Petition — Brown Bear, Inc. v. Kentucky

SUPREME COURT OF THE UNITED STATES

BROWN BEAR, INC., COMBINED

3 ENTERTAINMENT VENTURES, LTD.,

HAPPY DAY, INC., and TOM HOLLIS, JR.,

Petitioners,

vs.

COMMONWEALTH OF KENTUCKY,

Respondent.

PETITION FOR WRIT OF CERTIORARI q

TO THE SUPREME COURT OF KENTUCKY 4

ROBERT EUGENE SMITH MOTT V. PLUMMER

Suite 1230 305 Campbell Towers

16133 Ventura Boulevard Fourth & York Streets

Encino, California 91436 Newport, Kentucky 41071

(213) 981-9421 (606) 491-0313

4 i

el al ay

The Brief Shop * Legal Printers © (213) §77-8620

QUESTIONS PRESENTED

I. THE KENTUCKY OBSCENITY LAW

AS WRITTEN AND ACCORDINGLY APPLIED

TO THE PETITIONERS HEREIN: IS

REPUGNANT TO THE FIRST, FIFTH

AND FOURTEENTH AMENDMENTS TO THE

CONSTITUTION OF THE UNITED STATES;

IN THAT IT PRESUMES THAT PRESS

MATERIALS WHICH DEPICTS OR DESCRIBES

SEXUAL CONDUCT IS PER SE “PATENTLY

OFFENSIVE" AND AS SUCH IS NOT

IN ACCORD WITH THE STANDARDS FOR

JUDGING OBSCENITY AS SET FORTH

IN MILLER vs. CALIFORNIA, 413

U.S. 15, (1973).

II. THE KENTUCKY OBSCENITY LAW

AS WRITTEN AND APPLIED TO BROWN

BEAR, INC., COMBINED ENTERTAINMENT

VENTURES, LTD. AND TOM HOLLIS,

oO ath i aa te Uh AMD it Dialling A te 8

vr a

vw

iy gets BY

© ’

TO THE UNITED STATES CONSTITUTION

FOR FAILURE TO INCROPORATE THE

7

as

~«

4

ELEMENT OF SCIENTER IN THE CRIME

-OF CRIMINAL FACILITATION OF OBSCENITY.

III. THE APPLICATION OF THE KENTUCKY

OBSCENITY LAW TO PETITIONERS HEREIN IS

REPUGNANT TO THE FIRST, FIFTH AND FOUR- (

TEENTH AMENDMENTS TO THE CONSTITUTION y

OF THE UNITED STATES, IN THAT THE GEO-

GRAPHICAL COMMUNITY BY WHOSE STANDARDS

THE PRESS MATERIALS ARE TO BE JUDGED

WAS UNDULY RESTRICTIVE CONSIDERING THE

GREATER METROPOLITAN AREA OF CINCINATTI

AND NORTHERN KENTUCKY .

IV. THE APPLICATION OF THE KENTUCKY

OBSCENITY LAW TO PETITIONERS HEREIN WAS

REPUGNANT TO THE FIRST, FIFTH AND FOUR-

TEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION IN THE HIGHLY PREJUDICIAL

AND INFLAMMATORY DEFINITION OF THE WORD

TABLE OF AUTHORITIES ..:...... ii

OPINION BELOW .........s.-ec- 2

JURISDICTION eeeeeaeeneeeeneenee ee 2

CONSTITUTIONAL and STATUATORY ,

PROVISIONS ese eeeereeeeeeeeeneneeve 3

STATEMENT OF THE CASE ......«+- 4

REASONS FOR GRANTING THE WRIT

CONCLUSION e*eeeeeeeeeeeeeeeeee

a!

TABLE OF AUTHORITIES

Page

Cases

D. & J. Enterprises, Inc.

v. Michaelson as

401 A.2d 440 (R.1. 1979) ..... 1l ‘a

Hamling v. United States

418 U.S. 87 (1974) ....eeeeees 19

J.R. Distributors, Inc. v.

Eikenberry, et al.

725 F.2d 482 (1954) .....-22- 12

Kentucky Obscenity Law B

KRS 531.010(4) eeeeeeeeeeeeeeee Passim ag

Lanzetta v. New Jersey

306 U.S. 451 (1939) ....eeeeee 23

,: Miller v. California

ri. 413 U.s. 15 (1973) eeeeeeeeeee Passin.

“4 Smith v. California

or 361 U.Ss. 147, 153-154 eeeeeeee 18

Pe Smith v. Gaguen

3 415 U.S. 566, 94 S.Ct.

1242, 39 L.BG. 24 605 (1974).. 22

United States v. Maxurie

419 U.S. 544, 95 S.Ct. 710

42 L.Ed 2a 706 (1975) eeeeeeee 21

United States v. National

ae 9 . 549

2a°3é1" 1963) eeccecces 21 : «

RA: Fee ae ee eee Oe SS A tO ee ey, Pee eee a ae de

s fo y , i a one!

j United States v. Powell

FS 423 U.S. 87 S.Ct. 316

46 L.Ed 24 228 (1975) ......-. 21

United States Constitution ¥

First Amendment 4

be. ‘Fifth Amendment 3

Pourteenth Amendment.......+-- Passim ae

U.S.C. Title 28, Sec. 1257(3)..

IN THE

OF THE UNITED STATES

October Term 1983

pretest Re eh HB pu Re

AINMENT VENTURES ,LTD.,

IES SOS Loe et ee ee

F

HOLLIS, JR.

PETITIONERS

2

5

ANd

OPINION BELOW

The order of the° Supreme Court

of Kentucky denying discretionary

review is not yet reported but

is set forth in Appendix A herein.

