All assignments of error should be overruled and the judgment of the trial court should be affirmed.
The trial court did not abuse its discretion in excluding appellant's public opinion poll and expert testimony purporting to be evidence of contemporary community standards.
As the majority states, in an obscenity trial the trier of fact must determine, among other factors, whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest.Miller v. California (1973), 413 U.S. 15, at 24, 93 S. Ct. 2607, at 2615, 37 L. Ed. 2d 419, at 431; Roth v. United States (1957),354 U.S. 476, at 490, 77 S. Ct. 1304, at 1312, 1 L. Ed. 2d 1498, at 1510. As stated in footnote 20 of Roth, material which appeals to a prurient interest is that having a tendency to excite lustful thoughts. Thus, the standard upon which this factor is to be judged is whether the average person considering contemporary community standards determines that the material taken as a whole has a tendency to excite lustful thoughts. Given the voir dire process and the selection of a jury of peers who represent the community and who have actually viewed the materials which were placed in evidence, it seems superfluous and misleading to admit expert testimony. As noted in Paris AdultTheatre I v. Slaton (1973), 413 U.S. 49, at 56, 93 S. Ct. 2628, at 2634, 37 L. Ed. 2d 446, at 456, in fn. 6:
"This is not a subject that lends itself to the traditional use of expert testimony. Such testimony is usually admitted for the purpose of explaining to lay jurors what they otherwise could not understand. Cf. 2 J. Wigmore, Evidence §§ 556, 559 (3d ed. 1940). No such assistance is needed by jurors in obscenity cases; indeed the `expert witness' practices employed in these cases have often made a mockery out of the otherwise sound concept of expert testimony. See United States v. Groner,479 F.2d 577, 585-586 (CA5 1973); id., at 587-588 (Ainsworth, J., concurring). `Simply stated, hard core pornography . . . can and does speak for itself.' * * *"
I agree with that statement and would find that the trial court did not abuse its discretion in rejecting the expert testimony relating to the surveys. It should be kept in mind that an abuse of discretion standard is employed concerning the admission of expert testimony in an obscenity case. Urbana *Page 122 ex rel. Newlin v. Downing (1989), 43 Ohio St. 3d 109, at 113,539 N.E.2d 140, at 144. The record does not support a finding that the trial court abused its discretion.
A second reason for rejecting the evidence concerning the surveys as proof of contemporary community standards in regard to whether the material herein appealed to a person's lustful interests is that the standard was cleverly changed to benefit the defendant. Appellant's counsel stated in his proffer that the survey was calculated to determine whether the material went substantially beyond the "customary limits of candor, either tolerated or accepted within the community." As can be noted, the criterion has been changed to what people might tolerate rather than what is obscene as appealing to the prurient or lustful thoughts of the average viewer. The issue is not what people will tolerate but what is the community standard for a material taken as a whole as to its appeal to lustful thoughts. Probably many viewers would candidly admit that that is the very reason that they view the material. Does that make the material any less obscene? I think not.
Regardless of what Dr. Scott may state, there is a vast difference between viewing the material as opposed to being asked questions about it. While it might be argued that objection only goes to the weight of the evidence, it seems apparent to me that reliance is being made upon uninformed hearsay statements which once again leads one to the conclusion that the jury and court who actually view the evidence are the only ones in the position to make this important determination.
Finally, a de novo review of the material leads one to the inescapable conclusion that the material is designed only to appeal to prurient or lustful interests.
The judgment of the trial court should be affirmed. *Page 123