State v. J-R Distributors, Inc.

42371-77, 42385, July 27, En 42429. Banc. [Nos. 1973.] v. J-R The of Washington, Respondent, State Appellants. al., et Distributors, Inc., Respondent, Cox, Washington, The v. Allen of Jesse State Appellant. Respondent, v. Eugene Allen Washington,

The State Appellant. Rogoway, Respondent, Arthur Washington, The v. State Appellant. Montgomery, Appellant, F. Kelly, Washington, The v. Thomas State Respondent. J. Defendant, Kristek, Michael Respondent, Kravitz, Washington, The Samuel State Appellant. Respondent, Albert Thomas Washington,

The State Appellant. Duane, Respondent, F. v. Thomas Washington, The State Appellant. Kelly, Respondent, Michael Washington, v. James State Appellant. Tidyman, 589 appellant-defendants. Young V. for Hoff, & and Victor Hoff Attorney, Prosecuting B. and James Brockett, Donald C. County. respondent Spokane Deputy, Crum, for Prosecuting Attorney, Christopher Bayley, Ken- and T. County. Sharaga, Deputy, respondent King neth for W. Christopher Bayley, Prosecuting Attorney, T. Ken- Sharaga, Deputy, appellant neth W. for State. respondent.

Victor V. Hoff,

Preface majority opinion The was written and submitted mid-April of the members court in 1973. While it still Supreme under consideration the Court United States handed Miller California, 15, down 413 Ed. 2d U.S. 37 L. (1973); 419, 93 S. 2607 Slaton, Ct. Paris Adult Theatre I v. (1973) 49, 37 U.S. L. Ed. 2d Ct. 2628 S. Kaplan v. California, 413U.S. 37 L. Ed. 2d 93 S. Ct. (1973). Although foregoing opinions United of the Supreme change States in, Court have caused no the result necesasry herein, reached has been to reevaluate and re- language. vise certain opinion appeals J. This nine involves consoli-

Stafford, Eight appeals sepa- dated under No. 42371. are from Spokane King Although rate tried in actions Counties. specific assignments there are numerous of error in each they case, have been consolidated here because of a com- upon 9.68.010(1) mon constitutional attack RCW appeals In the ninth case the state from the of a dismissal codefendant one of the actions. large unique assign- number of facts and resultant

ments error do not lend to a themselves consolidated all Thus, discussion of issues. will cases be discussed in major legal according three divisions to the and constitu- I with to each. Division is concerned

tional common issues II concerned with case; Division dismissal of state’s and, Division III deals materials; sale obscene public theater. the exhibition of films in a

I Dismissal of State’s Case Kristek, Michael No. 42375 State v. J. codefendant Thomas

Defendant Michael Kristek and Kelly County King charged with two counts were in selling with the Each count is concerned obscene material. “Bedplay” magazine. sale of first involves the sale a The was Defendant Kristek and the second a sale “E-Jac.” alleged to in have aided and abetted both. case,

At the conclusion of the Kristek moved state’s The trial court dismiss the action for lack evidence. against dismissed with ordered two counts Kristek prejudice because: any present

the ant that the state failed to evidence defend- selling, any . in sold, . . or aided and abetted , magazines . . appeals. The state legal

The rule which we are concerned basic with 31, 34, is Zorich, stated 431 P.2d 584 State Wn.2d (1967): sufficiency requires challenge a to the of the evidence strongly against interpreted

that the evidence be most party light moving and in the most favorable to the opposing party, and whether the evidence is sufficient jury question to the of law for the the issue submit and no of discretion is involved. court element whether, rule, under the above there central issue The that and abetted his evidence Kristek aided sufficient was n magazines. sale of the two in the codefendant to the state indicates that favorable evidence most The employed magazine wrap- as a clerk and had been Kristek per only days prior a few arrest. at the Eros Book Store solely wrapping mag- however, consisted duties, had His cellophane. concedes codefendant state azines Kelly manager at the as the clerk the store’s well was question. time of the incident here July an undercover Gruber, On Detective browsing a he time, short officer, After entered store. Kelly, “Bedplay” took from a shelf and asked who unwrapped standing he had counter, behind the whether copy negative Upon receiving answer, to look at. Gruber replaced magazine and continued to browse.

Shortly for the first thereafter Kristek entered the room Kelly conversing time. He was seen the counter. Although wholly intelligible, the discussion was not Gruber “Bedplay” heard some mention of “E-Jac” and also they Kelly something heard Kristek tell effect were all like the cover. “Bedplay”, depicted

Unlike the cover which sexual activity, suggestive design. “E-Jac’s” cover was a Gruber pointed inquired Kelly generally to “E-Jac” and of both and Kristek whether “E-Jac’s” contents like the In were cover. general question, spoke answer to the for Kristek Gruber they replying the time, first on “No, the cover like ” ‘Bedplay.’ point paid Kelly At that codefendant Gruber “Bedplay”, Kelly magazine the took from and left the premises. Sanford, transaction, who in-

Detective had observed the Kelly police A troduced himself to and Kristek as a officer. During ensued. short conversation the conversation Gruber “Bedplay” Kelly with returned and asked and Kristek “E-Jac” whether the said didn’t was same. Kristek he pick- left, said, know. After Detective Sanford Mr. Gruber ing up you good really “E-Jac”, “isn’t this the one said was acknowledged was, before?” Kristek that but the vice squad present sup- he, Kristek, had been and that wasn’t posed to know what was inside the books. then Gruber purchased Kelly “E-Jac” from and left after a discussion Kelly with about other materials the store.

Shortly Kelly arrested, thereafter and Kristek were

592 selling charged

Kelly mate- two counts of obscene was abetting aiding in such sales. rials Kristek with Assuming foregoing evidence, state’s truth against properly action There was Kristek was dismissed. insufficient evidence that he aided and abetted his codefend- magazines. ant in the sаle the two 474 312-13, In Gladstone, 78 State Wn.2d (1970), quoting from Johnson v. P.2d 42 A.L.R.3d 1061 1952), (8th United forth the 673 we set States, F.2d Cir. prerequisites liability as follows: as an aider and abettor principal ground guilty [T]o one find a on the proven he abetter,

he was an aider it must be principal there shared in the criminal intent community purpose at time must unlawful be “aiding and abet- act is committed. term As ting” implies, participation in the it assumes some design, the common criminal act in furtherance of either before or at the the criminal act commit- time ted. knowledge (1)

In of the “abet” short the word includes (2) encouragement, perpetrator’s wrongful purpose, and promotion commission or counsel of another Hinkley, P.2d State v. criminal offense. Wn.2d We find no or reasonable inference such evidence Although us. drawn therefrom in the facts before Kris employed bookstore, time tek merely he was at the wrapper; magazine no he was not a clerk. There is therefrom inference to be drawn evidence or reasonable delivery attempted assisted in sold, that he to sell or either magazine during of the transaction. mentioning Kelly overheard were Kristek and

At best during Kristek was “Bedplay” a conversation. “E-Jac” Kelly to the contents were similar that the heard tell however, Detective recalled, Gruber be It must cover. portions only conversation. an entire isolated overheard instigator thereof. not even disclose The record does question, Finally, direct Detective Gruber’s in answer

593 Kristek the contents of “E-Jac” were indicated similar “Bedplay.” on the cover way,

One does not aid and abet he asso unless, some undertaking, participates ciates himself with the in it as something bring he about, desires to and seeks his action supra; Nye to make it succeed. State v. & Gladstone, Nissen States, United 613, 619, 919, 336 U.S. 93 L. Ed. 69 S. Ct. (1949). knowledge physical presence Mere or at the sup scene of a crime neither a crime constitutes nor will it port charge 'aiding abetting a crime. v. Glad State supra; (1911). stone, v. Dalton, 663, 118 State 65Wash. P. 829 The trial court is affirmed. necessary

In the cases that follow will be to describe generally magazines, the contents of the various books and they legally films to determine whether “obscene” tripartite under the test of Roth United States, 354 U.S. 476, 489-90, (1957), 1 L. Ed. 2d 1498, 77 Ct. S. Miller v. California, 15, 413 U.S. 37 L. Ed. 2d 93 S. Ct.

Nearly a Supreme decade after Roth the United States changed concept by Court articulating the Roth a new test obscenity. A Book Named “John Cleland’s Memoirs aof Attorney Woman Pleasure” v. General Massachusetts, (1966) U.S. 418, 16 L. Ed. 2d 86 S. Ct. 975 (hereafter Memoirs). cited as Memoirs v. Massachusetts or plurality In Memoirs a held that three elements must coa- lesce. (a)

it must be established that the dominant theme of appeals prurient the material taken as a whole to a in- (b) patently sex; terest the material offensive contemporary community because it affronts relating standards descriрtion representation to the of sexual (c) utterly matters; the material is without redeem- ing value. social presumed “obscenity” “utterly Roth While without redeeming require- social value,” Memoirs added a new obscenity prove necessary ment. To it became to affirma- tively “utterly establish the material without re- pointed deeming This, social value.” in Miller, out called nearly upon prove negative impos- the state to which was proof. sible under our criminal standards of rejected Miller test has as unworkable the Memoirs “utterly redeeming new without social value.” The guidelines provided for trier fact the are:

(a) average person, contempo- applying whether “the rary community work, that standards” would find prurient appeals a whole, taken as to the interest. depicts (b) describes, . a defined . . whether the work or way, specifically patently offensive sexual conduct (c) applicable law; and state whether literary, whole, work, as a lacks serious artis- the tic, taken political, or scientific value. supra California,

Miller v. at 24. pointed Miller out that: has further regulates If thus a state material law obscene [authoritatively] limited, construed, written or applicable through Amendment values to the States First protected adequately Fourteenth Amendment the by power appellate ultimate courts to conduct independent sary. claims when neces- review of constitutional supra (Italics ours.) at 25. Miller v. California, '[5] test must coalesce before The three elements may proscribed however, it If, as “obscene”. material test, material falls within 'ambit can be said that does not come within constitu- it is and therefore “obscene” press tionally protected speech under freedom United Con- first fourteenth amendments to the States supra; United States v. States, Roth v. United stitution. (1971); 2d 28 Ed. 91 S. Ct. Reidel, L. U.S. supra. hand, if other it falls On the Miller v. California, legally the Roth-Miller it is “obscene” outside standard protection of First and Fourteenth entitled to may though it be distasteful to some Amendments even supra at Miller States, 481-85; it. v. United who view Roth supra. v. California, description approach of the exhibits’ contents with

We if this Nevertheless, cannot be avoided great reluctance. any application. practical opinion is to have Our review that a numerous cases has disclosed similar reluctance vague generalities has led either to the use of other courts nearly specificity or to a lack of it has such been impossible apply existing specific problems. to cases The specifically failure of courts to describe or discuss those things that caused them to conclude materials either virtually were or were not “obscene” has caused “obscen- ity” repugnant in Thus, be defined terms of itself. itas may approach description questioned be, we shall a оf the clarity description attempt materials with an in to avoid meaningless generalities.

II Sales Cases — A. State v. Thomas Kelly F. No. 42385 Kelly Defendant Thomas F. and codefendant Kristek charged King County selling were with two counts of charged obscene material. The first count of a sale magazine “Bedplay” entitled and the of a second the sale magazine charges against entitled “E-Jac.” The Kristek (see were dismssed at the end of the state’s case Division I above). Kelly’s jury motion for dismissal was a denied and guilty appeals. found him on both counts. He support following: There is evidence manager-clerk At the time defendant was hired as of the employer Eros Book Store his him showed around the es- magazines, result, As a he store, tablishment. knew the sexually books, and other merchandise were oriented. De- magazines displayed fendant noted books and were subject-matter price. Generally prices as to and as to both sexually explicit $10, from to the most varied with tend- $2 ing expensive. to be the most Defendant knew that “Bed- play” “E-Jac” both sold for He also knew there $10. against selling magazines. was a law “obscene” magazine “Bedplay,” pages first sold, contains 32 photographs. price, The front cover color consists of the description magazine title and a of the contents as “doubles closeups triples It come . . . all in this issue!” also shows reclining close-up genital area a unclothed penis in heads his erection. The of two male with state repose appears with, be, his what females on stomach fluid The reverse cover is an seminal on face one. explicit photograph of fellatio an unclad an act of between panties. male and female clothed depict photographs graphically interior unclothed engaged masturbation, sexual males and females acts of cunnilingus. In intercourse, fellatio and several the acts are being performed three females male either two or geni- photographs In most cases accentuate the once. tal area. captions photographs have of an

Sixteen the interior apparent nature, no connection erotic some which have pictures. however, contend, Defendant does not any upon minimal written material has effect that the Thus, issue us. dis- First Amendment before we shall not cuss it. magazine design

“E-Jac,” sold, the second has a cover represents ejaculating penis. only an The written which copyright therein is a notice and two material contained advertising sexually pages of oriented devoted to the books pages magazines. of “E-Jac” consists of 44 The balance photographs. photo- Each and black white is color appears penis together graph with what to be seminal of a deposited areas of an female on various unclothed fluid genitals, body, including breasts, face, stomach, hands, being committed The act fellatio is shown and mouth. Graphic photographs of an unclad conditions. under similar using penis or dildo are also included. an artificial female They repeated. will two sales details sufficiently in I, related above State Division have been Kristek, No. 42375. Michael assignments made ten of error. He does has

Defendant legal positions argue of each. There are however, not, points Thus, of law. an effort to sim- common numerous presentation, has combined those as- defendant plify’the signments having legal of error common theories and has presented argued heading each under the of a common legal issue. adopt

We the same format and shall common discuss legal 'assignments upon issues rather than touch individual of error. assigned having permitted

1. Error is to the trial court’s testify contemporary Dr. Richard Jarvis to about commu- nity regarding standards sexual matters.

Defendant concedes Dr. Jarvis is a licensed medical doc- qualified specialist tor psychiatry. and a Nevertheless, it argued qualified express expert that he was not an opinion go beyond contemporary that the materials in issue community suggested standards. It is that the doctor’s sur- vey public opinion in the area, Everett-Seattle-Tacoma people which he ages interviewed over 100 of various backgrounds, though was insufficient even it was related to people the attitude display maintained toward the of sexual material and public’s each interviewee’s belief as to the suggested attitude. It is also that Dr. no Jarvis is more qualified layman. agree. than a We do not experienced

Dr. psychiatry Jarvis is in the field teaching positions has held speciality. various in that His experience pornography. includes the area He con- has 5-year study people’s pornog- ducted attitudes toward raphy. nothing Furthermore, there is that the indicate survey recently merely presenta- concocted for trial tion.

Generally speaking, expert required pos special knowledge beyond sess going some skill or that of average person. special Whether a witness has such knowledge properly qualified express skill or and is an opinion expert anas is within the sound discretion of the trial court. State v. Nelson, 72 Wn.2d 269, 432 P.2d 857 (1967); Tatum, State v. 73, 58 Wn.2d 360 P.2d 754 Clearly the trial court not did abuse its discretion.