Discretionary Kview was also

denied by the Court of Appeals

of the Commonwealth of Kentucky

and a copy of said denial is set

forth in Appendix 8B. The order

and judgment of the Campbel Circuit

Court, of the Commonwealth of

Kentucky, affirming the lower

Court is attached hereto as Appendix

C. The findings of fact and conclus-

ions of Law are attached hereto

D.

-

s

7a

Prin

Commonwealth of Kentucky, affirming

the lower Court was entered on

April 23, 1983. On appeal, discret-

ionary review of said judgment

and order was denied by the Court

of Appeals for the Commonwealth

of Kentucky on June 28, 1983.

Upon application for discretionary

review of said denial to the Supreme

Court of the Commonwealth of Kentucky,

that Court also denied discretionary

reviewby Order of December 15,

1983. This Court's jurisdiction

is invoked under Title 28, U.S.C.

Sec. 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

The pertinent provisions of the

First,Fifth and Fourteenth Amendments |

to the united states Constitution —

ere

°

*

4

7

14

’.

¥

STATEMENT OF THE CASE

On July 12, 1980, Ken Soward,

an officer with the Kentucky State

Police, made an application for

a search warrant for the premises

known as the Cinema xX Theatre

located in Newport, Campbell County,

Kentucky. Two (2) #=films were

seized pursuant to the Search

Warrant, and thereafter, the Common-

wealth cited the purported projection-

ist, Larry Varney, with two (2)

counts of distribution of obscene

matter and also cited the alleged

ticket-taker Suzanne Raleigh,

with two (2) counts of distributing

’

J

:

-.|

co

re

4

in connection with distribution

of obscene matter.

Prior to the commencement of

the trial om April 10, 1981, the

Commonweal th of Kentucky moved

to dismiss the charges against

Varney and Raleight, and went

to trial on two (2) films. The

trial commenced on April 10, 19861

and was concluded on Tuesday,

April 14, 1961 when all defendants

were found "Guilty".

The sentence of the Court as

the Happy Day, Inc. wes $10;000 |

fine; Brown Bear, Inc. a $5,000

fine; Combined Entertainment Ventures,

Ltd. a fine of $5,000 and Tom

Hollis, Jr. 90 days in jail and

Geengane wee etagnd gyeeeny: tem

was denied by both the Court of

Appeals and the Supreme Court.

Petitioners seek review from

the Supreme Court of Kentucky's

denial of discretionary review.

CONSTITUTION OF THE UNITED STATES,

IN THAT IT PRESUMES THAT PRESS

; MATERIALS WHICH DEPICTS OR DESCRIBES

SEXUAL CONDUCT IS PER “PATENTLY

2 OFFENSIVE" AND AS Is NOT

; IN ACCORD WITH THE STANDARDS FOR

¢ JUDGING OBSCENITY SET FORTH BY.

THIS COURT IN MILLER VS. CALIFORNIA,

4 413 U.S. 15, (1973).

: The Commonwealth of Kentucky

enacted a new obscenity law several

years after the decision of this

Court in Miller vs. Calif. 415

B| U.S. 15 (1973).

E> The new statute KRS 531.010 et

4 seq. attempts to utililize the

4 standards for judging obscenity

fashioned by this Court, but does

so rather imperfectly.

The part of the test

established by the legislature

of the Commonwealth of Kentucky

reads in pertinent part as follows:

“(b) The matter depicts or

describes the sexual conduct

in a patently offensive way;"

This Court in fashioning standards

for determining | the test for

obscenity used the following

words in Miller vs. California

413 U.S. Supra at page 24:

"(b) Whether the work depicts

or describes in a patently offensive

way, sexual conduct specifically

defined by the applicable state

law."

The essential difference between

the Miiler standard and that

imposed by the legislature of

ae et 1

5 BX pe Fae bie 2

is that Miller requires that

the fact finder analyze the

challenged press materials to

determine whether the sexual

conduct depicted or described

is done so in a “patently offensive i

way", and the definitional standards

imposed by the Commonwealth of

Kentucky suggest that if the

work describes sexual conduct;

it is thus per se patently offensive.

The Commonwealth of Kentucky

obscenity law is thus repugnant

to the First, Fifth and fourteenth

Amendments to the Constitution

in that KRS 531.010 (4) establishes es

an impermissive presumption and ie

takes from the fact finder the a

task for determing whether the

sexual conduct was depicted or

described in a patently offensive

way. In so doing, the legislature

encroached upon the exclusive

perogatives of the jury and thus

reached conduct arguably protected | P

under the First Amendment.

;

The Suprene Court of the

the state of Rhode Island in

dealing with a similar issue

was compelled to observe in finding

the state statute unconstitutional,

as follows in D. & J. Enterprises,

Inc., vs. Michaelson, 401 A.2d. Phe

an individual | work

against “contempor ary

community standards'

in order to reach a

specific conclusion

in a particular matter."

Recently the Ninth Circuit

in the case of J. R. Distributors,

Inc., vs. Eikenberry, et al.,

725 F. 2d 482 (1954) warned of

the dangers of deviation from

this Court's three-part esek

in Miller and held a state of

Washington Obscenity Law

- unconstitution.

The Court in it's opinion

Be

es ok

pee

oe

test in Miller Vv.

California, 413 U.S.

15 (1973). Under the

Miller test, speech

is obscene and thus

not . protected under

the first amendment

if three guidelines

are satisfied: (a)

whether “the average

person applying

contemporary — community

standards" would find

that the work, taken

as a whole, appeals

to the prurient interest;

(b) whether the work

depicts or describes,

in a patently offensive

way, sexual conduct

specifically defined

by the applicable state

law; and = (c) whether

the work, taken as a

whole, lacks serious

literary, artistic,

polital or scientific

value.

