dissenting.
The legal issue presented is what manner of proof is required in a criminal prosecution for commercial exhibition of an obscene item to prove that the item is obscene as defined by the Arizona statute, which conforms to the three-part test of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). I do not believe that City of Phoenix v. Fine, 4 Ariz.App. 303, 420 P.2d 26 (1966) is dispositive of this question. And even if Fine can be viewed as requiring expert testimony, I dissent from the position giving individuals a greater state right to commercially exhibit sexually explicit materials than is required under the federal constitution.
City of Phoenix v. Fine, supra, involved a prosecution under a different section of the code, A.R.S. § 13-535. An operator of a bookstore in downtown Phoenix was ultimately enjoined from the sale or distribution of four magazines under A.R.S. § 13-535 (now § 13-3505), injunction of obscene materials, and A.R.S. § 13-531.01 (now § 13-3501), the definitional section. Allegedly obscene books and magazines had been seized by an assistant city attorney who read none of the material before its seizure. A TRO was issued on the allegations. Thus, a prior restraint of potentially First Amendment protected materials occurred without an adversary proceeding and, indeed, without a thorough examination of the materials in question. This was disapproved in Fine. The court also rejected the evaluation of allegedly obscene materials from the perspective of one person. Much has happened since Fine which I believe limits the strictures, there expressed in dicta.' See State v. Bartanen, 121 Ariz. 454, 591 P.2d 546, cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113 (1979); State v. Navarrette, 115 Ariz. 574, 566 P.2d 1050 (App.1977).
In the instant case, a motel owner was prosecuted for exhibiting an allegedly obscene film under A.R.S. § 13-3502, a class 6 felony, with the question of obscenity submitted to the jury as an issue of fact. The question of obscenity was submitted to a jury of Arizona citizens, in full conformance with repeated statements by the United States Supreme Court concerning what manner of evidence is required:
“The adversary system, with lay jurors as the usual ultimate fact-finders [sic] in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community____” Miller v. California, supra [93 S.Ct.] at 2618.
“Nor was it error to fail to require ‘expert’ affirmative evidence that the materials were obscene when the materials *321themselves were actually placed in evidence (citations omitted). The films, obviously, are the best evidence of what they represent.” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 2634, 37 L.Ed.2d 446 (1973). See also, Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 2901, 41 L.Ed.2d 590 (1974), and Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 2685, 37 L.Ed.2d 492 (1973).
Nor does a jury trial present a case of the sin of legal solipsism, rejected in Fine, writ large. The jury of eight in this case was repeatedly counseled by both sides and instructed by the court to evaluate the film in terms of what the average adult in the community would think of it, not how it personally reacted to it. The terms “prurient interest” and “patently offensive” were taken from the Arizona statute based on Miller v. California, supra, were defined by the court, and have passed scrutiny by our supreme court. State v. Barta-nen, supra. The jury was not asked to characterize an interest as morbid or unhealthy simply because they did not share it. They were asked:
“In deciding what conclusion the average person applying contemporary State standards would reach in these"respects, the jury is entitled to draw on it’s [sic] own knowledge of the views and senses of the average person in the community from which you came.
In deciding whether the material as a whole appeals to the prurient interest and whether the sexual conduct is portrayed in a patently offensive way, the jury must avoid subjective personal and private views in determining community standards and instead evaluate what judgment would be made by a hypothetical average adult person applying the collective view of the adult community as a whole.”
Fine, because it involves injunctive measures without the benefit of a fact finder applying an objective, not personal standard, is inapplicable to this case.
Moreover, assuming that City of Phoenix v. Fine, supra, applies to prosecutions under A.R.S. § 13-3502,. formerly § 13-532, any requirement for expert testimony has been rejected by State v. Navar-rette, supra, also a Division One case. At issue in Navarrette was the obscenity of four films as defined by A.R.S. § 13-531.01, now § 13-3501. Commenting on the presentation by the state of an expert witness, the court noted that expert testimony on the issue of obscenity is not necessary. 115 Ariz. at 577, n. 1, 566 P.2d at 1053, n. 1. Navarrette was decided after Paris Adult Theatre I and cites specifically to it, thereby undermining the argument that Arizona continues to acquiesce in the purported “rule of Fine.”
Disturbing is the alacrity with which the majority leaps to require in Arizona “proof greater than that required by the federal courts,” majority opinion at 318, 787 P.2d at 1114, giving a greater right to those who make a profit from .the debasement of the human spirit, than is required by our federal constitution after a full review of the issue. See Hamling v. United States, supra; Kaplan v. California, supra; Paris Adult Theatre I v. Slaton, supra. States need not wait for behavioral experts to provide empirical data before imposing controls on commerce in obscene materials. Kaplan v. California, supra. This sentiment can apply equally to the state law of evidence and the substantive law of obscenity. State obscenity law involves important state interests. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). These statutes go to the very quality of life in a particular community. Id.
I fully concur in the view of the Arizona Supreme Court that “the concept of federalism assumes the power, and duty, of independence in interpreting our own organic law.” Pool v. Superior Court, 139 Ariz. 98, 108, 677 P.2d 261, 271 (1984). Where I part company with the majority is in their decision, without the compulsion of federal law and on the shakiest basis in state deci-sional law, to reject the verdict of a jury properly instructed to apply an objective *322standard and whose determination is easily ratified by viewing this exploitative barrage of explicit anal and oral sex, group orgies and scatology.
NOTE: This cause was decided by the Judges of Division Two as authorized by A.R.S. § 12-120(E).