adopted example, Michigan first constitution was 8. For see Const. of art. IV, Mich.Rev.Stat., XXX, and § 42 titl. ch. Its second and current was constitution (1846); VI, 13-14 La.Const. of §§ Title art. adopted in 1851. Code, 110 and La.Penal & Punishments, Crimes (1833). XVI, II, Title ch. art. 340 excluding the any error and pictures." language; obscene obscene substantially because concerned harmless book was were forefathers Obviously our ad- on book was the excluded effects similar book degrading with into evidence. mitted society. be obscenity statutes did not trial court The enactment CONCLUSION-The following Indiana's immediately comparable book and refusing
fore to admit err pro constitution its current adoption of into evidence. compelling evidence vides to exclude decision A trial court's cloaked to be not intended will relevant arguably which evidence clause. Our speech the free protection of showing is a unless there reversed not be prece persuasive is not without conclusion was mani discretion trial court's Colo., 773 (1989), People v. Ford dent. that the defendant and festly abused court ad supreme 1059, the Colorado P.2d v. State a fair trial. Jackson denied its of whether the issue dressed a foun To establish Ind., N.E.2d 1115. clause speech free violated comparison evi the admission dation constitution, clause is similar its standards, on the issue dence Oregon's in both one contained proffered showing that the there must be The Colorado Indiana's Constitutions.9 constitu is similar time its that at the court observed degree of issue, enjoys a proscriptions written, obscenity tion was acceptance. Sant Van the dissemination prevalent 229; United (1988), Ind.App., 523 in other prohibited F.2d (D.C.Cir.1974),509 constitu v. Womack adopted had jurisdictions to Col denied cert. or identical provisions tional 681; also Saliba 45 L.Ed.2d historical back S.Ct. Because of orado's. *6 con court supreme Ind.App., ground, the Colorado constitution denied, Ind., of its 1295. the framers 484 N.E.2d cluded that trans. obscenity to be constitu consider did not concluded case, the trial In this Ford, supra. speech. tionally protected book, My proffered content that the to substantially have failed Garden, the ICLU Fordyce and Secret pre- to rebut required Daugh- Dog in Fun For meet the burden that contained to regulating However, statute tri- that Indiana's sumption Mommy. and Incest ter Miller to Fordyce is constitutional. had failed that found al court Ind., 64. 517 N.E.2d My community acceptance of Se- establish Garden. cret the court THREE-Whether ISSUE book, comparable admitting by figures sales trial, Fordyce compared erred At material, into evidence offending to books which to other Garden My Secret accept to demonstrate order class deemed to be time had he claimed the books? ance of introduced evidence ics.10 store in period one month a nineteen over CONTENTIONS-Fordyce PARTIES' - My twenty copies of Secret Anderson sold in not court erred the trial argues that any of higher than Garden, figure a sales he comparable book admitting a over same store sold at the six classics communi- accepted by the had been claims of time. Record period the same use of counters ty. The State month nineteen Additionally, over the same itself, to not sufficient figures, sales Garden 15,389 copies My Secret period, accepted the community had show that My Fordyce compared classics which 10. The II, Consti- of the Colorado Section Article 9. - Diary Anne Frank: to were Garden Secret provides: tution Canterbury Girl, Courage, Badge Young Red impairing the free- passed "No law shall Men, Mockingbird, Tales, To Kill a Mice and every person be free shall speech; dom of Of will on he publish whatever speak, write or and Juliet. Romeo being responsible all abuse subject, liberty ..." sold nationwide. Record ISSUE FIVE-Whether the evi This, Fordyce the book claims shows dence support was sufficient the trial court's popular two-and-a-half times more Madi conclusion that the depicted books nationwide, person described a County years thus under 16 son than indicat age? ing "accepted" the book had been Madi County.
son
CONTENTIONS-Fordyce
PARTIES' -
urges this court to conclude that the en-
We need not decide whether the sales
portion
hancement
Indiana's
figures
offered
Fordyce establish that
statute
applied
should
to obscene
My
accepted by
Secret Gorden was
matter
depicts
or describes "real"
and,
therefore,
should have
persons
age
under the
of sixteen.