413 U.S. at 24 (citations

omitted).

Despite the continued

adherence to the Miller

test, few would disagree

with the view that only

a "dim and uncertain

line". separates obscenity

from mira age gage tes od

Inc v

SM

ee oe

ad rt, pes

be

372 U.S. S58, 66 (1963).

AS Justices Brennan,

Stewart and Marshall

remarked, "one cannot

say with certainty that

material is obscene

until at least five

members of [the Supreme]

Court, applying inevitably

obscure standards, have

pronounced it so."

Jenkins Vv. Geo a

418 +&2,1U.S. 153, cer et

(1974) (Brennan, Stewart

and Marshall, JJ.,

concurring), ti

Paris _ Adult theatre

Iv. Slaton, 413 U.S.

49, 92 (1973) (Brennan,

Jos dissenting). Yet,

on one side of the Miller

line, speech is enti

to the highest form

of protection afforded

by our laws and

constitution, while,

on the other side, speech

that is held obscene

may be punished as a

crime. :

Becauses of the inevitable

4 uncertainty as to where

ae the line will -be drawn

a and the critical importance zr

x of not interferring Be

: with constitutionally

courts

protected speech,

have insisted that. the

Miller guidelines be

‘er

followed without deviation.

See, e.g. Haml a

Vv. United Be, is =7i0 A

U.S. 687, #114 (1974)

("Miller .. . was speaking he

in terms of substantive }

constitutional law of

the First and Fourteenth

Amendments . ° . [and

establishes] a limit

beyond which neither

legislative draftsmen

nor juries may go .

yee ioe ne Pk. When the

Miller guidelines were

adopted, the Supreme

Court emphasized that

"[s]tate statutes designed

to regulate obscenity

must be carefully limited.

As a result, we now

confine the rmissible

scope of such regulation

to works" that satisfy

the three-part test.

Miller, 413 U.S. at

23-24 (emphasis added,

citation omitted).

To assure that protected ‘a

speech is not impermissibly '

regulated, then even

subtle deviations from

Miller =—S«- standards 4

must be carefully examined. :

(Emphasis supplied)

Accordingly, because the

essential element of the definition ia

2 of obscenity in the Commonwealth

-13-

of

:

:

|

’

.

;

statute should be declared invalid

Pia |

,

on overbreadth and due i. process

II

THE KENTUCKY OBSCENITY LAW AS |

WRITTEN AND APPLIED TO BROWN BEAR,

INC., COMBINED ENTERTAINMENT

VENTURES, LTD. AND TOM HOLLIS,

JR., IS REPUGNANT TO THE FIRST, a

FIFTH AND FOURTEENTH #$AMENDMENTS

TO THE UNITED STATES CONSTITUTION

FOR FAILURE TO INCORPORATE THE :

ELEMENT OF SCIENTER IN THE CRIME .

OF CRIMINAL FACILITATION OF |

OBSCENITY. a

The Kentucky obscenity law

which allows the incorporation

of the Kentucky bbtudine? facilitation a |

law permits a person to be punished a

without giving such person adequate

warning of the nature of the conduct .

that is to be condemned by the > “a

law. It further permits punishment

for constitutionally mandated ‘ |

requirement of scienter. E

K.R.S. Sec. wsprecie Mf provides :

in pertinent part: a

"(a) a@ person is guilty oe:

of criminal facilitation A

when, acting with us

-15- o¥ ~ f ”

a

:

in fact aids such person

to commit the crime."

Thus it can be seen that

if XYZ commits the offense of

violating the Commonwealth

/ j

obscenity laws, then any one

providing means or an opportunity

to commit the crime is guilty

of “criminal facilitation".

This would oconceiveably include

the public utility compainies, 4

lawyers, accountants, a bookkeper,

: lendicrdés, janitor services who

f furnish any services to XYZ,

‘ _which in some way was of said

, in his offending criminal conduct.

4 This kind of law, when viewed

-16-

) . (

‘

-

against the First Amendment is

overly broad and is further void

for vagueness.

The sanction of criminal

punishment can thus be meted

out, as it was here, to _ those

who had not seen the films offered

at the Cinema X, had not procured

the films offered at the Cinema

x and who performed services

unconnected with the exhibition

of films contended to be obscene.

This vagueness is further

compounded by the absence of

the constitutionally mandated

element of scienter first

acknowledged by this Court in

Smith v. California, 361 U.S.

147, 153-154, to be a requirement

of any State cbscenity statute.

This Court in Hambing vs. United

States 418 U.S. 87 (1974), approved

a definition of scienter that

reads in pertinent as follows: |

"It is constitutionally

sufficient that the

prosecution show that

a defendant had knowledge

of the contents of

the materials he

distributed, and that

he knew the character

and nature of the

- materials." Id. at

123.

The essence of the _ statute

permits punishment to all who

assist the pornographer exhibit

it's wares without regard it's

wares without6 regard to whether

their knowledge of the business

of the exhibitor was generally

adult film fare. If One hundred

(100) films exhibited in a year

are not obscene and two (2) films

are, then that would te sufficient,

as in the case et ber to enforce

criminal sanctions without proving

scienter as to the offending

film fare.

The criminal facilitation

statue uses the word "knowingly"

to impose a standard for determing

guilt. The “knowingly” is a

verb modifying conduct which

provides a means or opportunity

to commit a crime. This word

is not used in the sense of scienter

as otherwise used in obscenity

statutes, and consistent with

the Hamling case previously cited.

As such the crime of criminal

facilitation applied to an obscenity

prosecution is clearly void for

vagueness as that doctrine has

been judicially interpreted by

this

Be.