Finally, Kaplan pointed as out in v. California, 413 598 (1973), citing 492,93 Miller 115, L. 2d Ct. 2680

U.S. 37 Ed. S. supra, I Slaton, v. Adult Theatre v. 413 California, and Paris (1973), 49, 446, L. 2d 93 2628 the United U.S. 37 Ed. Ct. S. any Supreme rejected need State Court has constitutional prosecution, “expert” testimony or for on behalf of the obscenity, any ancillary here, as where, of other evidence placed allegedly have been evi- obscene materials regarded sufficient in them- dence. The materials are question. selves for determination assigned defend- 2. Error is triаl court’s denial of motions to at the end of the state’s case and ant’s dismiss assigned all to its the end of evidence. Similar error is judgment of or for of defendant’s motion in arrest denial assignments raise the All three of error same new trial. points, legal now a unit. which shall be discussed as (1) nor First,

a. it asserted that neither RCW 9.68.010 allegedly (2) prohibit a or of obscene mate sale exhibition any particular Rather,, or location. the stat rial in context prohibits or exhibition of obscene material the sale ute irrespective manner, where, or under what whom, of to urged, guilt upon consider Thus based a circumstances. or of of context or location of the sale exhibition ation allegedly under materials is unconstitutional Rabe obscene Washington, 2d 92 Ct. 31 L. Ed. 405 U.S. S. . (1972) incorrectly applied Rahe to the facts has be-

Defendant us. fore not hold defendant’s conduct or does

Rahe may not be considered on manner sale exhibition “redeeming question Rather, value.” it holds social or manner in which a film is ex the context that when element the crime ex an essential is made hibited may hibiting film, defendant be convicted obscene gives him fair notice that the manner or the statute unless display It is a vital element must location offense. holding light made in of an earlier that the be noted Rabe, in State Wn.2d this court decision Washington, (reversed supra), (1971) in Rabe v. P.2d although only wherein we held that a film was obscene proscribed under certain limited circumstances, the statute improper place exhibition obtrusive thereof at an time. setting allegedly

Evidence of the in which ob purveyed, scene materials are however, is relevant to the question “redeeming social value.” Memoirs v. Massa (1966) chusetts, 413, 1, U.S. 16 L. Ed. ; 2d 86 Ct. 975 S. Ginzburg see also v. United States, 463, 383 U.S. 16 L. Ed. (1966). Although 2d 86 Ct. 942 S. the Memoirs test of “utterly redeeming rejected, without social value” has been say setting this is not to that evidence of the in which allegedly purveyed longer obscene materials are is no rele question vant “redeeming either to the social value” or accepted the now standard of “whether the work, taken as literary, political, whole, lacks serious artistic, or scien rejected tific value.” Under either the test or the one now adopted evidentiary inquiry an Miller, into the manner pandering permitted of sale, or exhibition to determine spurious. whether an asserted “value” is real or “Fair warning” require prospective not does that a defendant be every type might informed advance of evidence which probative statutory be found in relation to a Further, crime. Supreme favorably the United States Court has commented upon evidentiary inquiry an into circumstances surround ing allegedly the location of the sale or exhibition of ob scene material. In v. California, Smith U.S. 4 L. (1959), Ed. 2d obscenity 80 S. Ct. 215 the court struck an down “knowledge ordinance that failed make of con prerequisite guilt. tents” a to a determination of Neverthe say page less, had this to 154: Eyewitness testimony perusal of a bookseller’s of a book

hardly necessary proving element in need be his aware- may of its contents. The circumstances ness inference warrant

that he was aware of what a book contained, despite his denial. ours.)

(Italics note that the instant case the We also trial court did give excepted instruction, defendant, in which jury manner of sale exhibi- was informed significant obscenity tion or vital to the issue of vel non. Next unconstitu-

b. it is asserted that RCW 9.68.010is thus is tional is not defined and because word “obscene” ordinary vague It that a man of and overbroad. is said understanding intelligence could not divine the mean- and argu- ing self-defining. because it is not “obscene” principally upon premise that ment is based a mistaken obscenity passé. and Roth its standard contrary, import thing To the is not a of the Roth past. recent it remains viable and basic hold Rather, ings Supreme in Miller Cali Court v. United States supra, supra Slaton, I fornia, Kaplan Paris Adult Theatre v. and supra. important to note Further,

v. it is California, historically Reidel, 351, United States 402 28 L. that v. U.S. vitality (1971), 813, Ed. 91 Ct. 1410 reaffirmed 2d S. page follows, at as 354: Roth It remains the law in this

Roth has hot been overruled. governs . . and this case. . Court Stanley Georgia, (1969), compels 557 no U. 394 S. Stanley] [in made . . . The Court different result. following expressly: point and the cases that its “Roth holding. today’s impaired by As we are not decision power regulate to retain broad have the States said, simply obscenity; power not extend mere does privacy by possession in the of his own the individual questioned Stanley Nothing in the va- . . . home.” lidity obscene mate- as the distribution Roth insofar concerned. rial was ours.) (Italics Supreme Court con Roth the United States

In carefully is unconsti the word “obscene” whether sidered tutionally not. Mish vague Accord, that it was and found Ct. 502, 56, 16 L. Ed. 2d 86 S. 958 U.S. York, 383 kin New only According requirement is that the (1966). to Roth “sufficiently warning convey to language definite under- common proscribed measured when conduct

601 States, Roth v. United 354 U.S. practices.” standing ‍​​‌‌‌​‌​​​​‌‌‌‌​​​‌​‌‌‌​​‌​​​​‌‌‌​‌​‌‌‌‌‌‌‌​‌‌‌‌‍1498, Ed. Ct. 1304 See also 476, 491, L. 2d S. State v. 480 P.2d 766 Oyen, (1971) (judg- Wn.2d ment vacated and case remanded on other grounds, “obscene”, U.S. 933 We hold that the word as used (1972)). unconstitutionally is not when con- 9.68.010, vague RCW sidered within of the Roth-Miller test. light According to the Roth-Miller test the confined to scope regulation works which conduct.1 A state depict describe sexual offense must which, also be limited to works taken as a whole, appeal sex, interest prurient portraying sexual conduct in a way offensive, patently which taken aas whole does not literary, have serious artistic, political, or scientific value.2 As thus authorita- tively construed by court, this sufficiently RCW 9.68.010 is definite, when measured common understanding practice.3 Photographs, pictures drawings which por- California, 1 As stated Miller v. 413 U.S. L. Ed. 2d 93 (1973), S. specifically by ap Ct. 2607 the conduct must be defined the plicable written, authoritatively state law as or as construed. authoritatively 2 We light of, construe RCW 9.68.010 and as by, limited short, quoting the Roth-Miller test. In from Miller California, supra 24, guidelines the basic for the trier of fact must “(a) average applying be: person, contemporary whether ‘the commu nity work, standards’ appeals would find whole, taken as a to prurient interest, (b) depicts . . . whether the work de or scribes, patently way, specifically a offensive sexual conduct defined by applicable law; (c) work, state whether taken as a whole, literary, artistic, lacks political, serious or scientific value.” regard 3 In this attention is to directed United States v. 200-Ft. Reels, 413 U.S. (1973), L. Ed. 2d 93 S. Ct. 2665 in which the Supreme Court, commenting United upon States using statute, a federal many words 9.68.010, similar say those in RCW had this to in footnote page 130: that, We further note while we must leave to state courts construction legislation, state duty do we have a to authorita- “ tively construe federal statutes where ‘a serious doubt of constitu- ” “ tionality is raised’ ‘a fairly construction of the statute is possible by question may which the be avoided.’ ”... If and when such a “serious vagueness doubt” is raised as to the of the “obscene,” “lewd,” words “lascivious,” “filthy,” “indecent,” or “im- regulated moral” as used to describe material we are ... prepared limiting regulated construe such terms as material way tray patently sexual conduct such as offensive a perverted, or normal actual or simu- acts, ultimate sexual depict masturbation, fellatio, acts cunni- lated, or which genitals lingus, and sexual relations lewd exhibition taken if, and animals are “obscene” as between humans subject literary, matter does not have a serious whole, the political, No value has artistic, or scientific value. such been here. demonstrated defendant that RCW is uncon- Next,

c. contends 9.68.010 stitutionally exemp- with the overbroad when considered It in RCW 9.68.015. is said that since RCW contained tions specified certain institutions circulate authorizes 9.68.015 by proscribed 9.68.010, otherwise as obscene RCW materials have some modicum social value. the material must may argued, it if has such value not be it is Thus, supra. proscribed Massachusetts, Memoirs We do under agree. “utterly redeeming test of First, the without social counterpart, its “modicum social value” value” and rejected by longer Miller no and are viable. been test, have argument “bootstrapping” non Second, is se defendant’s legislature quitur. fact that has certain authorized educationally depositories, supervised oriented and enu proscribed to circulate 9.68.015, RCW materials merated in by not clothe otherwise obscene mate RCW 9.68.010does literary, political artistic, the status serious rial with value. scientific educationally in one of

Material shelved the enumerated obscenity, depositories, example no an less oriented provides example reason of fact that it obscene proscribed law. Its value not somehow that which is may beyond obscenity merely vaguely because it elevated example provide police of or with an mate- officers students by illegal declared RCW 9.68.010. rial representations specific descriptions patently or offensive given examples in Miller v. “hard core” sexual conduct Califor- nia . . . (Italics ours.) legislature It intended that is clear RCW 9.68.015 institutions; exempt logical no more than certain does prosecution from possession for the and circulation of material declared otherwise obscene. exempts prosecution pic-

d. 9.68.010 from RCW motion employed operators projectionists ture or to show obscene they moving pictures, unless have a financial interest in the place they employment picture or unless exhibit the permission. without the owner’s Not included within exempted employees class are theater cashiers and argues This, bookstores newsstands. defendant, violates equal protection of the laws under the federal constitution provides a class citizens with immunities not author- equally ized all, thus also article 1, violates section 12of the state constitution. presented argu engaging

Defendant has an agree we ment, but do not with it. We have held consist ently statutory challenged, that when a classification if any reasonably state facts can be conceived that will presumption it, sustain there is that such exist. facts Advertising Markham Co. v. State, 73 Wn.2d 439 P.2d (1968), appeal (1968); dismissed, 393 U.S. 316 State Persinger, (1963), 62 Wn.2d 382 P.2d 497 cert. de equal nied, 376 U.S. 187 have We held con sistency upon challenges that the burden is one who showing upon any classification that it fails to rest rea essentially arbitrary. sonable and is basis Markham Adver tising supra; Persinger, supra. Co. v. State, State v.

There are valid reasons for the classification. The follow- ing (1) magazine are no means exclusive: Book and range stores offer wide of materials from which both may customer and clerk select at the time sale. Each has opportunity pur- to choose that which will sold or pictures the other hand, chased. On motion one shown projectionist time reel at a must exhibit those n selected manager. (2) Projectionists do not decide obliged which films exhibit and thus should not be judgment obscenity. make a as to their Furthermore, showing projectionist require a to decide whether the of a might particular a film be crime tend to “chill” the would constitutionally protected borderline, but dissemination pictures. motion just legislative illustrated, valid reasons for the

As classi- hand, are evident. On the other fication defendant has to failed establish that classification lacks a reasonable essentially arbitrary. and is basis thus We hold that classification is both and reasonable constitutional. argues RCW

e. Defendant 9.68.010has been su- by perseded impliedly repealed RCW 9.68.050-.120.He points out that RCW 9.68.010was last amended in Laws p. adopted § 1, 1969, 92, 261, ch. whereas 9.68.120was RCW subsequently §§ Sess., 1st Ex. ch. Laws p. legislative intent to 13-20, 2393.This is said to indicate a repeal by one, more recent al- the earlier enactment though Thus, both 1969. defendant con- were enacted in dealing tends, is exclusive method RCW 9.68.050-.120 the purview, falling with the its exhibition of materials within including disagree. “obscene” material. We nothing legislation is in the itself

First, there repeals amends 9.68.050-.120 to indicate RCW repeal by implication favored. Second, is not RCW 9.68.010. legislative have will be found to been a enactment Before legislation impliedly repealed subsequent the later act, prior Cope clearly supersede act. be intended must 940, 75 Wn.2d P.2d 821 Wilkins, land Lumber Co. v. repeal, impli implied Third, if is be there necessary acts two must clear and cation must be repugnant to each other that be so inconsistent with given they effect. and cannot both are irreconcilable (1945); Copeland. 156P.2d 416 Cross, State v. Wn.2d supra. here. not the case Wilkins, Co. v. Lumber Such legislative Clearly, no intent evidences RCW 9.68.050-.120 per- impliedly repeal conduct, Different RCW 9.68.010. categories in the two are covered materials sons ap- specifically legislative enactments. 9.68.050-.120 RCW general only plies RCW 9.68.010 has to minors whereas application. recognizes that RCW 9.68.050-.120 there is appeal to a difference between materials which will minor’s prurient will interest sex and those which have a similar (covered by 9.68.010). appeal Application adults RCW the later enactment broadened use lan- guage through provisions of “the 9.68.050 RCW 9.68.120 language shall be exclusive.” RCW 9.68.120. Such means only procedures that the set definitions and forth RCW minors 9.68.050-.120are exclusive insofar as concerned, are preempted and, that the state has the field in the of area material defined as “erotic” to Thus, minors. there no is by repeal implication here. points purveyor

f. Defendant out that the of material proscribed by 9.68.010(1) (2) RCW must have “knowl- edge argues of the contents thereof.” Based thereon he that purveyor only “knowledge must not have of the con- purveyed, tents” but, in thereto, addition also must have a personal knowledge subject or belief that the matter of the contents is obscene. Defendant that asserts be would possible magazine one know the contents aof or film knowing illegal. without that it was obscene and hence agree “knowledge "We a defendant must have of the con- of tents” that which he sells or exhibits before he can be guilty violating 9.68.010(1), (2). found It RCW does having knowledge acquired follow, however, that after that subjective he must also form a belief that the contents guilty selling obscene, he can before be found exhibit- ing obscene materials. only requires knowledge

The statute that he have purveys. of the contents that he which Whether by proscribed contents are obscene, and 9.68.010, thus RCW by may must be resolved resort to the Roth-Miller test. It purveyor’s subjective be not, however, resolved obsсenity. opinion on issue of argues that since not ex-

Defendant RCW 9.68.010 does “guilty knowledge” intent”, or “evil it must read clude urges only He that the state not into the statute. must “knowledge contents”, defendant had of the establish personally believed the contents be obscene. that he but support quotes Turner, 276, from he State 78 Wn.2d In (1970): 41 A.L.R.3d 283, 474 P.2d Accordingly, expressly eliminates unless the statute design intent or or defines the kinds of element ju- very nature, are classified which, as mala their offenses prohibita, ingredients dicially intent, indispensible purpose design be deemed should guilt. proof a supra, inapposite. Turner dealt Turner,

State public prohibited mutilation and con- which former statute p. flag. 259. As then tempt ch. Laws language describing no contained the enactment written provides required.4 However, RCW 9.68.010 the mens rea necessary escaping “knowledge” element, thus Further, aimed. Turner does Turner was at which defect beyond “knowledge” proposition that one not stand for subjective possess belief in his some studied must also wrongdoing. prohibita is a mala that a statute which states

Defendant citing obscenity regulation unconstitutional, Smith v. of is 205, L. Ed. 2d 80 S. Ct. 215 California, U.S. argues, constitutional RCW 9.68.010 Thus, he be agree do not with a crime malum se. We must define interpretation of Smith. Smith struck down a defendant’s city dispensed 9.68.010, which, unlike RCW ordinance “any knowledge requirement of of the contents of the court concerned absent re- book.” The Smith was quired “knowledge of could in- contents” a bookseller liability. by possible This, his absolute criminal it timidated unconstitutionally impede said, the distribution would literature, However, of both obscene and nonobscene. pass upon requi- did the kind of mental element Smith not constitutionally permissible prosecution to a or site whether obscenity an honest mistake about contents supra Smith v. California, would be a defense. 154. In Sess., has amended of 4 The statute since been Laws 1st Ex. 1, p. 823. ch. § contrary assertion, to defendant’s Smith did hold fact, prohibita regula- suggest or that a which is a mala statute obscenity tion In the case at hand of is unconstitutional. necessary is not for us to make the distinction and we do not do so. argument portion assign-

Defendant’s on this of his broad ment of error is not well taken.

g. Next defendant contends that under 9.68.010 RCW proof “knowledge allegedly of the contents” of obscene requires proof materials that a defendant had actual knowl- edge of the contents, a whole. He contends that state prove perused must at least that a defendant the contents questioned significant portion material or saw challenged urged proof gener- film. It is a defendant was ally sexually probably aware that the contents contained explicit photographs is insufficient. position

Defendant’s without merit. Proof that specific knowledge defendant had of the contents’ obscen ity, acquired perusal viewing an actual thereof, is not necessary support prosecution. a cоnstitutional General awareness that the contents are It is obscene sufficient. for the trier determine, of fact to under all the surround ing facts and circumstances, whether a defendant had knowledge that the materials obscene. were Smith v. Cali supra carefully points fornia, at 154 out: Eyewitness testimony perusal a bookseller’s a book hardly necessary proving need be a element in aware- his may contents. ness its circumstances warrant contained, inference that he was aware of what a book despite his denial.