In the
been admitted into
alternative, Fordyce asserts that
the evi-
Although Fordyce
materials.
contends the
dence fails to show that the
characters
prevented
jury
exclusion of the book
the book
years
were below sixteen
age.
accurately determining community
The State counters that the enhancement
respect
obscenity,
standards with
provision
just
should not be limited to
actu-
trial court did admit a book entitled In The
persons
al
and that the evidence sufficient
(Exhibit F),
Babysitter's Behind
as a com
ly established that
the characters were
parable
accepted by
the community.
younger than sixteen.
The exclusion of evidence is not erroneous
substantially
similar evidence is subse
CONCLUSION-The
por-
enhancement
quently introduced and admitted. Under
tion of
applies
(1989),Ind.,
wood v. State
364 in- an Mommy describes Incest appear The book or are who persons" "actual mean boy a called relationship between cestuous Appel age. years sixteen below to be "mommy." In the however, State, "Johnny" his and 22. at lee's Brief "racing" son for her "de scolds language the mother to attention our draws knocking a and almost house through the statute as used or describes" picts at her arms. Record "de laundry out dictionary definition basket a provides and Johnny that drawing mother tells Later a likeness 342-48. form "to picts" as Record at big boy." portray, or to a "getting be represent, he is ... painting Johnny's sedue- drawing course of During than ways in other 344. delineate quoting at "seant hair" Appellant's describes painting." tion, author Brief Johnny's "sprout" Dic begun to New International had Third which Webster's 1986). at 352. (Merriam-Webster Record region. tionary pubic is construction the author Daughter rule of For The fundamental Fun Dog give Kathy construed Ross must be a statute main character refers ex rel. intent. legislative effect is girl" who "young "face{d] [with] (1973), Court Superior v. LaPorte Bynum ma and childhood fragile moment between are to 355. We N.E.2d out what Ind. to find "trying turity" and is plain Record its budding body tick...." according to her makes a statute construe (1977), v. State to her and meaning, St. Germain refers also 428. The book and and words "teenager" and 369 N.E.2d Ind. as a characters other two plain, ordi in their taken are to be phrases Record "teen." a different unless sense nary and usual indicates explicitly neither book While itself. by the statute is manifested purpose characters, only neces it is age of the 436, 127 Ind. v. Wells Overlade drawn be an inference sary that the fact- support will the evidence "person" the word look at so we And See Woodson conclusion. finder's construction Fordyce. Our interpreted respect With Ind., N.E.2d 1331. keyhole against a militates For Fun Dog Mommy Incest can word. inference one unmistakable on focuses Daughter view young de- "depicts or phrase describe Rather, that the books drawn is to be appears person who the threshold girl scribes on young boy age," which should years age. years sixteen below under puberty and ordi- plain Taking the examined. circumstances, such Under language, it would meaning Fordyce's of this nary the enhancement supports en- intended legislature seem sentence. apply the statute portion hancement affirmed. Judgment matter the obscene in which to situations certain beings below human describes SHIELDS, P.J;, concurs. *8 in portrayed characters Clearly the age. Mom- part and and Incest Daughter SULLIVAN, J., in For concurs
Dog Fun and, beings opinion. part in as human represented dissents my were meaning ICof plain thus, within fall part concurring in SULLIVAN, Judge, indicate nothing to There is 35-49-38-1. part. in dissenting by infer- or specifically legislature Two, Four, Issues as to fully concur I portion the enhancement intended ence Five. involv- to situations apply not to the statute obscene ing the dissemination I. in fiction.