L

A

Generally, the constitution-

ality of a_ statutory provision

under attack on void-for-vagueness

grounds mu7st be determined strictly

on the basis of the statute's

application to the particular

facts at hand. United States

v. Powell, 423 U.S. 87, 92, S&S.

ct. 316, 46 L. Ed. 2d 228 (1975);

United States v. Maxurie, 419

U.S. 544, 550, 95 S. Ct. 710,

42 L. Ed. 2d 706 (1975); United

states v. National Dairy Corp.,

372 U.S. 29, 32-33, 83 S. Ct.

549, 9 L. Ed. 2a 561 (1963).

However, where the statute

appears to intrude upon fundamental

constitutional liberties, particu-

larly the First Amendment guarantees

of free speech and assembly, __

4

the statute is to be tested

: r¥

- are

. Sy , Fes

& » ia

vagueness on its’ face. Smith

v. Gaguen, 415 U.S. 566, 573,

94 8S. Ct. 1242, 39 Le. Ed. 2d

605 (1974); Winter v. New York,

333 U.S. 507, 509, 68 S. Ct.

665, 92 L. Ed. 840 (1948).

"(T)here is (in these

cases) the danger that the

~. state will get away

with more inhibitory

reregulation than it

has a constitutional right

lity to regulation will

rather obey then run the

risk of erroneous constitu-

tional judgment.”

Note, The Void-For-V |

r reme Court,

TOS U. Pa. L. Rev. re ° Court

Recently this Court again

3 addressed the issue of the vagueness

3 question in criminal statutes

in the case of Kolender, et al. .

v. Lawson, __U-S. __s, 75 Lb. “ae a

Ed. 903(decided May 2, 1983),

where Justice O'Conner speaking for

-21-

The Court observed in pertinent part

as follows:

Ce Pi a eee

St eS ar

j

‘"“As generally stated, the

void-for-vagueness doctrine

requires that a penal statute

define the criminal offense

with sufficient definiteness

that ordinary people can under-

stand what conduct is probhi-

bited and in a manner that does

not encourage arbitrary and dis-

criminatory enforcement."

aw ad wes

No one should be required at

4 peril of life, liberty or property, to

speculate as to the meaning of a penal

z statute. Lanzetta v. New Jersey, 306

3 scienter requirement and the lack of

standards to limit those who innocent-

ly assist am exhibitor of adult film

fare without knowing the character,

content and nature of the films dis-

tributed makes this law as applied to

the Petitioners herein violative of —

First and Fifth Amendment rights.

¥ m

Re Petes ee

Itt.

THE APPLICATION OF THE KENTUCKY

OBSCENITY LAW TO PETITIONERS IS

CONSTITUTION OF THE UNITED STATES;

IN THAT GEOGRAPHICAL COMMUNITY

BY WHOSE STANDARDS THE PRESS MATERIALS

ARE TO BE WAS UNDULY RESTRICTIVE

CONSIDERING THE GREATER METROPOLITAN

AREA OF CINCINATTI AND NORTHERN

The Commonwealth of Kentucky

Obscenity Statute does not define

or establish what the parameters

are of the community by which

the fact finder is to determine

the prurience and patent offensiveness

of press material depicting sexual

conduct. The appellate Courts

of the Commonwealth of Kentucky

have not authoritatively construed

the appropriate geographical limits

that a jury may consider in assessing

the community standards issues

of the Miller obscenity test.

Se ek. eee i ee ee eC

Accordingly, a potential

exhibitor has no way of knowing,

in advance whether ag conduct

is to be judged by the comssunity

standards as applied statewide,

or the City of Newport, or Northern

Kentucky or the Greater Metropolitan

Area of Cincinatti. This would

clearly implicate vagueness problems

addressed in the previous argument

herein.

The City of Cincinatti has within

its limits approximately 385,451

people. Kenton County, contingous

to Cincinatti has approximately

137,058 people and Campbell County,

also contiguous to Cincinatti

as well as Kenton County has

only approximately 83,317 people.

The people live and work in the

greater Cincinatti area oe

-24-

includes Northern Kentucky where

Campbell County, and conversely

the Cinema xX Theatre is located.

By the rulings of the trial Court

the Jury was only permitted to

apply the standards of Campbell

County, notwithstanding the fact

that Cincinatti, Ohio is just

accross the river, and Kenton

County is separated from Campbell

County by an artificial boundry

line. There are approximately

605 ,000 people in the area and

Campbell County comprises only

14% of that mmber.

Further, the Cincinatti Airport

is located in Northern Kentucky,

Cincinatti T.v. and radio stations

regularly are broadcast and received.

im Campbell County, as well as

newspapers and billboard advertising.

te hes

oy. >

ge Fe

Miller vs. California, supra,

Hambling vs. U.S. Supra and Jenkins

vs. Georgia 418 U.S. 154 (1974)

clearly stand for the proposition

that a national standard is not

to be used in an obscenity prosecut-

ion. This Court has approved

the use of ae statewide standard

in Miller, a standard that would

include the vicinage from which

the jury is drawn, and Jenkins

approved the use of an instru

ction on contemporary community

standards which did not delineate

any particular geographical community

by whose standards the offending

press materials could be judged.