(Italics ours.) York, 502, 510-12, New 383 U.S. L. 2d

Mishkin v. 16 Ed. (1966), knowledge also discusses the re- 56, 86 S. Ct. 958 prosecution quired support a constitutional under state obscenity statute: part, consists, in in of this record

The evidence scienter appellant’s and writers; instructions his artists his of disguise enterprise his . . . role the efforts transparency question, of the character of the material n highlighted covers, illustrations; titles, published appellant massive number of books obscene possessed repetitive quality sale; . . of . sequences . formats . . This of the books amply appellant “aware evidence was shows of activity “not character the material” and that his of purveyance of

innocent but calculated filth.” People (Italics ours.) v. Fin- the above is Consistent with (1961) quoted in kelstein, N.Y.2d N.E.2d page Mishkin at 510: clearly reading [§ 1141] “A of the as a whole statute only in some manner those

indicates that who they attempt to material aware the character of punished. It is not innocent but should be distribute purveyance is exorcised of filth which calculated (First proof ours.) words, of awareness In other italics magazines allegedly books, obscene contents “knowledge proof legally films furnish sufficient to required the contents” under RCW 9.68.010.

Thought, knowledge be ascertained or awareness cannot man’s of a absent The state some outward manifestation. says In this does. must from what he or mind be inferred way juries pass upon knowledge and awareness courts and every day having the evidence them no more than before ordinary experi- human from which, words and conduct may knowledge awareness be ence, condition, mental (3d Wigmore, §§ ed. 244, 265-67 inferred. 2 J. Evidence See 1940). 9.01.010(4) statutory fore- is a manifestation

RCW permits knowledge going. of a fact inference of It an put knowledge as should of such other facts derived from upon ordinarily prudent inquiry. It does re- man an quire specific knowledge act unlawful. actual or that exist which consti- if one knows facts It is sufficient tute a crime. “contemporary contention that It is defendant’s

h. community to in the Roth-Memoirs test referred standard”

609 community composed States. of the entire United means a point, legal argues, of this in the discussion he In essence upon community “contemporary based standard” that a leaves He anything is error. nation as a whole than the less any na- than less standard no room for considеration posi- disagree his despite with or area. We the size tional, tion. 419,93 Ct. L. Ed. 2d S. 15, 37 California,

Miller v. U.S. nothing in the (1973), specifically that there is holds requires fact to consider trier of Amendment which First standards” hypothetical “national and unascertainable attempting certain materials whether to determine when recognizes logically quite that: are Miller obscene. constitutionally to read sound nor It is neither realistic people requiring that Amendment as the First Maine or public depiction Mississippi accept of conduct City. Vegas, York or New found tolerable Las supra Miller California, at 32. agree Justice War- of former Chief

We with the dissent 12 L. Ed. 2d 184, 200, Ohio, ren in Jacobellis v. 378U.S. approval (1964), quoted in Miller 84 Ct. with S. supra at 32. California, my in Roth the Court said “It is belief that when by obscenity to ‘commu- reference is to defined community

nity a standards —not standards,’ it meant argued. I believe standard, national as is sometimes provable . . . ‘national standard’ that there is no (Italics ours.) position Miller is reason taken both community adequate provides with It

able and rational. obscenity. subject It on the to function latitude which may vary recognizes people in their different states diversity not be stran should attitudes, and this tastes uniformity. imposed gled by Standards the absolutism obscenity they change the char Rather, are not static. community the time involved as well as with acter of the disturbing they nothing or unu tested. There is which upon applying based a different standard sual about state in primary which the standard is considered. The “ requiring jury apply concern with the standard of ‘the average person, applying contemporary community stan ” judged dards’ is to be impact certain that it will be its average person, on an particularly suscep rather than on a person totally tible or sensitive insensitive one. Miller —or supra v. California, 33; Roth v. United States, 354 U.S. 476,489, 1L. Ed. 2d 1498,77S. Ct. 1304 Thus, we hold that as in used Roth and Miller “con- the temporary community applied by standard” to be the aver- age person contemporary community is the standard of the obscenity question by state in which the is to be tested the trier of fact.

In the case, instant as in all of the others consoli appeal, allegedly dated with it on “obscene” materials were admitted in evidence and available for consideration by important the trier of It fact. is to note that each case the same exhibits were available to the members this appeal court on were, fact, reviewed.

Inasmuch as the exhibits were before the court it was unnecessary expert testimony subject to have on the “obscenity.” pornography speak Hard-core can and does Slaton, 49, Theatre I v. itself. Paris Adult 37 L. Ed. U.S. (1973); Kaplan California, 2d 93 S. Ct. 2628 v. 413 U.S. (1973); accord, 37 L. Ed. 2d 93 Ct. 2680 Roth S. v. supra. United States, As we said in one of the consolidated Rogoway, cases in Division II-C-State v. Cox and State 2: § testimony by anthropologists, sociologists, No amount

psychiatrists, psychоlogists anything could have added ability to [or court’s] the trial court’s to this to deter- any comply mine that the materials failed to con- temporary community standards related to mat- sexual ters.

The materials the triers of fact and viewed are, of this court in each of the cases members consolidated every pornography in of the term and hard-core sense fully expression more discussed in Division II-C- that Rogoway, go § 2. The Cox and materials State v. State community this beyond contemporary standards far the view relating one considers to sex whether state the current test or average former Memoirs man under test. Roth-Miller us leaves independent the materials review of

Our own contempo- they question are an affront with no that community of sex- rary in the area state, of this standards prurient they appeal interest to the ual that matters; customary beyond any they go average far man; that patently ain offensive to be limit of that which is deemed way. sexual upon argument re- now

i. next based Defendant’s only jected if it obscene was Memoirs that material test any put “utterly redeeming value”, if social without rejected test, Using since conceivable use whatsoever. attempts employ it as written, his brief was defendant springboard questioned materials, establish involved, modicum certain of the of cases have a series here have of social value defense testified because witnesses therapeutic certain of the have used for materials been purposes said, it is undisclosed clinicians. Further some page on Dr. admitted 71 of that Jarvis brief, defendant’s psychiatrists sexually explicit that a “mate- few used items rially subject the same for certain thera- as this material peutic purposes demythologizing . . sexual such as . attitudes . . .”

First, fact, a review of the relevant with statements which that cases, we are concerned in this reveals series defendant has too to the testi- attributed much dóctor’s mony. sexually explicit Dr. Jarvis did mate- not admit that general or rials he discussed in were the as” terms “same “materially the same as” those in the cases involved several any before In not addition, us. defendant did establish that of the materials before us or are in were used even usable suggested. the manner even re- Thus, defendant under the jected gap logic. Memoirs there in test fatal defendant’s specific It does not that follow exhibits herein have redeeming merely modicum some social value because explicit unspecified sexually certain mate- unidentified and general may redeeming rials have some modicum social value. contrary implication

It must be noted that to the in de- generally brief, fendant’s Dr. “certain Jarvis testified that sexually explicit purposes in for films are used clinical explain, that he however, some instances.” He went on to positive technique was not convinced of and he was testifying, that materials, about which he could treating teaching no have value medical students or persons impulse. suffering In the from distortions of sexual similarly other that relevant statements fact he testified opinion educational, thera- in his the materials had neither peutic, redeeming scientific nor Dr. Jar- social value. While psychiatrists might acknowledge vis did use sex- some ually explicit (without naming comparing the materials cases) in this careful to materials those series he was point that he that he out knew none who used them and therapeutic Also, felt their use had no value. he classified weighted heavily foregoing psychiatrists as those “pornography type group.” any recognize emphatic Dr. Jarvis’ refusal to the value of sexually explicit treatment that would use materials specific therapeutic purposes plus that the other evidence commercially exploited for their materials herein were any, prurient appeal, value, to the exclusion of other if clearly important. supportive of the fact It is relevant and redeeming specific materials are social these without protection value and are not entitled to First Amendment The fact that even under the former Memoirs test. presented testimony had that the materials defendant some require accept or the trier of fact to some “value” did right give weight thereto. The trier of fact has both duty to determine which witnesses are believable extent. what af- of the relevant evidence Second, the same discussion firmatively herein, the materials taken as a establishes that appeal prurient sex, in and lack whole, interest literary, political, requisite or scientific artistic, serious by imposed stringent value the less Miller test.

Finally, question it in will be recalled that the materials allegedly were admitted as exhibits the case. Once placed obscene materials have in evidence there is no been testimony expert constitutional need for on behalf of prosecution, any ancillary obscenity. or for evidence permit materials are sufficient in themselves to the trier of obscenity. question fact to resolve the Paris Adult Thea- supra; Kaplan supra. tre I Slaton, v. California, v. challenge

Defendant’s well taken under either the newly adopted former Memoirs test or the test Miller. j. argues although alleged Defendant that obscene speak material was admitted evidence does not obscenity. question argues itself on the He that the state present testimony must in addition to the material to af- firmatively support establish the facts would a deter- obscenity. agree. mination of We do not Nothing gained by will be a detailed restatement of testi- mony and evidence before the trier of fact. It is sufficient to say considering totality of the record in the rele- ample vant cases there was evidence meet even the former obscenity Roth-Memoirs test of relied on defend- important, ant. More however, is the fact that -under Miller supra, v. supra California, Paris Adult Theatre I Slaton, Kaplan supra, v. California, there is no constitutional “expert” testimony prosecution, need for on behalf of any ancillary obscenity, or for other evidence of once the allegedly placed obscene materials themselves are in evi- dence. The materials are sufficient in themselves for a de- obscenity. question termination of the We also call attention to our discussion of “hard core pornography” opinion. Rogo- in this Division II-C-State v. way Nothing gained § 5. Cox, and State will be repeating it here.

614 prosecution’s

On the record in case, this evidence was support sufficient to defendant’s conviction. k. Next materials contends the involved

. defendant herein are not obscene in the It is constitutional sense. argued Redrup that since York, 767, v. New L. 386 U.S. (1967), Ed. 2d 87 Ct. S. there been no has verbal acceptable definition of “obscene” to the United States Su- preme argue light Court. Defendant seems that Redrup being the Roth test has been abolished. There no adequate says, “obscenity,” definition of defendant he can guilty agree. of no crime. not We do disregarded pronouncement

Defendant has Supreme United Reidel, States Court in United States v. 402 U.S. 351, 354, 28 L. Ed. 2d 91 Ct. S. abundantly

Reidel makes it clear that Roth “remains law Thus, this Court.” even under the Roth-Memoirs applicable test, at the time written, defendant’s brief was “obscenity.” there was a viable definition Subsequent writing to the brief the defendant’s United rejected Supreme Court States Memoirs test and in supra adopted specific Miller California, v. defini- obscenity together guidelines tion with basic for the trier having here, them of fact. We shall not restate set them length opinion. in this out at earlier assigns having error to the court 3. Defendant instructed necessary jury prove that it not for the state beyond maga- doubt that defendant a reasonable knew long proved obscene, zines as the state he had were knowledge magazines. of the contents assignment of error is not well taken. Defendant’s rejection fully argument thereof have been covered and our Kelly, opinion. § 2-f. in this See Division II-A-State by repetition. Nothing gained will be having assigned trial court instructed to the is 4. Error adaptation jury using test de- of the Roth-Memoirs obscenity. fining although argues 9.68.010 uses the RCW

Defendant urged It the term. does not define “obscene” term agree. We do unconstitutional. this renders the statute rejection argument thereof have and our Defendant’s basic fully opinion, explored Division II-A-State in this been Kelly, repeat § it. There is no need to 2-b. definition asserts that the Roth-Memoirs

Next, defendant obscurity “obscenity” having relegated passe, been up supra. have answered York, Redr v. New We rejected previously. argument II-A-State this Division See subject Kelly, repeat §§ v. not 2-b and 2-k. We will matter. give assigned

5. to Error is to the trial court’s failure having requested 1, 2, defendant’s and 3 and for instructions adjudged guilty defendant of counts 1 and 2. Inasmuch as argument supporting assignments the same all four is made of error we shall a deal with them as unit.