based refusal One, in the I concur whether to Issue determine As must we So now statutory defini- Indiana down the strike establishes sufficiently the evidence the U.S. obscenity violative as or tion "are books the obscene in the characters so, however, I state doing age." Constitution. years of under appear be position by my that the articulated IL. belief concerning implications of I concur upon as to Issue Three but (1986) 497, 107 Pope v. Illinois 481 U.S. ground that the discretion of the trial court 1918, 439, appears to have 95 LEd.2d S.Ct. reject comparative to admit or evidence is deserving merit and is consideration virtually unrestrained. Hamling See v. Supreme In this re the Indiana Court. (1974) 87, United States 94 S.Ct. making I in gard, see no value a detailed 2887, 2912, 41 LEd.2d 590. For this rea- stage analysis appellate at the intermediate son, "My exclusion of the book Secret Gar- Pope would observe that the decision but error, den" though was not reversible even upon portion of the casts doubt view, my in the trial court wrongly found implies Indiana statute which that "the av had not received sufficient erage person" is the determiner of all three components acceptance of the test. to be admitted With test, "literary to the third reference or comparative evidence. test, obscenity, majority
value"
"Acceptance",
in
as used
connection with
in
opinion
Pope stated:
the admissibility
in
proper inquiry
''The
is not whether an
cases,
is a relative term.
In or
ordinary
any given
member of
communi
admissible,
der to be
the work need not be
ty
literary
would find serious
... value
all,
accepted by
by majority,
even
material,
allegedly
but wheth
only necessary
substantial number.
It is
er a reasonable
would find such
that the foundation disclose "a reasonable
value...."
470 public.') the 419. issues, F.2d 502 predicate proper Therefore, the once 473, Ala. (1974) 292 v. State In Pierce demonstrating to the has been laid Court Supreme 218, the Alabama 296 So.2d the matter that satisfaction trial court's requirements foundational the discussed contemporary of as evidence offered by parenthet- and evidence comparative degree of enjoys a standards "commu- the how suggested comment ical (either way acceptance or tolerance of admissibility the prong of acceptance" nity sales, or testimony, volume expert of I appropriate is met. It might be test ad- should be means) matter other from Chief extensively quote to believe supplied.) (Emphasis mitted. opinion: majority Heflin's Justice however, every hold, not to This is Manarite, 448 v. "In United must be proffered photograph Cir.1971) Circuit (2d the Second 583 F.2d large num- of a The admission admitted. problem: this addressed Appeals of Court com- alleged to be items different of ber availability sim of might mere question of 'Evidence matter parable by itself sufficient complex is not unmanageably ilar trial make the to amount lengthy and would community standards and ly probative absence There- to be admissible evidence. than cumulative more a rea enjoys admit material must fore, trial court proof while after community standards community accept evidence sonable established, States, 111 has been predicate proper v. United ance. Womack left must be 204, such evidence 206 8, F.2d the volume 294 U.S.App.D.C. 859, court, denied, 81 trial 365 U.S. discretion (1961), cert. the sound the trial review will not (1961). this court Such and 826, 822 5 LEd.2d S.Ct. except for issue on this decision court's normally supplied proof would 296 So.2d of discretion." an abuse proof was No such expert witnesses. foun of this In the absence offered. (1980) 153 Similarly, Flynt porno dation, allegedly similar 669, denied 232, cert. 264 S.E.2d Ga.App. exelud- properly material graphic 114, 245, L.Ed.2d 66 101 S.Ct. materi availability of similar Mere ed. court held: than nothing more means itself byal the admission behind rationale "'The engaged in sim persons are other is to allow evidence 'comparative' activities. ilar oppor- obscenity case the in an defendant the trier attempt persuade posi- tunity rationale underlying does challenged material Mr. late fact that by stated been tion has Justice take States, 354 U.S. munity munity [1311], 1 LEd.2d [The press are into account Harlan: trier of cannot, where standards," obscenity case must issue, "contemporary 1498. . . . Roth liberty of condemn 77 S.Ct. v. United The com speech com rable parative standards, challenged contemporary Such [*] exceed material material is material represented contemporary community standards. ... and [*] would tangible against which judged. [*] show 'communi by the evidence [*] The com- compa- La tolerates. Smith 'similar' generally acceptance' ty defendant by the that distributed U.S. California, issue J., bearing (Harlan, con on have would thus 4 LEd.2d defendant dissenting part). jury-whether part curring before material." knowingly distributed State, Md. also Yudkin 264 S.E.2d (Trier has of fact A.2d 798 decision, supra, fol- Sant of, This court's Van read, informed or be 'right *10 that avail- wisdom that have the conventional books lows comparable contents of comparative ability of material does not copies have sold more in a community dur- equate community acceptance. ing In the with period brief current popular than a vein, same 2d Dist. weekly monthly publication Saliba such as App., Sports Ind. 475 N.E.2d somewhat more Illustrated or Digest, Reader's it specifically states that "distribution data stands comparison to reason that the publi- must be viewed with caution" because it is cation has degree achieved a reasonable precise point difficult to fix the at which community acceptance. publication sales aof denote a de- relative Nevertheless, comparison of sales be- gree public acceptance. 