Numerous state courts have required

as to state legislation, that

a statewide standard for the community

be employed. Those include Alsbeme

2 eS ae

(Pierce vs. State, 292 Ala. 473,

296 So.2d 218 (1974)); New York, (People

vs. Heller, 33 N.Y. 2d 314 - 1974);

New Jersey ( State vs. Wein 392

A. 2d 607 - 1978) Texas (Berg

vs. Texas, 599 SiW; 2d 802 - 1980)

and Wisconsin (Court vs. State)

217 N.W. 2d 676 - 1974).

The use and application of the

Commonwealth of Kentucky Obscenity

Statute without a delineation

of any specific geographical boundries

to be considered in assaying the

“contemporary community £[standards"

or authoritative construction |

by the Appellate Court when viewed

in light of Petitioners' rights

and absence of definitive geographical

guidelines is void for vagueness

and further impacts on Petitioners

rights under the First Amendment.

Iv.

THE APPLICATION OF THE KENTUCKY

OBSCENITY LAW TO PETITIONERS HEREIN WAS

REPUGNANT TO THE FIRST, FIFTH AND FOUR-

TEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION IN THE HIGHLY PREJUDICIAL

AND INFLAMMATORY DEFINITION OF THE WORD

PRURIENT.

The trial court defined PRURIENT INTER-

REST to the jury as follows:

“means a lustful, lascivious,

erotic, shameful or morbid interest in

sexual conduct."

This Court first defined prurient in

Footnote to Roth vs. United States, 354

range of dictionary meanings to the

word but concluded by reference to the

A.L.I Model Penal Code 207.10(2) (Ten.

Draft No. 6, 1957), where prurience

was limited in it's scope to the terms

"shameful and morbid".

The Ninth Circuit in the J.R. y

Distributors case, supra, held the

use of similiar words to that used by

the trial judge to be unconstitution-

al.

The wisdom of that Court should be

the ruling of this Honorable Court in

finding that the Commonwealth of

Kentucky Obscenity Statute to be

unconstitutional.

CONCLUSION

The judgment of the Supreme Court for ‘

the Commonwealth of Kentucky should be By

reversed for the reasons set forth in P

The statute in question is clearly

unconstitutional.

Respectfully submitted,

ROBERT EUGENE SMITH

16133 Ventura Blvd.

Encino, Ca. 91436

(213) 981-9421

ATTORNEY FOR PETITIONERS

3

SUPREME COURT OF KENTUCKY

SC 83-SC-570-D

(83-CA-1179-D)

HAPPY DAY, INC., BROWN BEAR, INC.,

COMBINED ENTERTAINMENT VENTURES,

LTD., AND TOM HOLLIS, JR.,

Movant,

v.

COMMONWEALTH OF KENTUCKY,

Respondent.

Campbell Circuit Court

81-x-27

ORDER DENYING DESCRETIONARY REVIEW

The motion of Happy Day, Inc., Brown

Bear, Inc., Combined Entertainment Vent-

ures, Ltd., and Tom Hollis, Jr. for a

review of the decision of the Court of

Appeals is denied.

ENTERED: December 15, 1983

/s/ Robert F. Stephens

ef Justice

3

A-1 . ; 3

APPENDIX B

Commonwealth of Kentucky

Court of Appeals

NO. 83-CA-1179-D

HAPPY DAY, INC., BROWN BEAR, INC.,

COMBINED ENTERTAINMENT VENTURES,

LTD. & TOM HOLLIS, JR.,

MOVANT

v. ON MOTION FOR DISCRETIONARY REVIEW

FROM CAMPBELL CIRCUIT COURT

COMMONWEALTH OF KENTUCKY

RESPONDENT

eee ea RR RRR RRR RRR RR REE

ORDER DENYING DISCRETIONARY REVIEW

BEFORE: REYNOLDS, HOWERTON, and WHITE,

JUDGES

The Court, having considered the

motion for discretionary review and being

otherwise sufficiently advised, ORDERS

that it be, and is hereby, DENIED.

ENTERED : 6-28-83

/s/__Charles H. Reynolds 4

JUDGE, COURT OF APPEALS :

B-1.

CAMPBELL CIRCUIT COURT

DIVISION NO. TWO

COMMONWEALTH OF KENTUCKY, )

Plaintiff/Appellee )

-vs- )

BROWN BEAR, INC. )

COMBINED ENTERTAINMENT VENTURES

LTD., HAPPY DAY, INC. )

TOM HOLLIS, JR.,

De fendants/Appellants. '

NO. 81-X-27

ORDER AND JUDGMENT

FILED

APR 21, 1983

CAMPBELL CIRCUIT CT.

EDWARD J. BLAU, CLERK

This is a motion to reconsider and

alter previous findings of fact, conclu-

sions of law and Judgment dated March 9,

1983, which affirmed the Judgment of the P

District Court.

Although several defendants joined in

the motion, particular emphasis is placed

c-1.

Pa gee

on the defendant, Tom Hollis, Jr., who

in the District Court was found guilty

of facilitation in the depiction of

obscene films.

The corporate co-defendant, Happy Day,

Inc., was found guilty of distributing

obscene matter; and the two corporate co-

defendants, Brown Bear, Inc. and Combined

Entertainment Ventures, Ltd., were each

found guilty-of-facilitation.

There was documentary and other

evidence at the trial that Tom Hollis,

Jr. had performed various services for

all of the corporate co-defendants.

The thrust of this motion is that the

evidence showed only that the services

of Tom Hollis, Jr. were legitimate busi-

ness duties of a bookeeping and accounting

nature, unrelated to the commission

of depicting obscene matter.

C-2.

~S, ose, ST. |

It is recognized that merely doing

business with another who is engaged in

the commission of an offense does not

constitute facilitation; but in the pres-

ent case, the jury had before it evidence

that the subject films were being exhib-

ited in the conduct of operating a motion

picture theater. This was a business

enterprize, and the jury heard evidence

concerning the activities of the appel-

lant, Tom Hollis, Jr., in connection

with the many routine day to day neces-.

sities of conducting such a business.