Basically, “good argued it is that a faith” defendant’s questioned belief that material is not is a defense obscene jury accordingly. and it is error not to instruct the corollary” argument presented Defendant’s is as “a to previously opinion, that raised in this Division v. II-A-State Kelly, § primarily upon 2-f. It is based the earlier assertion that to convict one aof crime under 9.68.010the trier RCW of fact must find that defendant knew or believed the sub- ject argument material in this was obscene. Defendant’s regard rejected Kelly, § was in v. 2-f. Division II-A-State say There is no to need to restate the matter. It is sufficient reject argument corollary that we also stated in form. Finally, assigned per- error 6. because the trial court opine question Dr. mitted utterly Jarvis that the material was redeeming It without social value. is also contended subject obscenity that the evidence submitted on agree. insufficient. We do

Defendant seems assert that the state must furnish opinion every expert discipline, endeavor, field of learn- ing, calling questioned or art to establish that material ut- terly presented redeeming lacks social value. He has us holding, with no cases so of none. Com- and we aware sense, however, mon dictates that to so hold would have

616 absurdity. reduced the former Roth-Memoirs test expert opinion Further, such a limitation of would have an impact upon present despite Roth-Miller test adverse rejection “utterly redeeming Miller’s of the without social Finally, suggested test of Memoirs. limitation value” spirit I v. to the of Paris Adult Theatre would run counter supra; Kaplan supra v. and Roth Slaton, California, 1304 States, 1498, United 1 L. Ed. 2d 77 S. Ct. U.S. generally (1957), all of materials which hold that admitted speak obscenity. subject for themselves on testify possesses expertise to

Whether a witness sufficient subject given trial on within the sound discretion only Its manifest court. ‍​​‌‌‌​‌​​​​‌‌‌‌​​​‌​‌‌‌​​‌​​​​‌‌‌​‌​‌‌‌‌‌‌‌​‌‌‌‌‍determination will be disturbed P.2d Nelson, abuse discretion. State Wn.2d (1967); State v. 58 Wn.2d 360 P.2d 754 Tatum, qualified properly in his Once witness has been experience permitted expertise field of been has testify subject duty question, it on the becomes the worthy opinion is the trier of fact to decide whether opinion. weight given belief and the to be the in this have reviewed the relevant statements fact We Kelly specifi- series of cases as well as the case State cally. qualifications other The of Dr. Jarvis and evidence supportive this trial actions to be found in the court’s opinion. Kelly, §§ 1 and 2-i. We Division II-State v. shall repeat say us It is to our review has convinced it. sufficient (a) in the trial court did not abuse its discretion testimony (b) testimony аdmitting Jarvis, the of Dr. and to the Roth-Memoirs as well was sufficient meet former test present, stringent, test. the less Roth-Miller The trial court is affirmed. Montgomery

B. State v. Arthur —No. County Montgomery charged King Arthur was charged selling two materials. count counts obscene One magazine “Bedplay,” the the other the of a sale of sale picture premises. film color motion to be used off the The guilty defendant and sentenced him on trial court found appeals. both counts. He support following:

There is evidence Carcinogen proprietor is the of the Defendant Smoke Shop. July 29, 1971, On Detective Sanford Seattle shop Department purchase maga- Police a went “Bedplay.” zine entitled plain through clothes,

Dressed in Mr. Sanford browsed Failing magazine displayed, store. find the he in- quired “Bedplay” of defendant whether he had for sale. magazines Defendant it in a of other located stack stating handed it to Mr. Sanford that he had had it on the previously. paid “Bedplay,” Mr. shelf Sanford $9.60 shop left after some conversation.

Approximately an later, hour Mr. returned to Sanford shop inquired purchasing about film. Defendant they told him “had lots of action and in the climaxed film.” pictures looking After on the covers several film con- paid tainers, Mr. defendant Sanford and received the $40 subject roll of color that is film count two.

Nothing gained by description will be another of “Bed- play.” adequately portrayed It in Division II-A-State Kelly. content of film, however, The must be considered legally to determine whether obscene.

The reel of 8-mm color film is contained in a cardboard photo- container on the outside of color which affixed a graph engaging of a nude male and female sexual activ- ity. moving picture enclosed shows nude male and cunnilingus, engaging female in fellatio, fellatio and cunni- lingus being committed at same time, masturbation, positions ejaculation sexual intercourse various body. appears During on what to be seminal fluid a female closeups the course of the film there are numerous of sex- organs. dialogue, recognizable ual There is no sound, or plot. shop

The record indicates that the sells tobacco and a scope dealing of articles wide other than those with sex. On magazines hand, the other sex oriented were located in a couples showing specific nude individu- area with covers management displayed various sex- At counter the als. organs, ually cfildos, simulated sex such as related devices tips, and other similar devices on with erotic condoms articles. deny “Bedplay” or the the sale does

Defendant although principle he had seems be that film. defense His magazine preparing to sale, he was return offered publisher Further, he asserts as nonsalable item. to the magazine, sample and, as he film a mere with was the contents. had not viewed guilty charged on defendant as

The trial court found post-trial motions were denied both counts. Defendant’s findings fact, court its conclusions and the trial entered appeals. judgment and sentence. Defendant law, assignments not, has error. He makes Defendant argued legal position Rather, on each. his case however, presented format that used in this in the same as has been Kelly. adopted opinion, We have Division II-A-State same format. applicable, hereafter, noted defendant as and as

Insofar sup- assignments of error and the same has made similar opinion, porting arguments II-A- in this Division made Kelly, 2-g, 2-j, §§ 2-h, 2-b, 2-c, 2-e, 2-f, 2-i, 2-k, State and 6. Kelly, foregoing of Division II-A-State v.

In the sections rejected arguments. Nothing defendant’s we considered gained repeating them. will be having assignments and re- of error considered been All jected, trial on both counts. we affirm the court Allen Cox — No. 42372 C. State v. Jesse Rogoway Eugene Allen State v. — No. County charged King with one count' Cox was

Jesse A. Rogoway Eugene selling A. material and obscene charged crime. The counts of the same two cases two jury. The trial court for trial without were consolidated charged. guilty as Inasmuch both defendants found appeal appeals their have been con- similar, on issues solidated. Underground Rogoway Arts, owned Unlim-

Defendant Cox ited, a Defendant bookstore located Seattle. employed support the as his clerk. There is evidence following: testimony

Exhibits in of Detective evidence Ger- displayed mano. reveal that almost all items the bookstore portion dealt section with One was devoted to unclad sex. exposed they genitals males, some and in others with were embracing each Other were other. sections devoted to poses exposed. genitals naked females in various with An- paperback dealing other section sex, contained books photographs. some illustrated with In still another area magazines depicting were located and books males and being ropes. females beaten while tied with chains Lo- sexually cated inside the counter were oriented items such vaginas, purported potions dildos, artificial love and sex- ual stimulator devices. February Lamphere 1971,

On Detective entered the looking through magazines, bookstore. After the books and Lamphere Mr. defendant asked Cox where the “animal portion were. He was directed to that books” of the store dealt devoted books which with humans and animals. Lamphere through continued to Officer browse the store finally magazine selected “Sexualia” from standing. which area behind Mr. Cox was counter The through thumbed “Sexualia” and officer while Mr. Cox briefly. they paid Lamphere on Mr. looked talked defendant magazine leaving. for the Cox before $7.50 Habryle February Detective On the Seattle Department plain Police еntered store in clothes and through magazines. magazine He browsed selected Rogo- from the center of counter and asked defendant way checking whether he had others like it. After the stock Rogoway counter, Mr. behind stated it was the last he Habryle purchased Officer had. it and another that was paying counter, each “Color on the beside $7.50 Party” “Fucking Good Time.” only printed material consists of “Sexualia” publica- “Colour-1,” on cover with the word some title page advertising a de- two, tion information on minor magazine scription of the on the front and back covers. photo- magazine pages of color Otherwise the graphs, contains 30 or more of which an unclad male and two show pictures, positioning, unclothed females. Some vividly activity. depict suggest however, sexual Sixteen, among the intercourse, sexual fellatio and masturbation picture the male and the accentuates females. In each the organs. sexual Party” printed than

“Color other no contains material appears title to be the on the front what cover and in address the is color. on back cover. The front cover very graphically pictures Three the four thereon show engaged in sexual two naked women and an unclad man color, in cover, also intercourse fellatio. The back commit- the woman shows ting naked male and female with magazine contains both black white fellatio. The depict photographs. Although a two females and color few fully partially photographs are clad, and a male most persons engaged intercourse, fellatio, cunni- in nude sexual closeups lingus, or- the sexual masturbation, gans. magazine “Fucking Time” in color. Some

The Good depicted, printed material describes activities Rogoway vulgar language. not contend does Defendant printed brings magazine contents of the within material protection Thus, we do of the-First Amendment. reach that issue. magazine price title, cover contains the

The front picture of a $7.50, and the down to marked U.S.A.” “$15.00 engage A on a nude in fellatio male. about to nude female appear picture cover. The on the reverse and title similar photographs a nude male and of 27 consist contents cunnilingus, engaging sometimes in fellatio and female simultaneously, different in several sexual intercourse designed positions. pictures accen- In each case the organs. tuate the sexual assignments appeals in both raise substan- error

tially indicated to the con- Thus, the same issues. unless trary, apply disposition to the the court’s will them appeals Rogoway. of both defendants, Cox and assignments

Defendants have made 22 of error which They legal argued raise several basic issues. have not position legal presented on each. their case in the Rather, Kelly, samе format as State see v. Division II-A-State Kelly. use We will the same format here. applicable, Insofar as hereafter, and as noted defendants assignments sup- have made similar of error and the same porting arguments opinion made this Division II-A-State Kelly, 2-g, §§ 1,2-a, 2-b, 2-d, 2-e, 2-f, 2-k, 4 and 5. foregoing

In Kelly sections of Division II-A-State v. rejected arguments. Nothing we considered and defendants’ gained repeating assignments argu- will be of error, rejecting ments or the court’s reasons for them. argue findings

1. Defendants that of fact fail to support judgment guilty finding a because no states that question the materials in “obscene”. Further, are said there is insufficient to evidence meet the Roth-Memoirs

tripartite standard. findings

First, Rogoway 4, 5, fact and 6 in State v. findings clearly 3, 5, 6 in fact State v. Cox are based upon rigorous tripartite former, more Roth-Memoirs necessary standard and find that each of the three elements support finding “obscenity” to an ultimate exist as a findings factual fully Thus, matter. of fact reach support an ultimate determination that the materials are rejected by setting “obscene”, even under the Memoirs test, “obscenity” component parts. (See forth in terms of the Rogoway 2.) conclusion of 2 law and Cox conclusion of law

Second, we have reviewed record and find support substantial to evidence the above-mentioned find- ings They support turn, of fact. the related conclusions of law.

Finally, findings that are conclusions of law fact and support “ob- to that materials are sufficient determination ” “ ‘utterly redeeming under social value’ scene” without hardly or Memoirs “modicum of value” test of can social test Miller v. said fail less strict substituted 15, 24, L. Ed. 2d S. Ct. California, 413 U.S. (1973): lacks serious liter- work, whole, taken as

whether ary, political, or scientific value. artistic, hold that there is no error. We portrayal matters, the

2. of sexual With reference to the per- objection and did trial court sustained defendants’ testimony present expert toas local con- mit the state community temporary no there was testi- standards. Since mony any particular existed, the trial court standard ques- expert testimony that the materials also excluded community contemporary In this, standards. tion affronted Whether the materials the court into error. defendants led “contemporary “average person”, applying viewed “patently community of- standards”, be considered would “prurient appealing interest in sex” fensive” supra essentially questions of fact. Miller California, community contemporary of local Thus, 4929. the issue subject inquiry. proper for the state’s standards a was provide permitted an offer the trial court with state was testimony. regarding proof Dr. In the offer Jarvis’ opinion proof, in his each of the Jarvis testified that Dr. patently magazines in that it went be- offensive three community relating yond contemporary to the standards display matter. of sexual incorrectly

Although defendants’ sustained triаl court the testimony despite the objection, the lack of on that it ruled community contemporary could, standards it as a subject of had such standards been whether law, decide matter conviction violate the de- would and whether affronted rights. assign Defendants error fendants’ constitutional ruling regard. the trial court’s in this findings A it of the trial of fact makes review court’s ruling light having that the clear its was made in viewed magazines patently three which the considered offen- court they community contemporary sive because affronted stan- description representation relating to dards of sexual opinion In addition, matters. the trial court’s oral makes abundantly three clear it concluded the material in the magazines beyond “obscenity” by far as went defined test. The Roth-Memoirs trial court commented follows: conceiving anything “one has a hard time how could pornography.” ours.) (Italics hard more core We hold trial court committed no error its ultimate determination that the three exhibits were “ob protection scene” and not entitled to of the First Amend by us, ment. The materials court, viewed the trial go beyond any contemporary community far standard re lating to sex whether one considers the former Memoirs test or the current Roth-Miller test. The materials focus upon sexually grossly per an interest in morbid, sexually verse and bizarre without a re modicum of deeming certainly value; and, most no evidence serious literary, political, claim artistic, or scientific for value justification. debauchery The materials no than are more faculty, depicting insult the sexual dirt, vileness and “obscenity” portrayed filth its own sake. is a blow merely sensibility, purpose sense, the obvious main response. of which is to stimulate erotic pornography” The materials here involved “hard core every expression. actually Having sense viewed question, exhibits the trial court committed no error subject considering “obscenity” without addi expert testimony. tional Paris Adult Theatre I Slaton, Kaplan (1973); 49, 37 L. Ed. U.S. 2d 93 Ct. S. v. Cal ifornia, 413 U.S. 37 L. Ed. 2d 93 S. Ct. pornography” speak

Such “hard core can and does for itself question obscenity, according on the to Paris Adult The- 624 supra; Kaplan supra;

atre I Slaton, California, v. v. and Roth v. United 354 States, 476, 1 1498, U.S. L. Ed. 2d 77 Ct. 1304 S. (2d (1957). Wild, See also United States v. 422 F.2d 36 1969), (1971), rehearing denied, cert. 402 986 de Cir. U.S. (1971); nied, States, 403U.S. 940 Kahm v. United 300F.2d 78 (5th 1962); Donnenberg App. State, Cir. 1 Md. testimony (1967). by anthropol 232 A.2d 264 No amount ogists, sociologists, psychiatrists, psychologists could have ability anything to trial to added the court’s determine comply any contemporary failed to com materials munity to sexual matters. standards related independent con- own review the materials has

Our they appeal prurient vinced us that to the interest in sex beyond customary go is of that which far limits way. patently to offensive in a sexual deemed finding that in 3. It is asserted that the trial court erred appealed displayed premises all materials on the almost prurient exploited the that defendants interest sex and prurient interest. materials for the sake of facts and exhibits have the statement of We reviewed assignments not of error involved and conclude support each is evidence well taken. There substantial challenged findings. That is sufficient. Assignments 22 16,19 and have 6,10,13, 4. of error any heading specifically argued in defend not under been although them indi have discussed brief, thus, we ants’ unnecessary subheadings, rectly it is discuss under other Assignments specifically that are error at this time. them Boggs, argued 80 State v. are waived. brief (1972); Ozanne, Wn.2d P.2d State 427, Wn.2d 546, 452 P.2d 745 consolidated in both cases trial affirmed court

trial. Frank, Howard C. Inc. & Distributors, v. J-R State D. No. 423271. Spokane Magazine Inc., owner Distributors,

J-R center, at the were Frank, a clerk Center, Howard Spokane County charged selling with two counts ob- publications. guilty A them scene trial court found They charged. appeal. following: support

There evidence Spokane On December 1970, Officer Smith Department Spokane Magazine Police went to the Center. He into sections, found store divided two one of which posted Upon entering “No one under 21”. section, that magazine Mr. Smith selected the “Answers” and took to defendant Frank a on who looked at number the cover and copy storage a a obtained from area. oppor-

