I agree that the obscene nature of material may be determined by the fact-finder based upon viewing the allegedly offensive material. Furthermore, the state need not present an expert witness or other evidence of community *Page 333 standards to establish its case so as to withstand a Crim.R. 29(A) motion for acquittal. Urbana ex rel. Newlin v. Downing (1989), 43 Ohio St. 3d 109, 113, 539 N.E.2d 140, 145. However, this acknowledgement as to the state's burden in proving its case in chief should not be interpreted to mean that an accused is not entitled to present public opinion and/or expert evidence on community standards in defending against a prima facie case. See Saliba v. State (Ind.App. 1985), 475 N.E.2d 1181, 1185, wherein the court aptly stated:
"However, expert evidence on this issue may be highly relevant. The jurors are not instructed to evaluate obscenity based on their personal opinions but are charged with applying contemporary community standards. Kaplan v. California,413 U.S. 115, 93 S. Ct. 2680, 37 L. Ed. 2d 492 (1973). In the absence of expert testimony, the jury's determination of contemporary community standards runs the risk of incorporating the individual juror's `necessarily limited, hit-or-miss subjective view' `on the basis of his personal upbringing or restricted reflection or particular experience of life.' Smith v.California, 361 U.S. 147, 165, 80 S. Ct. 215, 225, 4 L. Ed. 2d 205 [218] (1959) (Frankfurter, J., concurring). Consequently, the defendant in an obscenity prosecution is entitled to introduce relevant and appropriate expert testimony on the issue of contemporary community standards. Kaplan v. California,413 U.S. 115, 93 S. Ct. 2680, 37 L. Ed. 2d 492."
It is clear that the opinion poll was relevant under the definition found in Evid.R. 401. Evidence which tends to show the community's contemporary standards concerning obscenity would assist the jury in resolving factual issues involved in an obscenity prosecution. Given the unavoidable implications this case has on the accused's First, Sixth and Fourteenth Amendment rights, the trial court's discretion in admitting expert opinion and scientific experiments must be balanced against an accused's right to introduce appropriate evidence concerning a material element of the statutory definition of obscenity. See Kaplan v.California (1973), 413 U.S. 115, 121, 93 S. Ct. 2680, 2685,37 L. Ed. 2d 492, 498; Carlock v. State (Tex.Crim.App. 1980),609 S.W.2d 787. In my opinion, to do otherwise, results in an abuse of discretion.
I also acknowledge the fundamental principle that an appellate court reviews the propriety of decisions/judgments and not their underlying rationale. See Joyce v. General MotorsCorp. (1990), 49 Ohio St. 3d 93, 551 N.E.2d 172. While I agree that an appellate court should affirm a correct decision even where the trial court used improper reasoning to obtain its result, that principle has no application to the issue of whether or not the trial court abused its discretion in this case by excluding expert testimony.
As the majority opinion notes, the trial court excluded the public opinion poll on the improper basis that it was inadmissible hearsay. The majority then *Page 334 holds that, because other grounds exist for exclusion, i.e., relevancy and the discretion of the trial court in admitting expert evidence, that there was no error. As indicated above, the survey was clearly relevant to contemporary community standards of obscenity, notwithstanding the fact that it was not specific to acts shown in the video, etc. These concerns go to the weight of the evidence, not its admissibility. Asaff,supra.
As for exercising its discretion, I believe the trial court never, in fact, conducted such a balancing precisely because it erroneously determined that the "hearsay rule" precluded admissibility prior to attempting an analysis under Evid.R. 702. In other words, because the trial court previously misconceived the nature of the evidence, it never exercised its discretion to determine if the evidence would be helpful to the jury in resolving the issue of obscenity. Given that the trial court would have wide discretion in actually making that determination, it is a clear abuse of discretion not to make such an evaluation at all. See Wolfe v. Wolfe (Nov. 22, 1989), Pickaway App. No. 88-CA-18, unreported, 1989 WL 145455. Thus, the abuse of discretion standard used to review evidentiary questions cannot be utilized to affirm an erroneous decision in this instance.
Accordingly, I would reverse the judgment of conviction and remand for a new trial based upon appellant's second assignment of error. In all other respects, I concur in the judgment and opinion of the majority.