Whether Tom Hollis, Jr. was performing

said functions as a disinterested party

concerning the offense and unrelated

thereto or whether he was knowingly and

willingly a party and principal in the

illegal venture was a matter the jury

had to decide from the evidence.

C-3.

a ae ee ee ee

Although the said appellant has

listed many things he did not do that

would tend to disprove he was guilty

of facilitation, the jury by its verdict

gave more weight to the evidence that

linked him with the offense.

IT IS, THEREFORE, ORDERED that

appellant's motion is overruled.

/s/___ THOMAS F. SCHMORE

JUDGE

I, Edward J. Blau, Clerk of the Camp-

bell Circuit Court, certify that a true

and correct copy of the foregoing was

mailed this 21st day of April, 1983,

to Hon. Justin Verst, Hon. William Wehr,

Hon. Mott Plummer, Hon. Robert Eugene

Smith, Hon. Steven Megerle and Hon.

' Richard Slukich. ee

Edward J. Blau, Clerk

by: /s/_Jean Grim D.C.

APPENDIX D

CAMPBELL CIRCUIT COURT

DIVISION NO. TWO

BROWN BEAR, INC. )

COMBINED ENTERTAINMENT VENT. LTD.,

HAPPY DAY, INC. and )

TOM HOLLIS, JR.,

Appellants,

-vs-

COMMONWEALTH OF KENTUCKY,

Appellee.

NO. 81-X-27

FINDINGS OF FACT, CONCLUSIONS

OF LAW AND JUDGMENT

PILED

MAR 9 1983

CAMPBELL CIRCUIT CT.

EDWARD J. BLAU, CLERK

This is a combined appeal by the

above named appellants, from a District

Court Judgment pursvant to a jury verdict,

wherein the appellants were found guilty af

and sentenced as follows: .

Happy Day, Inc. Distribution. Fine, ae

of Obscene Matter $10,000

D-1. r ‘ae

P

7 “2

Appellant Offense Sentence

Brown Bear, Criminal Fine, $5,000

Inc. Pacilitation

Combined Ent. Criminal Pine, $5,000

Vent. LTD Pacilitation

Tom Hollis, Jr.-Criminal 90 days Jail

Facilitation Fine, $250

The Judgment of the District Court

is affirmed.

Appellants advance many grounds in

support of their contention that revers-

ible error existed in the proceeding

and trial of this case.

FINDINGS OF FACT

1. The appeal by the co-defendants

is consolidated into one appeal.

2. ‘The various contentions advanced

by the defendants as reversible error

include the constiutionality [sic] of

the statutes involved, denial of a change

of venue, denial of a severance of the

D-2.

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ee ktoit’ ' : apie is 2, eet yh rite By Vine

ADO © ere. we ee tig SS eS Fan. PREG Ee a Py ee ew

several defendants for trial, denial

of a motion to require the Commonwealth

to elect to prosecute the corporate

defendants either as sham corporations

or as legitimate coporations, insuffi-

ciency of the criminal complaints, unlaw-

ful search and seizure, insufficient

evidence, improper designation of geograph-

ical community, improper admissions of

evidence of a prior conviction, refusal

of the trial judge to ask voir dire

questions submitted by appellants,

improper closing argument by the Common-

wealth, refusal of the trial judge to

vacate the bench, oppressive subpeona

duces tecum issued against the corporate

appellants,.improper instructions to

jury, denial of an oppportunity [sic]

to obtain the testimony of the judge

who issued the search warrant and

D-3.

ey)

discriminatory prosecution under the

obscenity statute.

CONCLUSIONS OF LAW ON THE LEGAL POINTS

RAISED IN APPELLANTS' STATEMENT

OF APPEAL

1. Appellants put in issue the con-

stitutionality of K.R.S. 531.010 and K.R.S.

531.020. Although the constitution

guarantees freedom of speech, the Supreme

Court has held that the states may pass

laws to prohibit obscenity. Thus, ob-

scenity, is not protected by the freedom

of speech amendment. In determining ob-

scenity, K.R.S. 531.010 does not impose

standards more severe than those enunci-

ated in Miller vs. California, 415 U.S.

15. The test set out in the Miller case

is whether the work appeals to the purient

interest, while K.R.S. 531.010 provides

that to be obscene the work must predom- ‘

inently appeal to the purient interest.

Conduct considered obscene under the

Miller guidelines because it appeals to

D-4.

the purient interest might still be legal

under K.R.S. 531.010 because even though

it might appeal to the purient interest,

it does not predominently appeal to such

interest. Therefore, K.R.S. 531 imposes

a less severe standard than that set out

in Miller. If the matter involved con-

sists of a film, it is not necessary that

one charged with facilitation see the

film. It is sufficient if knowledge comes

from any source. If it were necessary

that a person so charged to have previous-

ly viewed the film, one could merely

refrain from looking at the material and

be safe from prosecution regardless of

knowledge of the nature and content of

the material.

3. In substance, the criminal com-

plaint against Brown Bear, Inc. states

that the defendant knowingly facilitated

others in the distribution of obscene

matter at the theater, which was named.

The address of the theater appeared in

the complaint, along with the names of

the motion pictures and the dates they

were shown. The complaint informs the

defendant, who is stated to be the owner

of the real estate where the movies were

shown and that the defendant knew the

character and content of the films, and

facilitated by permitting the showing

on its property.

The substance of the complaint against

Combined Entertainment Ventures, Ltd.

is that said defendant facilitated the

offense by owning ther personal property

used in connection with the operation

of the theater, that the defendant knew a

the nature and content of the films, which :

were named, and that the facilitation

consisted of permitting the films to be

shown in the theater on the dates charged.