Officer Smith asked Mr. Frank he whether had an tunity magazines. replied, to read all of the “No, Mr. Frank get pictures.” paid but I to see all the Thereafter the officer magazine departed. $5.25, Frank took the and January Wynne Spokane 15, 1971, On of Detective Department store, Police entered the went to the 21” “over section and a selected book entitled “Sex Between Humans presented Animals”,

and 2. Volume He its number to Mr. copy paying and a Frank, received from stock after $4.75. During Wynne the transaction Officer asked Frank Mr. pictures whether he had seen the in the book. Mr. Frank replied proceeded that he had and to show the a officer catalog showing who, a female named the “Pork ac- Girl” cording becoming popular to Mr. Frank, was in Sweden. assignments

To in of aid the consideration one of the error, both and Ani- “Answers” Between Humans and “Sex pages mals” are described hereafter. “Answers” contains 71 of written as material well as black and white and color part, photographs of men and who are, women for the most price, photograph nude. The cover a title, consists partial a man embrace, naked and woman in an list of contents and the statement: “Educational Material For Only prohibited.” to Adults minors —Sale pub- begins with an “Answers” editorial which states the frankly accurately policy “dealing on and with such lisher’s pornography, oral sex matters and the law”. Its stated purpose is: forgot- and educate, to reawaken the known inform; inspire unknown, learned; the never to illus- ten; spirit openly and with . . . and verbalize

trate justified pointing publications policy The editorial publications accepted Denmark, numerous authorized and the President’s Commission on Por- States United Obscenity. nography and accompanied several black and white editorial is

The committing photographs nude males and females fellatio reasonably pictures cunnilingus. not These rationally not to its to the editorial and are relevant related publication is a mere vehicle theme. The editorial pictures. “Young article, Sex”, dis- first entitled Girls may young girl. pitfalls await uninformed cusses nothing former violative Roth- The article contains present Accompany- test or the Roth-Miller test. Memoirs photograph ing white article, however, is black and boy girl together photographs of with several a nude provocative poses. possible girl It various might photographs declared under “obscene” these Burgin holding Carolina, 404 L. v. South U.S. 30 the Burgin, rev’g (1971), Ct. State v. 255 39, 92 Ed. 2d S. photographs The are men- 237, S.C. S.E.2d they illustrate the manner in however, because tioned, magazine composed. photo- has been These which graphs, appear in like those which the editorial and most magazine, appear in have no elsewhere reason- which relationship to article and not able and rational to its theme. It is obvious that the article has been relevant publish photographs. a vehicle to used as mere appears develop Obsolete”, “Is Penis a article, The may conception possible that human become without theme leaving participation male, a of the thus world women. conception means various of artificial The text discusses parenthood may purely become and concludes socio- socio-biological. logical rather than function Neither appear past nor Roth-Miller test test Roth-Memoirs Nothing article, however, have been violated. in the has accompanying remote connection with the black and white photographs engaged cunnilingus, of naked women or using singly pairs, dildos, who are shown or in or who have using photographed been mechanical devices for masturba- photographs tion. neither a have reasonable nor ra- relationship tional to the article. It is a mere vehicle for publication photographs. Marriage,” purports

Another article, “Sex to be a re- view of a 2-volume work the same title. We are upon called to evaluate the books reviewed and do not attempt any, to do so. The written review contains if little, material violative of either the older Roth-Memoirs standard or the current Roth-Miller test. although purports

We hold the review to discuss a marriage, actually 2-volume work on sex in it is a mere graphic photographs vehicle to show of a nude male and engaged cunnilingus, female in sexual intercourse, fellatio party, pоsi- and masturbation the other each several photographs reasonably rationally tions. The are not or related to review or its theme.

An entitled, article “The Pill”, contains neither written photographs material nor that would run afoul of either the Roth-Memoirs test or the Roth-Miller test and needs not way It however, discussed further. connected in no the written materials which are discussed above or which shall be discussed later. Psychologist’s

“From the Casebook,” has the same bor- literary derline value as the above-mentioned articles and does not run afoul of either of the above-mentioned stan- accompanying Nevertheless, dards. black and white photographs of naked women naked men and women engaged cunnilingus, in masturbation, fellatio, and have absolutely relationship no reasonable or rational Clearly, article or its theme. it ais mere vehicle to exhibit photographs. Japan” purports An article Art entitled “The Erotic of Japanese discuss ancient art, erotic now said to unac- be place origin. ceptable of in article refers its neither to a totality picture specific to the Thus, nor thereof. we are led conclusion that article is no than to the more inevitable publishing pictures of sexual in intercourse a vehicle cunnilingus, many party positions, masturbation of one sodomy. anal another and Sexy

Finally, purports “Those the article Scandinavians” of the moral attitudes and of some standards discuss only passing, people. mentions, It in those Scandina- pornography relating are more lenient than vian laws accompanied by article the United States. The is those in photographs and color and white unclad both black engaged in acts of females numerous cunnilin- males and penises ejaculating gus, intercourse, sexual on the fellatio, the mouths females as well as in the use faces or by masturbating females. dildos absolutely relationship no reasonable or rational

There printed anything portion article between photographs photographs contained therein. The are logic article’s to the theme unless can tor- not relevant be pseudo-relevance relevant. A make the connection tured to only by reasoning that found the article indicates could be pictures legal although pornographic Denmark, are ille- necessary gal thereafter, be would reach the here; pictures maga- illogical shown in conclusion they merely legal instance, because zine, must, this legal legal pro- in Denmark. In the that which illustrate “boot-strapping.” to as this is referred fession Between Humans and Animals” no “Sex has The book or back It on either front cover. is said to be illustration presentation psycho-mythic photo-illustrated “the bestiality.” pages meaning The first several of a consist publication. A pictures in the contained review of the list picture most, if all, reveals that from “credits” foreign A private are from countries. few are collections locality Thus, whose is unknown. to draftsmen attributed anything nothing private other than to indicate there is acceptance. provocative title, textual mate- Aside from book’s virtually nothing presents rial violative of either the Roth- example, Memoirs or the Roth-Miller test. For the first why bestiality section with The text is filled deals occurs. quotations with from numerous authors who discuss psychological accompa- basis for acts. This such section is by pictures. nied black and white and color chapter seeking “satisfactory The next is devoted to a psycho-mythic meaning bestiality. answer” in the It as- imagination serts that an man is animal with a fertile and development thereafter discusses the of the of man brain general. by and in vertebrates This is followed a discussion symbolic and behavior. Man is conscious/unconscious symbol-manipulating sym- a discussed as animal who uses deliberately bols both on the unconscious level.

Finally, depicted it states that man has animals art or early age. dreamed of them from an It is asserted that subject bestiality might man’s fascination with the indi- cate his desire return state, animal or a fear that may forbidding such bestiality return occur. Man’s laws express accompanied said to the latter fear. This section is pictures. black and white chapter merely The book closes a which discusses symbolic meaning history of various animals in today. accompanied by pictures. It is black and white “Legal Appendix”

At the back the book a defines the penalties against offense forth and sets for crimes na- any military. ture if committed in or in states pictures. This is also followed black and white and color Immediately “Glossary following defining is a of Terms” sexually denominating numerous oriented terms and them slang, vulgar. as medical, conversational or Black and white pictures accompany also this section. “Bibliography”

The book closes with a and “Recom- Reading” mended as well as an index. nothing

The textual material contains little that would violate either Roth-Memoirs or the Roth-Miller tests of pictures (photographs,

obscenity. of the 77 color- Most interspersed paintings) plates, drawings, the text pictorial however, theme that book, have dominant actually engaged portrays graphically women nude sex- cunnilingus with animals. intercourse, fellatio ual merely pictures suggest these acts. Other Some, however, of fellatio masturbation and act between show female important It to note that there man and woman. nude relationship absolutely no reasonable rational between any any pictures part of the book or its theme. of the and pictures pictures do the neither mentions the nor The book nothing fact, In contained either in the the text. refer any the connection or in defendants’ brief indicates book pictures the and the book. lack correlation between Such pictures theme the the textual and or relevance between by Clearly, particularly noted witness Stroh. the book was pictures. the text is a vehicle to exhibit mere reference to and In both “Answers” “Sex Between specifically argue defendants not Animals”, and do Humans printed presence complies material which that mere automatically places a test, First with the Roth-Memoirs accompanying protective mantle over obscene Amendment vague suggestion pictures. that However, a vein does argument a seem be made. We assume similar position the Roth-Miller test. a be made under Such would legal Wisconsin, Kois v. 229, sanction. 408 U.S. without (1972), 2245 has a 312, 2d Ct. devised 33 L. Ed. S. generally provides pictures which if commonsense test accompany material, text itself not considered obscene accompanying pictures which test, the Roth under protected otherwise violate Roth will be First would they (1) are to the if relevant theme of Amendment relationship (2) and rational article, have reasonable publica (3) text, the text is not a mere vehicle for pictures. in Miller v. California, tion of the The court (1973), gave 419, 37 Ed. 2d 93 S. Ct. 2607 an 26, L. U.S. example material that the Kois of illustrative would meet phy- example, medical for the education of “For books test: necessarily graphic personnel use illus- and related sicians anatomy.” descriptions of human The court, trations interesting page “A observation, made 231: also Kois, flyleaf quotation in the book not from will Voltaire constitutionally publication obscene redeem otherwise carefully our noted in review of “Answers” and

As “Sex requisite Animals”, Humans and Between reasonable relationship printed between the and rational material and pictures photographs The are not is nonexistent. relevant they appear. in which the theme articles The articles merely exhibiting pic- the books are vehicles tures. pictures protection by acquire no First Amendment being interspersed through

the sole fact of included in or might protected by text material that itself be First supra. Amendment under the Roth test. Kois v. Wisconsin, Logically, specific, ‍​​‌‌‌​‌​​​​‌‌‌‌​​​‌​‌‌‌​​‌​​​​‌‌‌​‌​‌‌‌‌‌‌‌​‌‌‌‌‍the same would true under the more current, Roth-Miller test. Obscene materials protected the First Amendment. Roth v. States, United (1957); U.S. 1 L. Ed. 2d 77 S. Ct. 1304 United States v. Reidel, 402 U.S. 28 L. Ed. 2d Ct. 813, 91 S. pictures protected by Thus, the will not be the they First Amendment if obscene, are and are not other- protected by wise the Kois rule. question, pictures basic then, is whether the before standing

us, are alone, obscene under the Roth-Miller test. they they If pro- are, are not entitled to First Amendment tection. assignments

Defendants made 14 have of error which They argued legal several raise basic issues. have not the position presented on Rather, each. their case is the Kelly. format same as that used in Division II-A-State v. again We will use the same format. applicable,

Insofar as and as noted hereafter, defendants assignments sup- made similar have of error and the same arguments porting opinion found this Division II-A-State Kelly, 2-g, §§ 2-a, 2-b, 2-d, 2-e, and 5. We considered and Nothing gained rejected repetition of them. will be each point. other at We shall discuss contentions. this photographs contend that the

1. Defendants in “Answers” and Between illustrations “Sex Humans they appeal not not to are obscene because would Animals” average person. “prurient the interest” the Their reason- entirely They ing is circular. assert that the material is so sexually repulse average abhorrent that would man appeal “prurient an to his rather than create interest.” say, they pictures not Thus, obscene. Defendants supporting no and we have none to have cited cases found theory. support spurious fact, In the law to the such contrary. York, v. New Ed. In Mishkin 16 L. U.S. (1966), Supreme Ct. 958 the United States 2d 86 S. argument. with a It had this Court confronted similar say page 508: appellant’s regarding sole Indeed, of contention the nature in this material is that some books involved depicting prac- prosecution, various those deviant sexual flagellation, fetishism, lesbianism, as do such tices, they satisfy requirement prurient-appeal because not “average per- prurient appeal interest of the do not they stimulating sex, and' sicken.” We erotic, “instead of son” in that reject argument being disgust this interpretation prurient- on unrealistic founded appeal requirement. omitted.)

(Footnote argument Logically, is a virtual defendants’ concession than obscene. It is materials are worse said average “prurient they appeal man’s in- would they sexually abhorrent to would because terest in sex” him. obscenity displayed the two true, If this pornography” “hard questioned core amounts exhibits strongest in this our discussion contained sense. See its Rogoway, § opinion. v. Cox II-C-State State Division 2. by per- the that court erred also contend 2. Defendants questioned mitting to the two state whether Stroh witness tripartite criteria Roth-Memoirs. meet the exhibits

633 parent, is a an educator that Mr. Stroh indicates record taught years experience for has social studies who with 19 community years, nearly that a resident he is 15 and obscenity to It was be tested. is which standard necessary expertise position he lacked the defendants’ opinion. an render following he examined both exhibits which ex- Mr. Stroh lay pressed, theme of terms, that the dominant albeit photo- appealed prurient sex; each interest in pictures patently graphs in each offensive in that and were they community contemporary were affront standards utterly relating matters; and, to sexual the materials were redeeming meeting value, without social thus the Roth- rigorous Memoirs as well as the less Roth-Miller test. His appeared testimony primarily photographs to relate pictures than rather to the textual content of the ex- virtually hibits. He found no correlation between the text pictures photographs. and the properly qualified

Whether witness to render an opinion within the sound discretion court. v. State (1967); Nelson, 269, 72 Wn.2d 276, 432 P.2d 857 State (1961). Tatum, 76, 58 Wn.2d 754 73, P.2d In instant clearly expressed case, the court that it would consider Mr. qualifications weight going Stroh’s to of the evi- sitting jury, court, dence. The trial as it did without a did not abuse its discretion. foregoing

3. produce In addition to the the state did not any “expert testimony” other affirmative that the materials were “obscene”. The exhibits were in evidence, however, and were considered the trial court. require

It error for the trial court to further no “expert” affirmative evidence that the materials “ob- were placed scene” since the materials themselves had been evidence. Paris Adult Theatre I Slaton, 49, U.S. (1973) Kaplan L. Ed. 2d 93 S. Ct. 2628 v. California, 37 Ed. U.S. L. 2d 93 S. Ct. 2680 The ex- they represent hibits were the best of what evidence were sufficient in themselves determination “obscenity” according Kaplan.

question to both Paris and of properly could have considered the Thus, the trial court legal impact or Mr. of exhibits either with without both testimony. Stroh’s findings of fact makes it that the of the evident

A review pictures photographs the and contained court deemed pornography”. thought core The same “hard both exhibits clearly opinion. expressed in the court’s oral We have is hold that the materials and under either reviewed or the Roth-Miller test the materials are in Roth-Memoirs pornography”. The trial court committed no “hard core fact error. finding the trial court erred in contend

4. Defendants challenged two material, exhibits, in the had ut- they Again redeeming terly value. defense no social assert publications experts that both had of testified modicum position is indefensible two social value. Defendants’ required to, First, the trial court was not reasons. obviously experts their not, believe defendants’ or view did “redeeming Second, test social value”. the Memoirs “obscenity” definition of materials that from the excluded longer is no some “modicum social value” law. have Supreme previously indicated, the United Court States As rejected “utterly redeeming completely without social supra. Miller v. California, value” test in charge that the vein, defendants court erred In same by considering “pandering” ques- the books in evidence of subject properly was not in the It is said that this tion. Kelly, § However, as we said in Division II-A-State v. case. setting allegedly in which of the obscene ma- 2-a, evidence they purveyed, or the manner in which are- terials are purveyed question is relevant “value” whether rejected is Memoirs- a “modicum social value” under the materials takеn as a lack test or whether whole “seri- political, literary, or artistic, scientific value” under ous present inquiry event, test. In either into Roth-Miller or the manner sale exhibition or consideration “pandering” permissible to determine whether an as- spurious. Nothing gained will “value” real serted Kelly. by repetition of It is that section State v. sufficient say findings that the trial court’s of fact ultimate “obscenity” are not in conclusion of error. photo- pictures

5. In conclusion, hold that the we graphs in and “Sex Humans and Ani- “Answers” Between fight rejected mals” are viewed in “obscene” whether newly adopted Memoirs test or Roth-Miller stan- they pornography”. In fact, dards. are “hard core We also above, that hold, as indicated there is no reasonable and relationship pub- rational between the text or theme of the pictures photographs and the lications contained therein. The text is a mere vehicle the exhibition of obscene pictures. pictures photographs Thus, the fact and are combined with nonobscene text does not material protection them clothe of the Amendment. First The trial court is affirmed.