475 N.E.2d at tween the books here involved and the "classics" set forth in footnote 10 of the In making ruling "My its as to Secret majority opinion is helpful. not This is so Garden," the trial court said: literary because works clearly which are figure only "... we have is unmistakably accepted from one may have re- twenty copies bookstore of about I ceived such acceptance ... wide period over a twenty copies don't think of time as to already nineteen be found in a substan- tial private number of months, again, libraries. Posses- establishes reasonable sors of the acceptance County the Madison work have no purchase com need to copy another munity." figures Record at 773. it. Sales for a given period recent time may therefore disregarded acceptance court for truly degree reflective of the of commu- purposes comparative sales of several nity acceptance. It was not error for the books considered as "classics" because reject trial court to argument defendant's le., were not of type, the same sexual- "My because sales of Secret Garden" ly explicit. The court erred in its reason- exceeded sales of the classics for a relative- ing. degree accept- "reasonable ly period, brief the former had received separate ance" test is and distinct from the community acceptance in the same or similarity Application test. of the test for greater degree than the six classic works admissibility consists of steps. two If ma- enumerated. content, terials are not similar in analy- A analysis different given must be proceeds sis similarity no further. If the comparative figures "My sales Secret met, prong of the test is then does the Garden" in County the Madison area as proceed trial court to determine whether opposed to national sales of the same book. comparison publication has received degree of community accept- Flynt, supra, Ga.App. stage, ance. At this the similarity of con- Pierce, supra, S.E.2d it was tent merely is not a factor. The trial court acknowledged figures that sales may be comparison determines whether the materi- used community accept to demonstrate requisite al has attained the of ac- however, In Flynt, ance. the court held so, ceptance. doing comparison with community acceptance had not been permissible. dissimilar material is figures shown because the reflected mere distribution to retail establishments not Although improper it would be to find a consumer sales. figures Such distribution comparison publication accepted in the com- might coupled suffice if number of munity merely because it has received books returned from the retailer to the greater publi- sales than some other kind of distributor but in Flynt that evidence was cation, publication if the latter is known to Flynt reasoned, not offered. The commonly accepted, comparison such therefore, that the defendants had estab be made. If the lished, best, availability. mere The sales greater has received sales in the communi- figures in evidence decidedly here are dif ty than the commonly accepted publication ferent than those considered the Geor certainly would seem to dictate a conclu- gia Appeals Court of in Flynt, supra. sion that it has requisite received the de- gree Here, of community acceptance. figures "My For exam- the sales Secret ple, comparison publication (books were to Garden" reflected total sales distrib- *11 368 Distributing Co. Literary nineteen Florida during the returns) less
uted 569; v. Vari Madison Fla., in United single store 486 So.2d in a period month Merchandise, Obscene Articles sales ous national capita per Total County. Cir.) F.2d (1983 2d No. 2102 times Schedule one-half to two. be shown were jury particular a be that may well 132. It comparative estimation, such my In less. though the that even might determine conclusion inescapable the lead to figures content, is obscene one in County and are Madison books community of the might de Or, they is not. the other "ac had environs immediate the perhaps determination cide, threshold despite a degree which a least to the book cepted" comparison evidence trial court the That de acceptance. nation's the exceeded acceptance, community degree of has a prompted have should acceptance gree are obscene. publications both Garden" "My Secret to find the court of ac degree the reasonable received law that requirement had I find no into evi admission necessary for obscenity defendant ceptance of an acquittal dictates say that so, I am unable publication comparable Even dence. a merely because compel so admissibility pur- was deemed, evidence foundational for has been court, In