D-6. )

. The criminal complaint against Happy

Days, Inc. on its face states in substance

| that Happy Days, Inc., as the license-

holder and operator of the Cinema X The-~

ater, had in its possession the named

films and knew of their content and nature

and that said defendant was in possession

of the material with intention to exhibit

it.

The substance of the criminal com-

plaint against Tom Hollis, Jr. is that

he facilitated in the exhibition of

obscene matter, consisting of the films,

giving their titles, and the dates and

place where they were shown, and that

his part in the facilitation consisted

of performing services either as an agent :

or an offficer [sic] or an employee or

any combination of such capacities of

the three named corporations. The

TS oo Ot ee

complaint further states that said defen-

dant did this knowingly.

With reference to the appellants,

Brown Bear, Inc., Combined Entertainment

Ventures, Ltd., and Tom Hollis, Jr., all

of whom were charged with facilitation,

they argue the the scienter requirements

have not been met because there has to

be personal knowledge that the contents

of the films are obscene, and that there

has been no evidence that the pictures

were actually viewed by Tom Hollis, Jr.

or by anyone as agent of the corporate

defendants. It is correctly stated that

knowledge is a prerequisite, but as here-

inbefore stated, a viewing of the films

ee > ee

by one accused of facilitation is unneces-

sary if knowledge has come from any other

source. The complaints use the word

"knowingly". So far as the complaints

are concerned, the use of this word

charges scienter. Hanling vs. US, Supra.

It is a question of fact requiring proof

whether the defendant, Tom Hollis, Jr.

had the necessary knowledge and whether

any of the corporate officers, agents

or servants had personal knowledge of

the nature and contents of said films.

That one who facilitates “should have

known" is insufficient. The jury was

not instructed that it could find guilt

on this basis, should have known.

The appellant, Tom Hollis, Jr., takes

issue with the sufficiency of the com-

plaint in its statement that his activ-

ities were in the capacity either as an

agent or officer or employee of the |

corporations without stating specifically

his capacity or for which of the corpor-

ations or combination of them he acted.

The conjunctive and subjenctive [sic]

form of the accusation is considered by

D-9..

said appellant to be defective. R.Cr.2.02

requires the complaint to contain a writ-

ten statement of the essential facts con-

stituting the offense charged. In the

case of an indictment, which is a form

of criminal complaint, it is sufficient

if it alleges that the means by which

the defendant committed the offense are

unknown or that he committed it by one

or more alternate specified means. R.Cr.6.

Thus, if the accuser doesn't know which

of several possible alternatives as to

how an offense was committed, but does

know that it was committed in one or more

of several ways and so alleges, the accus-

ing document is not rendered invalid.

In the present case, the defendant, Tom

Hollis Jr., is accused of criminal facil-

itation by acting for the corporate enti-

tles. The exact capacity is not stated,

but the essential fact alleged is that

D-10..

he

}

he was acting for the corporations and

in any of the alternate capacities listed

an offense would be committed. Said

appellant could not show that he was

misled in the preparation of his defense

because of the alternative allegation,

especially since the detailed facts con-

cerning capacity more likely would be

in the peculiar knowledge of the accused.

Therefore, it is concluded that the

several criminal complaints were suffi-

cient under the criminal rules and are

not so vague as to prejudice a proper :

preparation of defenses. £

4. The search warrant is legally

valid. Appellants assert the police

officer who viewed the films and signed 4

the affidavit for a search warrant was %

prejudiced because he was an officer.

Moreover, it is stated that the affidavit —

of the officer that the films were. obscene a

D-11. : _

ct i a "ae > |

| |

;

°

y

,

is a mere conclusion on his part and that

the search warrant procedure lacked the

necessary protection of a neutral magis-

trate.

The district judge viewed the films

himself before he signed the search war-

rant. The officer had seen the film on

the llth day of the month and again on

the 12th day of the month. It was on

the 12th that the district judge saw the

film at the same time as the officer.

It is not material that the appellants

were charged with exhibiting the films

on both the lith and 12th, the llth being

one day before the district judge himself

had seen the film. If the district judge

had probable cause to sign the warrant

on the basis that he had seen the film

on the 12th, it would also give credence

to the affidavit of the officer who swore

that he had seen the same film on the

D-12.

ee eee eer ae

; "

llth. The Western Corporation vs. Com-

monwealth of Kentucky, Ky. 558 SW 2d 605.

5S. The district court did not err

in refusing to require the Commonwealth

to elect whether or not to prosecute on

the basis that the involved corporations

were sham corporations. They were legally

formed and legally existing under the

corporate laws of the Commonwealth. As

to them, the issue was whether their

agents knowingly violated K.R.S. 531.020.

Whether or not they were organized and

existing solely as a means for an indiv-

| idual to conduct the theater and use their

different names and entities for real

4 estate ownership and theater license

purposes, the issue concerning their guilt

) or innocence remains the same, namely,

3 whether their agents knowledgeably

violated K.R.S. 531. "

:

6. The Court did not err in denying

Tom Hollis, Jr.'s motion for judgment

notwithstanding the verdict. The defense

was that he was an independent contractor

for the corporation Brown Bear, Inc.,

and as such his activity was limited only

to keeping books and doing those things

which an ordinary bookkeeper or accountant

would do. It was a question of fact for

the jury to decide in what capacity he

was acting and what he knew about the

operation. Either as an independent

contractor or as an agent, there was

evidence to support the jury's finding ‘

that he was knowingly facilitating the |

commission of an offense. g

4 7. Appellants argue that K.R.S. 531 :

i renders illegal activity that otherwise

would not be illegal because it would 4

si be under the protection of the first .