Ill Exhibition of Films A. State v. Kravitz, Samuel No. 42376.

State v. Albert Thomas Duane, No. 42377. The defendants, Duane, Samuel Kravitz and Thomas jointly by They guilty, were tried charged, the court. found as were eight exhibiting counts of an obscene motion They picture. appeal. support following:

There is evidence to On June 3, 1971, Detective Police Germann of Seattle Department visited Adult Book in He Store Seattle. accompanied by was other officers. being

The store sections, was divided into two one theater other a small and the bookstore devoted to the sale sexually arranged oriented materials. The was store so pertaining to that materials homosexual activities were lo- appealing activity in area, one those to heterosexual cated pertaining area, another those in and to sadism and mas- sexually area. still a different The store also sold ochism objects organs dildos, sex such artificial oriented and items. other sex police moving pictures then

The went to the store to film being eight pictures being exhibited the theater. The spliced for continuous exhi- shown were color and were “In- untitled, bition. Two were the others were entitled: “Daddy,” “Tryst,” Mate,” “Rubber Duck” truder,” “Passive “Vegetable Girl.” only It testified that one of the films had actual was badly garbled it unin- track, so that was sound but was telligible. little or no conversation was, however, There among people of the sound shown therein. The balance police primarily officers track devoted to music. was tapes on sound, was, such as it cassette recorded played them at the trial. operated theater, in the Officer Smith

While darkened took detailed notes the camera while Officer Germann displаyed sequences on screen. It of the action time every necessary change film 20 min- for the officers was approximately during one to three minutes time utes which projected picture lost. The time was noted segments viewing during omitted of the film the a second provide copy of the entire set movies filmed to were projected. police film instead of black and white

The used sensitive encountered, color conditions because, color film under the sensitivity reproduce light the color film lacked sufficient projected. film projected per 24at frames second.

Defendants’ film was copied and white film at 12 it on the black However, was “synchronization” possi- per and a to avoid frames second pictures projected At trial the on the screen. of the ble loss per film exhibited 18 frames second. and white black slight timing that the difference in trial court found eye upon the untrained other than an or no effect had little speed of the action. in the increase eight court concerned, films are the trial as Insofar every possible type portrayed of sexual that each found sequences and female and in some activity a male between persons. among three Our own occurred activities such

637 viewing being raped films revealed chained woman ways fellatio; various and forced to commit other se- willing quences engagement cunnilingus, in fellatio, showed positions, sexual intercourse in numerous masturbation perver- females males and vice versa and other sexual sions. guilty eight

The trial court found defendants on all They appeal. counts. They assignments have made

Defendants error. argued legal position not have on Rather, each. their presented case is in the same format as that used in Divi- Kelly. again adopted sion v. II-A-State We have the same format. applicable,

Insofar as hereafter, noted defendants assignments sup- have made similar porting arguments of error and the same opinion,

made in this II-A- Division Kelly, 2-g, 2-j, §§ 2-b, 1, 2-a, 2-e, State 2-c, 2-f, 2-h, 2-i, 2-k, 4 and 6. foregoing Kelly

In sections of Division II-A-State v. rejected Repeti- arguments. we considered and defendants’ purpose. tion here will serve no shall, however, We discuss several additional contentions. argue prohibition

1. Defendants of RCW (2) not 9.68.010 is limited to the exhibition of obscene films commercially. urged to others or even It is that the statute prohibit private showing pri- would self one’s in the vacy Stanley Georgia, one’s own home violation of (1969). L. Ed. 2d 89 Ct. 1243 Thus, U.S. S. encompasses said, the statute overbroad as it within activity may constitutionally pro- its terms which citing Winters v. scribed, York, New U.S. 92 L. Ed. agree do not 840, 68 S. Ct. 665 We with defendants’ disagree interpretation of the statute. alsoWe their unconstitutionally that it is assertion overbroad. 9.68.010(2) proscribes (a) causing

RCW to be ex any picture (b) of or the exhibition motion hibited which Ordinary English usage excludes defendants’ is obscene. proscribes possession mere that the statute onе’s contention privacy film of his home. Webster’s of an obscene in the own Dictionary (1966) Third New International defines exhibit as follows: present . . : to vt 1 : to to : . d view Display Show, publicly put display to attract notice show : on order purposes interesting or or for what is instructive competition . n -s or . . 1 : act or demonstration exhibiting 2 : : ... instance Display, Exhibition

something specif or a collection of exhibited; : an article displayed . . . articles an exhibition Exhibition is defined: evincing, showing showing, off

1 : an act . or or instance of display public showing a . . or ... 3 : show object display is the chief or show from profit itself where expects to derive a or which the exhibitor derives . . . Dictionary Collegiate

Accord, Webster’s Seventh New (1969).

Clearly, causing exhibiting or an exhibition act private possession not of materials does refer the mere privacy Rather, it refers to one’s home. own bring engaging act, assist of another to about viewing display therein. It to a materials refers persons. not the found unconstitu- other This was evil by Stanley Georgia, supra. striking In down tional Geor- private posses- gia’s high that statute, court held mere constitutionally be made sion obscene matter cannot Stanley disagree. Nevertheless, crime. We do must light L. Reidel, read in of United U.S. States page At Ed. 2d 91 Ct. Reidel said S. Stanley holding in Roth. disturbed the nor neither overruled power said, retain have States broad . As we . . obscenity; power simply regulate does not extend privacy his possession in the the individual to mere own home. and “exhibition” defined “exhibit” words

When 9.68.010(2) usage, English does according RCW to common

639 Stanley. proscribe It not not violate does an' individual’s privacy possession of in the own obscene materials his by permitted proscribes sale Rather, Reidel, home. as the exhibiting the exhibition of obscene materials others. interpreted according English statute,

The to common unconstitutionally usage not is overbroad. See Dombrowski 479, 491-92, 22, 380 14 L. Ed. Ct. Pfister, U.S. 2d 85 S. (1959); see 1116 also Paris Adult Theatre I v. 413 Slaton, (1973); Kaplan 446, U.S. L. Ed. 2d S. 93 Ct. 2628 California, U.S. 37 L. 2d Ed. 93 S. Ct. 2680 (1973); The Doctrine, First Amendment Overbreadth Harv. L. Rev. 844 “legitimate regulating

This state has a interest com- regulating merce in obscene material and in exhibition places public obscene material in accommodation, includ- ing so-called ‘adult’ theatres from which ex- minors are supra cluded.” Paris I Adult Theatre v. Slaton, at 69.

2. Defendants assert that the trial court erred admit- ting reproduction a black and white of an color obscene reproduction film. It that is contended at must least be copy original having quality, exact film, the same speed original. and taken and at shown the same as the Under the circumstances this case we hold that trial court committed no error. important

It that note defendants do claim lay a state failed to foundation for admission sufficient copies the state’s exhibits as Rather, the defendants’ film. objection goes reproduced the basic to the admission of the film itself. repro

The manner which defendants’ film was duced and the reasons for use of black and white films explained repeat have been above. We shall not It them. say enough support that there is substantial evidence to finding speed the trial court’s differences in the reproduction, taking film, and white the black its exhibiting thereof trial had little or no effect on eye. only average slight or untrained The effect was a speeding also is substantial evidence of the action. There complete. explained reproduction Thus, was reproduced film, the result was filmed and those who image original sufficiently reproduction of the accurate they projected were, differences, such as on the screen. admissibility weight go of the exhibits. not the to the would suggest there a material differ Defendants was repro original color whereas ence because the agree do not that the in black and white. We duction was copy, as trial court viewed the difference material. The was that the differenc'd and do not hold did we. We cannot have not furnished a matter of law. Defendants material as support position any their and we citation us with not abuse that the trial court did hold of none. We aware admitting copy by under the circum the its discretion it. stances before by produced the track assert that the sound

Defendants garbled and unintel- police, court, admitted was and ligible. there is substantial above, however, indicated As only that track, had a of the films sound one evidence original itself that the and little conversation it contained remaining unintelligible. garbled tracks The sound was primarily Thus, there is substantial to music. were devoted reproduced not materi- were sound tracks that the evidence originals. ally trial court committed than the different by admitting copy. however, error, If it was no error reproduction unintelligible copy an was harmless. The was unintelligible. original itself which was of an copy argue and white Finally, that the black defendants the best evidence under inadmissible color film was properly only original admis- contending was rule, agree. not sible. We do us whether not informed have

First, defendants “original” was in fact film was own the defendants’ —or theaters are copy. films shown In most cases a mere pictures filming the originals. reason Second, the state’s not.pre It did obvious. projected screen on defendants’ prior exhibiting a film, absent defendants.from vent obscenity. adversary Third, as indicated determination transcript, supplemental the state brief, and the the state’s produce sought film. the color to force the defendants beyond the have been useless Further demand would power there was Thus, the demand. enforce trial court’s proper copies laying after for use of the basis sufficient P. 465, 470-71, 151 Morden, v. 87 Wash. State foundation. (1915); 495, 349 P.2d Beck, 56 Wn.2d see State eight on all counts. is affirmed The trial сourt Tidyman, No. Michael 42429. James B. State Tidyman, guilty jury defendant, James A found ap- exhibiting picture. motion an obscene He one count peals. support following:

There is evidence 25, 1971,Detectives On October Germann Gruber Department to the Flick Theater Police went the Seattle picture purpose filming moving for the entitled Seattle They Way accompanied Right To Do It.” were “The tape police photographer equipped with a recorder and a containing film. movie camera black white 16-mm Way Right To Do It” in color with a sound “The approximately running It consisted of 30 minutes’ track. that testified, however, the sound track time. The officers unintelligible garbled that the words could not was so be understood. portrayed persons, two females and a

The movie three The consisted of male, from the start. movie all unclad cunnilingus, persons engaged and sexual fellatio, three positions. pictures The were taken in numerous intercourse organs engaged those so as to accentuate sexual activity. sexual pro- photograph picture proceeded to

The officers jected but, The sound track was also recorded on the screen. mostly procedures unintelligible. original, was like the substantially moving picture filming were used for Kravitz, 42376, No. State those used v. same as State III-A in Division above. Duane, v. No. consolidated copy very The resultant was black and white. A short part section grainy the first of the black and white film was majority, however, difficult to view. The was viewing. clear for Right Way being

While “The To Do It” de- filmed, was Tidyman by fendant was interviewed Detective Gruber. Defendant indicated that some of his customers were dis- pleased couples because the film of mixed showed some manager races. that, The conversation revealed as also the theater, he hired four clerks assist him. jury

Defendant of one was tried and convicted appeals. exhibiting picture. count of He obscene motion applicable, defendant hereafter, Insofar as and as noted sup- assignments has of error and the same made similar porting opinion, arguments II-A- in this Division made 2-j, Kelly, 2-g, §§ 2-i, 2-b, 2-c, 2-f, 2-h, 2-a, 2-e, State assignments of 4, 5 and made similar 2-k, 6. Defendant also opinion, supporting arguments error in this and the same §§ Duane, v. Kravitz and 1 and Division III-A-State State 2. foregoing Kelly In the sections Division II-A-State v. and Division III-A-State v. Kravitz and v. Duane we State rejected arguments. Nothing considered and defendants’ gained repeating those Additional will be discussions. considered, contentions will be however. permitted express opinion that

1. Dr. Jarvis was his patently moving picture, involved, here offensive community beyond contemporary going standards relat- utterly ing to sex and the movie was without redeem- ing permitted social value. Defendant was cross-ex- Dr. Jarvis as to his awareness number amine pictures or to theaters in the area exhibited similar theaters. cross-examine him on the attendance those ruling. assigns trial court’s He Defendant error prohibited showing contends that he was thus from contrary opinion, that, to Dr. Jarvis’ cross-examination community acceptance that adults should be there is free

643 despite explicit sexual their of choice to view movies thereof. nature permit refusing to such in trial did not err

The court opin- Dr. Jarvis based his of Dr. Jarvis. cross-examination community upon contemporary conversa- standards ion of people metro- Seattle-Tacoma tions with numerous experience background politan area, as on his as well upon opinion psychiatrist. his He base as a did not showing Ave- on First obscene movies number theaters attending people upon the number Seattle, nue those theaters. peculiarly scope

The is within of cross-examination province of its trial whose determination of the court there is manifest unless boundaries be disturbed will Etheridge, 443 102, abuse of 74 Wn.2d discretion. State v. (1968); 327, P.2d Eichman, P.2d 536 Wn.2d State no of dis abuse In the instant case there was proposed Jar Dr. cretion. Defendant’s cross-examination beyond scope gone of the direct vis would far have assuming public Further, some examination. even may permit censorship, feeling abhor should adults sexually explicit ted to view movies that are exhibited commercially, subject have on would cross-examination been wide of the mark. issue is not whether some public may disregard censorship disapprove laws, of or but whether under the the material censored “obscene” tripartite may oppose People well test Miller. thought any yet agree censorship form and that the beyond sought goes material to be censored well which any acceptable contemporary community under stan pointed dealing dards with sex. out in Miller v. As Califor (1973), citing nia, 413U.S. 37 L. Ed. 2d 93 S. Ct. 502, 508-09, 16 L. Ed. 2d York, 383 v. New U.S. Mishkin requiring primary (1966), concern with Ct. 958 86 S. jury “ person, apply average apply ‘the the standard community contemporary ing is to be certain standards’ group, not aimed a deviant far as material is that, so person, judged by impact average on an its rather bewill 644 particularly susceptible person-

than a or sensitive in-—or totally deed a insensitive one.” sought by

The evidence to be elicited from Dr. Jarvis means of cross-examination was not material to issue the sought If before the the court. matter to be is not elicited bearing upon credibility material no and has of the properly witness, it is excluded on State cross-examination. (1933); v. Kwan, 174 Wash. 25 Eich- P.2d 104 State v. supra. man, attempted same vein,

2. In the defendant to estab- contemporary community lish a that there was standard acceptance of kind of this film the Area. Greater Seattle by sought having police testify He to do this a officer that similar films were exhibited 12 13 ‍​​‌‌‌​‌​​​​‌‌‌‌​​​‌​‌‌‌​​‌​​​​‌‌‌​‌​‌‌‌‌‌‌‌​‌‌‌‌‍to a theaters, very limited a audience, restricted area оf Seattle. properly rejected trial court the evidence. The fact may may others have exhibited films obscene have probative violated the not law is issues before the trial court here.

