# Petition — Brown Bear, Inc. v. Kentucky

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 963

## Text

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."

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1323%3A1. Public record. Not legal advice.