acceptance. degree require the have a poses, to as ling conclusive community stan- contemporary the Exhibit. law, admit applying matter of as a as to Entertainment v. Dane determination in ultimate their Commonwealth dards N.E.2d the trial (1983) Mass. not jury is bound obscenity, the Services in any event, regard error to admissibil- In that with view judge's harm was has received Garden" evidence excluding "My Secret ity, the least acceptance. At more similar even less because regard to their are not so bound for into evidence content, admitted alleged to be the material assessment purposes. comparative State, supra, Saliba obscene. See admitted "F' which Exhibit As to J., concurring at (Sullivan witness, an evidence,1 foundation into 1192). distributor, before testified book adult acceptance determination community approximately The month typical in a jury that in ad- court by the trial necessarily made type and of that copies of books not is comparative evidence mitting the type but a different month of per fifteen argued may jury. It binding upon the sold. were in content identical almost made not even jury should County 1988, Madison nine months admissibility test. But aware type copies of that 878 total advised jury must be way the evidence, some other only This was sold. make the they are to in which manner as was offered itself the exhibit than conclu- permissible what comparison and exhibit was for admission. foundation comparison. from that may flow sions the exhibit. read. jury admitted given here the instructions none of comparative Admission duty function or of their jury told not determi- community standards show F with comparing Exhibit reading and may disregard of fact The trier native. charges. The by the covered books is offered as it insofar that evidence it the definition did have before City Miami the standard. establish so compa- is not F for admitting Exhibit "community" of obscenity, Defendant's nation In- por- in which erroneously areas in- to embrace narrow purposes, the trial rative purchase persons ad- who community acceptance test for nography abounds terpreted the communi- missibility to the entire to relate "not such materials. and read type of community that reads ty, community ma- but to the of certain Acceptance at 755. book." Record for materi- of a standard or establishment terial nec- "community" purpose is not such persons for who do include als within "community" by which essarily identical but who read such purchase or for obsceni- contemporary standards gauged are within "accept" such admissibility However, purposes ty. for both to do so. wish persons who ultimate determi- and the comparison evidence *12 analysis, comparison for assessment the final if obscenity which called evi- average per- admitted, by "the dence has subject jury been should in son, contemporary applying pur- some manner be instructed as to its jury The was pose place guilt determining pro- Record at 129. in the standards." subject material also instructed cess. patently "in a depict sexual conduct
must
contem-
way
that offends the
offensive
...
III.
The
standards." Record at 180.
porary
majority
judg-
decision affirms the
"contemporary
jury
instructed that
respects.
regard
ment in all
In this
I must
determined
community standards are
disapproval
por-
dissent and voice
of those
community as a whole in fact
what the
judgment
provide
tions of the
181)
(Record
acceptable"
and the
finds
charitable contributions of Five Thousand
that "the value of a work
jury was told
Dollars
lieu
the Five Thousand Dollar
vary
to commu-
[does not]
imposed upon
fines
both defendants. Such
accept-
degree
of local
nity based on
improper
might
alternatives are
well
Record at 188. This instruction
ance...."
constitute a violation of Canon
artistic,
redeeming literary,
deals with
Advisory Opin-
Code of Judicial Conduct.
of a work not
political or scientific value
ion of the Indiana Commission on Judicial
contemporary
stan-
with the definition
(December
1986).
Qualification
in effect instructs that the work
dards.
It
Dist.,
Campbell
4th
Ind
protected
though
patently
it is
even
(Sullivan,
App.,
ing argument jury told or was was the implication comparison
there an
book had achieved a reasonable
community acceptance. importantly, More
however, jury was not instructed for way compari- purpose
what or what son what conse- be drawn and with BAKER, Defendant-Appellant, L. John quences or results. reading jury done Indiana, Plaintiff-Appellee. STATE done in a virtual vacuum. Without assistance, guidelines some it would No. 87A01-9005-CR-180. merely being given comparison seem that novel, strikingly alleged Indiana, Appeals Court of it, to be obscene and told to read aids First District. appear merely jury not at all. It would April2, 1991. jury invite the to read two books instead purpose speculate one and to about what by reading comparative
was served court, guidance from the
book. Without they if must find is left to wonder: they may con-
both books obscene before charge; how
viet on the one involved comparative
similar the book must be deliberations; in their and how to
of value one book is
react determine is not.
obscene and the other