The trial court was correct for other First, reasons. predicate accepta- questioned for a conclusion that a film is community contemporary compari- ble under standards, questioned son films, with other must be that the film and proffered films are in fact similar. Under the circum- way jury stances of this case there no to have compared similarity, or Second, lack thereof. to be admissi- probative weight. ble, have Here, evidence must some comparison microscopic portion such a involved one over community million inhabitants Greater Seattle contemporary been could have relevant to establish community severely comparison, standards. Such limited people, both area and numbers of would fail to show degree community acceptance ques- reasonable of the picture alleged tioned or even the films be similar. To proffered something relevant have more evidence must probative than minimal value. It have some actual must probative upon weight fact the issue of under considera- tion.

645 immediately pre In in the addition the reasons stated ceding case, fact that other subsection instant alleged films to be similar were exhibited in limited areas person, average applying of Seattle is no indication that the contemporary community standards would not consider the (2d film Manarite, obscene. United States v. 448 F.2d 583 Cir.), (1971); cert. denied, 404 U.S. 947 Womack (D.C. Cir.), States, United denied, F.2d cert. (1961). People Accord, Finkelstein, U.S. 859 N.Y.2d 183 N.E.2d 661

The trial court is affirmed.

Conclusion I Dismissal of State’s Case State v. Michael J. Kristek, No. 42375. The trial court is affirmed.

II Cases Sales Kelly, A. State v. Thomas F. No. 42385. The trial court is affirmed on both counts. Montgomery,

B. State v. Arthur No. 42374.The trial court is affirmed on both counts.

C. State v. Jesse Allen Cox, No. 42372. The trial court is affirmed. Eugene Rogoway,

State v. Allen No. 42373. The trial court is affirmed on both counts.

D. State v. J-R Distributors, Inc. & Frank, Howard C. No. 42371.The trial court is affirmed on both counts.

III Exhibition of Films Kravitz, Samuel No. 42376. The trial A. State v. court is eight affirmed on all counts. Albert Duane,

State v. Thomas No. The trial 42377. eight court is on all affirmed counts. Tidyman, trial v. James Michael No. 42429. The

B. State court is affirmed.

Hale, C.J., Finley, Hunter, Hamilton, JJ., and Wright, concur. (concurring) Obscenity complex a J.

Finley, — only legislative socio-legal problem not difficult judicial gov- for the branches, executive but also branch largely views, ideas, and no- ernment. This is so because obscenity concerning changeless or absolute. tions may significantly well differ views, ideas, Such and notions eyes such beholder, in the as well as in terms of of the embracing place, time, circumstance, variant factors among things and manner of context, format, other Obscenity presentation. cannot be considered the ab- purely philоsophical or reference stract or academic presented appellate Atten- court. when in a case before an press given tion must be and freedom freedom speech. legal restriction, words, restraint, or In other social obscenity police regulation any alleged under state power subject against the constitu- to and must be tested rights press speech of those affected tional of free and free obscenity. complaint charge evaluation Judicial only necessary, proper and tradi- and decision is not it is a judicial government. tional In this function the branch majority by Burger opinion in context, the Chief Justice I 37 L. Slaton, 49, n.10, Paris Theatre 60 Adult v. 413 U.S. following: (1973) 446, Ed. 2d 93 2628 observed the S. Ct. law, “In in area the which this and other cases this ever-increasing coming are numbers, we to in us rights to individu- basic both faced with the resolution society Specifically, we are called to as a whole. als and right upon States the Nation and of to reconcile the society and, on the other to maintain a decent express right themselves to hand, of individuals freely guarantees of the First and in accordance with supra Ohio, [378 v. Jacobellis Fourteenth Amendments.” U. S. dissenting). (1964)] (Warren, J.,C. at 199 attempted Supreme to evolve Court The United States obscenity and relative to formula workable understandable, press speech in v. and Roth freedoms of Amendment First 1498, Ed. 2d 77 S. Ct. 1304 476, 1 L. States, United 354 U.S. (1957) 413, 16 L. Massachusetts, 383 U.S. and Memoirs in The efforts Roth 1, Ed. Ct. 975 2d S. disappointing proved in terms of Memoirs to be rather clarity amenability legislative, application to state judicial government. In this executive, and branches writing majority regard, Burger, in for the Chief Justice Miller 419, 413 U.S. 37 L. Ed. 2d 93 S. Ct. California, (1973), commented as follows: certainly absence, Roth, It is true since

single majority proper view of this stan- Court as testing obscenity placed dards for has a strain on both today, state and federal courts. But for the first time majority since Roth decided in of this Court agreed guidelines on to isolate has pornography Amendment. concrete “hard core” expression protected by from the First majority Despite regarding Miller this assurance of the guidelines”, opinion “concrete Miller written case confusing disappointing at It is somewhat first blush. subjected analysis read times and must be several close study kind of careful and examination. this and eval- Given uation, an understandable and workable formula relative to my obscenity, clearly judgment, best becomes discernible application respective amenable branches of obscenity government. our state This new formula is enun- following ciated in Miller in the manner: guidelines (a) The basic for the trier of fact must be: person, average applying contemporary whether “the community standards” that the work, would find taken as appeals prurient interest, a sin, United whole Kois v. Wiscon- supra, (1972)], quoting [408 U. S. 229 at Roth v. supra, (b) States, 489; de- whether work picts wаy, patently describes, in a sexual con- offensive specifically by applicable and law; duct defined state (c) work, whole, whether the taken as a lacks serious literary, political, artistic, or scientific value. We do not

648 “utterly

adopt redeeming without as a constitutional standard Massachusetts, test of Memoirs v. social value” concept commanded has never S., 419; 383 U. . . three Justices at one time. . adherence of more than If a state law that regulates lim- is thus obscene material values construed, the First Amendment ited, as or written through applicable Amend- the Fourteenth to the States power by adequately protected the ultimate ment independent appellate of con- review to conduct an courts necessary. claims when stitutional supra omitted.) (Footnote at 24. Just California, Miller v. test, the prior Miller of the above statement court’s language. This suggested in different somewhat formula is engenders phrasing language some confusion. variant elaborating on the in Miller discussion Likewise, some confusing again, a care side, once on the but formula is. bit majority opinion I analysis elicits a formula which of the ful susceptible intelligible Con to administration. think is dissenting opinions in Miller of the scientious review upon light Douglas further and Brennan sheds Justices majority scope in the of the test announced nature majority scrutiny Similarly, opinion. and dis close supra, senting opinions Slaton, I Theatre v. in Paris Adult 2d L. Ed. Reels, 12 200-Ft. U.S. United v. States (1973), Kaplan 413 U.S. California, 500, 93 S. Ct. 2665 (1973), United 492, 93 Ct. 115, 37 L. Ed. 2d S. Ct. 2674 2d 93 S. 37 L. Ed. Orito, U.S. States for (1973), Miller the elements of the illuminates further application. as its mode of mula, as well Miller above, the indicated and evaluated as Considered obscenity three main facets to have to me formula seems (1) following questions: Does elucidated which are pamphlet, film, book, allegedly material, work, obscene prurient appeal to the whole, medium, taken as or related itching produce a restless (does in sex interest in sexual craving licentious, and lascivious lewd, for the matters),5 by average applying person con- viewed community (2) temporary standards; Does the state-wide patently depict conduct offen- work or describe sexual way, specifically conduct thus involved de- sive by applicable i.e., or law, fined state does the statute au- judicial give reasonable of what thoritative decision notice literary, proscribed; (3) Does the work have serious political, opinion or scientific The Miller artistic, value. clearly indicates that Roth-Memoirs formula has under- gone significant modification. The dubious and cumbersome “utterly phrase redeeming without value” social has been eliminated. majority opinion contemporary

The in Miller refers to community standards number times. These references pertain to a discussion of so-called national standards on obscenity in contrast stаte-wide standards. Nowhere in Kaplan, Paris Miller, Theatre, Reels, Adult 12 200-Ft. or any significant Orito is there or serious reference to local might geographical standards such as be defined terms of county, city, township perime- or other dimensions or ters. In view of and the this fact that the formula refers to legislative statutory state enactments, I am convinced that phrase “contemporary community standards” as used in companion simply Miller and elsewhere cases means obscenity nothing state-wide as to standards noth- more, — ing less. requirement allegedly Miller formula that specifically by obscene sexual conduct must defined state (judicial decision) or statute authoritative state law is clar- by majority opinion ified reference to the in United States supra, 12 Reels, 200-Ft. an examination of the language provisions (a), § of 19 U.S.C. the federal parenthetical language employed merely 5 The restates an authorita “prurient”: tive definition of term craving: itching curiosity la: marked restless . . . having easily susceptible thoughts b: or to lascivious or desires tending . . c: . excite lasciviousness . . . Dictionary Webster’s New Third International proscribed case, the follow-

statute reviewed in which ing conduct: prohibited importing persons

“All from into any foreign country any from . . . 'United States pamphlet, paper, writing, advertisement, book, obscene circular, picture, representa- print, drawing, or other image figure, paper material, tation, or on' or of or other any cast, instrument, or other article which is ob- immoral . . scene or . supra Reels, 12 200-Ft. at 124. Our own

United States v. Washington statute is not dissimilar:

Every person who—

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

(2) Having knowledge shall of the contents’ thereof engage performed in the exhibited, or or shall to be cause any play, act, or performance show, dance exhibition of picture obscene; is which motion gross guilty of a misdemeanor. Shall approval Supreme of the lan- Court’s The 9.68.010. RCW 1305(a) § guage in 12 200-Ft. Reels estab- of 19 U.S.C. example regula- an of sufficient federal statute as lishes this similarity Owing in tory specificity. substance to the marked particular 9.68.010, and RCW statute between that judgment, implicity approved my the Wash- has, in court obscenity consoli- ington statute involved in nine connection, this it should this court. In cases before dated opinion by majority Stafford, authori- J., that the be noted “obscenity” tatively as used in term RCW construes the pornography. I Thus, have to hard-core embrace 9.68.010 any understanding apprehensions difficulty and criticism of application Miller instаnt cases standard our Washington that the statute or our related conclusion sufficiently precise. duty necessary appellate

It is a and traditional courts obscenity. make evaluations and determinations one. It ac- idle, This function is academic involves judicial actually making litigated in tual decision cases press speech claims, and free where free constitutional as- people, serted actual are involved. The function line-drawing part one and is of the role of the an.essential judiciary system government. in our the Miller Under difficulty appellate experience formula, courts should little exercising duty identifying distinguishing this pornography. daresay many people I hard-core have been engaged very apparently considerable time in the flourishing producing, broad scale and business of distribut- ing selling pornography. pa- In order maintain the tronage paying type of their customers interested this they continually identify distinguish material, must variety. that which will as the sell hard-core I doubt that appellate significantly courts are more naive or dis- less criminating people engaged than the numerous in merchan- dising pornography. majority United States Su- preme difficulty apparently Court no had no reluctance identifying the material involved in Miller and the four companion cases decided the same time the court. The majority opinion clearly in Miller that the states items by themselves constituted the best for evidence evaluation they pornography the court to as whether were hard-core protec- —not entitled to First and Fourteenth Amendment upon capable tion. It this that basis the court was of making focusing upon por- did, the decision it “hard-core” nography and its commercialization as defined in the Miller present formula. This same theme is in the cases immedi- ately Having before this court. examined and evaluated the agree items in involved these nine cases, consolidated I operandi Supreme with the modus of the United States difficulty identifying in Court Miller. I find no in the items (graphically majority opinion by described in the Stafford, J.) pornography protec- as hard-core entitled to the —not tion of the First and Fourteenth Amendments either under the test formulated test or now under

the Roth-Memoirs in Miller. the court that our own court Justice concern

I cannot share Utter’s censorship may upon First, to board. function as be called Second, one. is an extreme I think the characterization apt to of what is entitled the determination not because protection in the of Amendment area First Fourteenth and obscenity well-recognized proper and nec- as has become ago judiciary, certainly long essary as the as function of the Supreme Roth. Court in On of the United States decision very clearly Burger point, Chief Justice this stated positively “are in Miller that Amendmеnt values First most power appellate protected adequately the ultimate independent of constitutional to conduct an review courts “ duty judiciary observing ‘admits claims,” facing up tough individual to the of no “substitute every judgment problems involved ob- of constitutional ’ ” supra scenity Miller v. 30. California, case.” thing Douglas, Brennan, Stewart for Justices It is one majority disagree to dissent and Marshall judges holding appellate can- Miller; state to the court’s luxury. Regardless plenary indulge intellectual not in such n ofour personal opinions or merits as to wisdom Supreme United Court the decisions States Miller, applicable comparable as of the land insofar the law are Washington Supreme legal issues before factual way distinguishing legal the factual and I no see Court. closely comparable ones Any in Miller from as treated issues cases now before us. in the nine consolidated involved personal purely preference or of indi- matters discussion regarded controlling philosophy as must be vidual variety pedantic actually surplusage if of an academic or the rule of law which seems so subscribe we upon explicit evaluation examination and careful Miller decision. obscenity examples

It be noted should majority by a of the cases decided Miller and the related Supreme Court, members United States as well as examples pornography the of “hard-core” in involved the appeal nine consolidated cases in this now before the Su- preme Washington provide Court should information, examples, guidelines charged and for enforcement officials duty enforcing obscenity. concerning with state law examples should indicate not what is and what protected by press provisions speech freedom and the first and fourteenth amendments to the United States suggests process comparison Constitution. This a items and material in considered these cases. Problems interpretation are somewhat inherent to area of obscen- ity; may expected and it be that from time to time addi- litigated may my opinion, tional very cases arise. In it would predict difficult whether such cases will be numer- relatively they ous course, few number. Of do arise applied formula established in Miller on will have to be case-by-case any terminating basis. In event, before this concurring opinion repetition, and the risk of some noting emphasizing seems to me worth that close com- parability examples obscenity protected by to the First and Fourteenth Amendments, which are involved in today, the nine consolidated cases decided should be guideline anyone standard or concerned, interested and including Washington State law enforcement officials. foregoing

For the reasons, and on the basis indicated —as majority opinion well as for the reasons stated signed opin- Justice Stafford —I hаve I concur ion. JJ.,

Hamilton, Stafford, Wright, concur with Finley, J. (dissenting) agree J. Utter, J., but

Rosellini, —I something I think that to be more needs said about impropriety superimposes upon aof decision which stat- specifications descriptions ute which cannot be found

654 recently in the of have reaffirmed words the statute.'We requires the that a which either forbids or the rule statute doing vague of of an act in terms so that men common necessarily guess meaning intelligence and dif- at its must application, of due fer as to violates first essentials its process. Digest Ass’n, 501 State v. Reader’s Wn.2d (1972). P.2d 290 by legislature