Be constitutional amendment. Counsel "5 a

D-14. ae

contends the statute makes such activity

illegal solely because the exhibition

or distribution happens to be a commercial

exploitation. K.R.S. 531 makes no dis-

tinction concerning exploitation, there-

fore, this objection to the statute is

considered not well taken.

8. Appellants contend the trial

court's failure to instruct the jury that

in determining community standards that

such standards must be applied in accor-

dance with the understanding of tolerance

of the average person in the community,

constituted reversible error. The jury

; ‘

. was properly instructed that they must :

determine what the community standards

> are and in so doing it must consider the

adult community as a whole, educated and

uneducated, religious and irreligious

adults from all walks of life. This

instruction convered the spectrum from 2

D-15. oo

the most prudish to the most tolerant...

Further detail would be unnecessary and

unwarranted.

9. Evidence of prior convictions

are generally inadmissible for reasons

too well settled to require repetition.

However, when considering such evidence

in this case, it is concluded that the

admission into evidence of a former recent

conviction of Brown Bear, Inc. of exhib-

iting obscene material was relevant as

to Brown Bear, Inc. to show plan or scheme

and was relevant to the co-defendants

who were charged with facilitation on

the question whether they had knowledge |

of the nature and content of the present J

films. Further, the jury was admonished 4

of the limitations of such evidence. 4

10. The trial court did not err in a

personally conducting the voir dire exam-

ination of the jury panel and in failing 4

| D-16.

— 2 ¥ ee i eo et oP ~~". es or

at

, : 7

> 2

7. wf

;

to ask the 107 questions submitted by

the appellants. It was discretionary

with the court to conduct the examination

so long as it elicited information from

the prospective jurors necessary to reveal

their qualifications and freedom from

bias and to enable the parties to properly

exercise the right of peremptory chal-

lenges and motions to challenge for cause.

On review, there has been found no

lack of information about the prospective

jurors that would tend to conceal possible

prejudice on the pert of the jurors or

frustrate the proper exercise of chal-

lenges.

11. It is contended by the appellants

that the Court erred in permitting the

Commonwealth in its closing argument to

refer to the corporate existence of the

corporate defendants as sham. The ques-

tion raised here is similar to the.

D-17.

appellants’ motion to require the Common-

wealth to elect to prosecute either the

corporations as sham or otherwise. As

legally organized and existing corporate

entities, their responsibilities with

reference to the offenses with which they

were charged is dependant upon their

guilt or innocence, based upon the action

and knowledge of their corporate officers.

This criteria did not change whether or

not they were considered sham. It was,

therefore, not error to permit prosecuting

counsel to draw his own conclusions from

the evidence in closing argument.

12. The trial judge was considered

biased by the appellants, and they assign

as error that he did not vacate the bench.

He also personally referred to public ;

records for corporate information. His

reference to public records does not q

constitute error as obtaining evidence f

; ‘Tea

D-18. . . a

te ee, al ol

wy.

a

outside the courtroom because he may take

judicial notice of such records without

such records having been produced in the

courtroom. It has been previously found

on appellate review that there is not

sufficient indication of bias to require

him to vacate the bench.

13. Pretrial sesorés concerning the

role of the three cowporate appellants

as to ownership of the real estate appli-

cation for transfer of the license to

operate a theater, and general business

being conducted in the corporate names

is interwoven to the extent that the

corporate records became important to

the issues. No undue hardship or preju-

dice has been shown in the subpoena dues

tecum for said records.

14. Appellants moved for separate

trials, which motion was denied. Where

prejudice results to any defendant in

D-19.

a joint trial of co-defendants a severance

is imparative; but in this case there

is seen no serious conflict of interests

either between the corporate defendants

or between the individual and the corpor-

ations. Although appellants claim all

defendants were prejudiced by a joint

trial, it is not apparent.

15. It was not error to quash

the summons issued for the testimony of

the judge who issued the search warrant.

The issuing judge saw the films in person

and did not have to rely on the affidavit

of the officer, who had seen the films

on the day previous to the day they were |

viewed by the judge and again were seen |

by the officer at the same time they were

viewed by the judge. The judge as an

impartial magistrate could determine prob-

able cause concerning the nature of the

films themselves without reference to

the affidavit of the officer as to the

nature of the material.

16. The court was not in error in

failing to dismiss the action on the basis

of selective and discriminatory prosecu-

tion. A general statement by the appel-

lants that there are others in Campbell

County and in other parts of the state

exhibiting similar material and have not

been prosecuted is not a sufficient charge

to indicate a purposeful or discriminatory

prosecution of these defendants. Appel-

lants have not met the burden to claim

this as a valid defense as defined in

U.S. vs. Berries, 501 Fed. 2d 1207, cited

in appellants’ statement of appeal.

D-21.

McCown, & eae oe a a ye eS ae ee ee Ae

IT IS, THEREFORE, ORDERED AND ADJUDGED r

that the Judgment of the Trial Court be

affirmed. ;

APPENDIX E

CONSTITUTIONAL AND STATUTORY PROVISIONS

1. The pertinent provisions of the First i

Amendment are:

"Congress shall make no law...

abridging the freedom of speech,

.

or the press..."

2. The pertinent provisions of the

Fifth Amendment are:

"No person shall .. . be compel-

led in any criminal case to be a

witness against himself, nor be

deprived of life, liberty, or

property, without due process of

law. . . Fd ¢ >

3. The pertinent provisions of the

) Fourteenth Amendment are:

ey "No State shall make or enforce

any law which shall abridge the |

privileges or Gmanies of “3 :

nor shall any State deprive any

person of life, liberty, or

property, without due process of

law; nor deny to any person

within its jurisdiction the equal

protection of the law."