The one to describe word used proscribed, word is the material, dissemination of which is extremely meaning, and of broad “obscene.” This is word merely scope majority attempt but to define its does things they its are certain fall within certain which lists hardly comprehensive, perceive To that its list is ambit. currently dictionary only necessary to in use turn to the Dictionary Third New International court, at the Webster’s compilers of that volume have to Here is what say of the “obscene.” about the definition word filthy, disgusting of usu. some la: senses because ([obscene] fungi grotesque, the quality clothed or unnatural rags) cavern) (dressed [obscene] in of dank wall generally accepted grossly repugnant notions of to the

b : (death appropriate under the stars is : what is Shocking Infantry Jour.) 2 re- : offensive or [obscene] somehow— principle countering violating volting ideal or : or some as stressing morality or revel- or virtue : as abhorrent to a : specif inciting designed ing or lustful; : in or the lewd indecency (the depravity, be- dance often lust, incite to definitely provocative— flagrantly [obscene] and comes whisper- sly Mead) (a Margaret humor, [obscene] important ing rake— of an old worn-o-ut lecheries accepted Wolfe) lan- violation b: Thomas guage marked regarded of words the use inhibitions Lewis) ([obscene] chantey usage polite taboo —Sinclair cynicism, malignance, hypocrisy, repulsive by : reason of c prin- disregard irresponsibility, moral or ethical crass lewdly (the ciples [obscene] little counter demonstration (the Ybarra) forthcoming exulting R. deaths —T. in the irresponsi- its [obscene] in almost . . . was debate syn Republic) bility see Coarse —New given synonym, “coarse,” If we turn to the we find the following further elaboration: taste,

3 : manners, a crude or unrefined or sensibilities politeness civility taste, : cultivation of without delicacy feeling (many muckraking manner, or simple parables . [coarse] novels . nessman . busi- were Voto) the sensitive intellectual —Bernard De language esp. b : crude and indelicate of or idea language : Obscene, violation of social taboos on Profane Stormy the weather : dial dial, Brit, b Rough, persons or harsh, circumstances : : Brutal, Harsh rough (the raucous, or tone : not melodious or mellow jangling, ordinary Shaw) [coarse] bells—G. B. —used pathological also of certain sounds heard in auscultation in states of the chest rales) ([coarse] syn Vulgar, suggests : Coarse Gross, Obscene, Ribald indelicacy, roughness (he crudeness, unrefined was forever or robust making eyes puffy-faced, at me—a coarse, red- young plastered man, moustached his with hair down on thought each side his I perfectly forehead. he was hate- (the ful ... Doyle) landlady A. Conan who had tyrannized over her unpaid, when ill-humoured and or pleased when had familiarity treated her awith coarse scarcely Thackeray) less odious—W. M. In sense, this stronger good term, describes what offends taste Vulgar, decency may suggest (his passion or boorishness physical luxury nakedly simply revealed itself as vulgar longing conspicuous of the idle rich for waste— (her Hicks) vulgar person, Granville a . father is . . mean in his ideals and obtuse in his manners —John Er- 1951) (it gave was, skine fact, the mouth that his face sly, ugly vulgar sensual, its look, for a loose and smile constantly edges— seemed to hover about its thick coarse Wolfe) Thomas Gross stresses crude animal inclinations gross, (merely scatological and lack of refinement rather pornographic impropriety Huxley) (Clif than a —Aldous forty, gross. sweaty, Clawson, His was face was puffy pale raw; his flesh; with voice was he fancied jackets, tight across checked Norfolk his swollen shoulders beefy hips Lewis) (a spirituelle and his am- —Sinclair repelled by gross voluptuary— oureuse, she is or the Behrman) S. 1ST. strongest group stressing impro- this Obscene (it easy priety, indecency, was, course, or nastiness frank,

pick out . . a line here and there . which (his indecency, yet Oanby) certainly to innate belief that human flesh is in not' obscene—H. S. way In obscene. some days painted decently had artists . . . had old Glasgow) depths draped beneath chambers of the human soul. Black figures (there are their —Ellen depths happened night fetid in what last —obscure

hatreds, unnatural impulses, at the desires, obscene hideous ambitions rough suggests Wright) merri- H. bottom of it—W. Ribald scurrilous, irreverent, or ment or crude humor at the (they shaking vulgar loose him, their had backs punctuates description— laughter which a ribald Mary Austin) (a folksong straw —J. about fleas in ribald Lowes) L. obscenity man’s

It that what one should be obvious “Beauty things may in the mind exists art. another’s Essays, contemplates & Po- D. Moral Hume, them.” which litical 22at vagueness Supreme recognized Court has subjective highest quality. The and its

word “obscene” that certain decreed court of the land has nevertheless publications depictions, having sex, which are to do with may be) “community” (whatever can offensive to requirements punished, which but it has set forth three be can sustained. These before a conviction be must be met contemplate a initial decision to whether that the all depiction punishable given made publication shall be or by of fact have that trier the must fact, trier of the the specifiсally legislative the act it a which before defines punishable. depiction of which is conduct sexual community apply the that it should It also must be told particular description or to whether the standard determine by specifically legis- depiction the conduct defined of sexual appeals prurient it further interest and must to lature whole, as a lacks serious work, taken decide whether political, literary, or scientific value. The triers artistic, us not have followed the before could in the cases the facts procedure designated Supreme Court, the United States simple they for the that reason had before them no statute requirement “specific which meets the sex- definition of Supreme ual conduct” which was laid down Court Miller California, in L. U.S. 37 Ed. 2d 93 Ct. S. majority upon responsibility has taken itself the performing only legislature, the functions, not but jury judge and the trial as well.

Even without the recent decision of the United States Supreme Court, I am convinced that 9.68.010should RCW preexisting invalid, be held it does not meet consti- requirement tutional that it should describe the act forbid- language sufficiently person den to a definite enable ordinary understanding to know what he is forbidden to do. Digest supra. v. Reader’s Ass’n, State guise

Under the construction,” “authoritative the ma- jority legislative of the court has a added and revised pretend person charged It enactment. does not that a adequately apprised words of the statute would be of his alleged ordinarily offense, as is a the case where criminal sufficiently statute is definite to it render constitutional. It proper charge that a obvious will have include listing depictions descriptions of those or which the court today be has found to offensive and has assumed legislature given would, if the chance, have in. concurred majority’s

Even if it is assumed that the list horrors— though perhaps it would not be considered exhaustive judgment only of a connoisseur of erotica—includes legislature likely postures and acts which the be would sufficiently specifica- find offensive to them include in its duty prerogative compile tion, not the court’s is still such list. seriously community

I the morals of doubt irretrievably if the shattered court would should exer- properly imposes upon which it the restraint cise itself brought statutes are where unconstitutional before it and 658 amending legislature the to the leave the task

should statute. convictions.

I would reverse the — (dissenting) majority a mas- has done J. Utter, complex job organizing the discussion these terful in agreement much of is said I in with what am cases. While guidelines majority, by there are two areas where new the great applied California, Miller cause me concern. v. are that (1973); Paris 93 Ct. 2607 15, 419, 37 L. Ed. 2d 413 S. U.S. 446, 93 Slaton, 49, I 37 L. Ed. 2d Theatre v. 413 U.S. Adult (1973); Orito, 139, 413 37 States v. U.S. S. Ct. 2628 United Kaplan (1973); v. 513, California, 2674 L. Ed. 2d 93 S. Ct. (1973); United 492, 37 L. Ed. 2d 93 S. Ct. 115, 413 U.S. 500, 93 123, 37 L. Ed. 2d Reels, 200-Ft. 413 U.S. States S. Ct.

My is the need to what I is derived from believe concern body proper legislative obtain a statement clear depictions descriptions obsсene, not are what way such need enforce these standards and the on ma- not be rendered the same verdicts will inconsistent jurisdiction. in the the same law same terials under majority opinion fails to follow United First, applicable Supreme requirement Court’s States proscribed depiction specifically or de- define state law scription sexual conduct before an offensive obscen- may supra ity prosecution Miller succeed. v. California, obscenity applied law here to be fails 24. The state specificity describing required comply court’s impose and this court should forbidden that are the acts obscenity on statute an effort definition its own lacking. supply what majority opinion though holds the relevant

Second, guidelines “community the Roth-Miller under standard” (Roth States, 1 L. Ed. 2d 354 U.S. 77 S. United apply (1957)) statewide, fails it in these Ct. prosecutions herein was measured None cases. community Inasmuch as our state stat- standard. statewide

659 comply specificity required, ute does not with the now employ community these cases fail to standard, state I would reverse the convictions. Supreme recognized

The United Court States these obscenity dangers recent decisions “the inherent of under any taking regulate expression” to form of and thus re quired designed regulate “[s]tate statutes to obscene carefully materials must be limited.” Miller v. California, supra Supreme 23, at 24. The Court therefore found obscen ity regulation solely depiction must be confined to the or description spe conduct, must, turn, sexual which be cifically applicable ruling, defined state In law. so Supreme provide regulatory Court did not scheme by judicial pronouncement but deemed it must await the legislative “concrete efforts” of the states.6 Miller v. Cali supra fornia, 25. majority of this declines court to await our state’s

legislative provide necessary effort to the now concrete and specific obscenity. majority pro- Rather, definitions of statutory provide ceeds, under claim of construction, specificity the demanded of what is to obscene, a state provide. fails to statute which so 9.68.010(1) (2),7 by simply prohibiting any-

RCW totally thing provide obscene”, fails “which for Supreme provide examples possibly 6 TheUnited States Court did legislative providing specific prohibitions by enactments for valid ring refer Oregon California, recent and Hawaii laws. See Miller v. 413 n.6, 419, L. Ed. 2d 93 S. Ct. U.S. Every Exception. literature, shows, “Obscene 7 RCW9.68.010. etc..— person who— Having knowledge “(1) exhibit, sell, of the contents thereof shall display having knowledge distribute, distribution, or sale or possession thereof shall have in his contents intent to sell or any book, magazine, pamphlet, book, newspaper, distribute comic writ- picture film, phonograph ing, photograph, record, tape motion or wire any recording, picture, drawing, figure, image, object thing or or which obscene; or knоwledge Having “(2) of the contents thereof shall cause to be engage performed exhibited, performance or shall in the or exhibi- any show, act, play, picture obscene;” tion of dance or motion which is specificity Supreme and fair notice in criminal statutes obscenity requires regulation Court now in the area. acknowledged Supreme The United that a States Court obscenity may or con- state statute be limited written “as major- supra Yet, strued.” Miller v. at 27. California, ity gives it “obscene”, here does but not construe word definition. statutory

Our settled rules of construction state ordinary given in a words statute are to be their usual and meaning. 497 P.2d 594 Hille, Bixler 80 Wn.2d (1972); 77 Wn.2d Distribs., State, Rena-Ware Inc. v. statutory ambiguous defining 463 lan- P.2d 622 In guage legislative in order to we must determine the intent Champion give 81 it effect. v. Shoreline School Dist. (1972); Bracken, In Estate Wn.2d P.2d 304 re (1960). However, of law 17, 351 P.2d 151 in this area Wn.2d Supreme “the intractable which the Court characterizes as obscenity problem” seeking “to and is formulate standards past” recognize than in the we should more concrete those defining futility judicially the word “obscene” and the by people through expression the the leave this to a clear supra legislative process. Miller v. at 20. California, by majority imposing court, this its of what view The proper state,8 this to exceeds our is deemed obscene be duty judicial to criminal statutes is not draft function. Our precision them, absent, where is the and but to construe legislature legislation to not re- must be returned by a court. written by majority’s “measured common “construction” is

The agreement practice” understanding which assumes assumptions people is obscene. among as to what Such legislative process. left to should be ordinary meaning to is no that word that there Given any specific prohibition legislative toas is intent majority specific decision announce the for the unknown, concept separa- to violate to me seems forbidden acts be avoided. powers should tion of page opinion. 601 of its majority’s onis definition 8 The obscenity Supreme Court in these recent decisions rejected by a “national standard” which to measure obscen- ity jury and affirmed convictions rec- based on instructions ognizing community a state Miller California, standard. supra Kaplan supra at 30; at Given California, 121. community ruling, majority this is the here holds the agree only holding “state”. I in this Ias believe it is the appropriate prosecution standard a state where is under uniformity ought promoted, particularly statute. Such to be imposed. where criminal sanctions are My disagreement majority with the after an- nouncing community a new state standard which ob- scenity proceeds ignore determined, to be it because pornography speak “hard-core can and does for itself”. Supreme provide

The effort Court to nation guidelines determining with revised constitutionаl what sought provide is and what is not “obscene” concrete “specific obscenity prerequisites” to convictions. Miller v. supra prosecutions California, at 27. The need for to come guidelines recognized page within established is majority opinion of the when it states: “The three elements [Miller v. California] test must coalesce mate- before may proscribed rial as ‘obscene’”. despite employ specific

Yet, these efforts announce and subjective censorship standards in order to avoid as much possible, apparently by as is the standards are abandoned allegedly that the rule the obscene materials “are the best they represent” ‍​​‌‌‌​‌​​​​‌‌‌‌​​​‌​‌‌‌​​‌​​​​‌‌‌​‌​‌‌‌‌‌‌‌​‌‌‌‌‍requiring evidence of what thus not “af- that the firmative evidence materials were obscene . . .” supra I v. Slaton, Paris Adult Theatre at 56. difficulty appellate rule raises

One this for reasoned re- obscenity prosecutions view of is illustrated those con- solely by victions now before us which were obtained the of the materials into evidence, introduction followed they judicial judi- were determination “obscene”. If a obscenity only finding viewing is sufficient from cial of the appellate recognizing review, material, how on our rules of findings fact, of evidence” are we to “substantial deter- “community appropriate the has been mine if standard” properly applied? only the to Our recourse would be review majority to censors, as come a materials, ourselves act criminality. toas their conclusion adopted by procedure regret I it is exact which is this majority they independent re- “Our when conclude: own they question that view the materials leaves us with no community contemporary are an affront to standards (Italics . . .” state, this area sexual matters just censorship mine.) It board review that should is such by application precise standards. be avoided only Supreme guidance in this Court’s The United States regard its that: is statement jurors adversary system, lay ulti- usual

The mate factfinders with historically prosecutions, in criminal has permitted fact on the standards of their triers of to draw community, always by limiting guided on instructions the law. supra Presumably, limit- these California,

Miller v. ing at 30. community appropriate instructions of law include the necessary explanation. on no is and its If evidence standard community it question how is standard, this is of what appel- possible provide meaningful or for instruction ultimately has whether standard late review courts jurors applied? factfinders, are not been In cases where obscenity proof summary findings on the com- without subjec- munity on reliance standard, invites excessive judge solitary judgment views tive an individual whose community may may standards. reflect community imposition standards the true Where necessary sought to have me it would seem community appeals proof believes affected of what the portrays prurient sexual in an conduct interest may way. Only fashion we in this avoid the cu- offensive presumption viewed, that the material and not the rious judgment. speaks in beholder, J. J., Utter,

Rosellini, concurs September rehearing denied 1973. Petition

Case Details

Case Name: State v. J-R Distributors, Inc.

Court Name: Washington Supreme Court

Date Published: Jul 27, 1973

Citation: 512 P.2d 1049

Docket Number: 42371-77, 42385, 42429

Court Abbreviation: Wash.