(concurring specialty)-
I concur in the result reached by Judge Randall, and write separately to emphasize my reasons for reversing appellant’s conviction.
The most basic of Minnesota’s constitutional principles provides that no person “shall be held to answer for a criminal offense without due process of law.” Minn. Const. art. I, § 7. Embodied in this principle is the rule that criminal statutes must be sufficiently clear and definite to warn a person of what conduct is punishable. State v. Simmons, 258 N.W.2d 908, 910 (Minn.1977). Sufficient statutory clarity guarantees due process of law by not only providing adequate notice to citizens of prohibited conduct, but also by furnishing standards to prevent arbitrary enforcement. See Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). A statute that lacks such clarity is void for vagueness. I believe judging a work’s “prurient interest” and “offensiveness,” under a “community standards” test, as set out in Minnesota’s obscenity statute, violates appellant’s due process rights under the Minnesota Constitution.
The current tripartite test, set forth in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419, (1973) and incorporated in Minnesota’s obscenity statute, deems a work obscene if it appeals to prurient interest, describes sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value. The prurient interest and patently offensive components are measured by the community standard. Jurors evaluate whether an average person in the community, using contemporary community standards, would conclude the material appeals to the prurient interest and is patently offensive. Pope v. Illinois, 481 U.S. 497, 500, 107 S.Ct. 1918, 1920-21, 95 L.Ed.2d 439 (1987).
The obscenity statute is unconstitutionally vague because there is not an a priori definition of what is obscene material. It is not contested the videotape and magazines depict acts of sexual conduct as enumerated in the obscenity statute. Minn. Stat. § 617.241, subd. 1(b). Knowledge of the depictions alone, however, does not mean appellant nor anyone could know the material was obscene. In fact, only after the jury finds beyond a reasonable doubt that the videotape and magazines violated contemporary community standards is the material deemed obscene. This after-the-fact finding of obscenity, with the attendant determination of criminal conduct, necessarily deprived appellant of fair notice of what conduct was prohibited.
The lack of advance warning as to prohibited conduct is inherent in delegating to the jury the authority to first ascertain the community standard and then apply it to the material in question. The jury, in other words, determines the applicable standard and then judges whether the appellant conformed to it. See Bloom v. Municipal Court for Inglewood, 16 Cal.3d 71, 89, 127 Cal.Rptr. 317, 329, 545 P.2d 229, 241 (1976). (Tobriner, J. dissenting). This process, however, presumes the jurors can determine what the community standard in fact is and that they will apply that standard rather than their own in deciding guilt or innocence. Scott, Obscenity and the Law: Is it Possible for a Jury to Apply Contemporary Community Standards in Determining Obscenity? 14 Law and Human Behavior 139, 141 (1989).
Reliance on these presumptions, however, cannot be reconciled with due process guarantees for four reasons. First, it is taken for granted that contemporary community standards are indeed ascertainable. The nebulous standard, however, may or may not exist; logic dictates the standard must be determinative before it can be applied, and if it is not, fundamental fairness requires an acquittal. See State v. Kam, 68 Haw. 631, 634, 726 P.2d 263, 265 *703(1986). In this ease, appellant requested an instruction to that effect, but the trial court denied his request.
Second, the community standard, to the extent it is articulable, is fraught with such juror subjectivity that its application is unpredictable. Community standards are, in essence, equated with the juror’s own personal values and tastes. This tautology allows a criminal defendant’s guilt or innocence to be determined by “individual juror’s subjective reactions to the materials in question rather than by a predictable application of rules of law.” Smith v. United States, 431 U.S. 291, 316, 97 S.Ct. 1756, 1772, 52 L.Ed.2d 324 (1977) (Stevens, J. dissenting). Without resort to predictability, the defendant is required to guess about a future jury’s determination of contemporary standards of offensiveness and prurience. See State v. Henry, 302 Or. 510, 513, 732 P.2d 9, 10 (1987). This situation requires a degree of clairvoyance on the defendant’s part that is inconsistent with the constitutional requirement of fair notice.
Third, the highly charged content of an obscenity trial may encourage puritanical and majoritarian views to prevail. In concluding the Miller standard is unconstitutionally vague, Justice Stevens wrote:
The average juror may well have one reaction to sexually oriented materials in a completely private setting and an entirely different reaction in a social context * * * Since obscenity is by no means a neutral subject, and since the ascertainment of a community standard is such a subjective task, the expression of individual jurors’ sentiments will inevitably influence the perceptions of other jurors, particularly those who would normally be in the minority
Smith, 431 U.S. at 315, 97 S.Ct. at 1771 (Stevens J. dissenting). Unproveable aesthetic and moral assumptions may guide personal decisions, but they should not, even if embraced by the majority, justify regulation of other’s conduct. Yet an obscenity trial permits, and in fact requires, jurors to rely on their moral assumptions in determining what is obscene.
Paradoxically, jury instructions in an obscenity case, on the one hand, instruct the jury to disregard what it may have heard or seen about the case outside the courtroom, while on the other hand, require jurors to go outside the record to personally ascertain what community members think about the materials. This takes place even though the prosecution admits no evidence as to what the community actually believes. For good reason, this process is not permitted in other areas of the law, nor should it be allowed in obscenity cases. Such juror subjectivity is antithetical to due process.
Fourth, Minnesota’s obscenity statute violates due process because its lack of definite standards encourages arbitrary enforcement. In enforcing the present statute, the police can only guess if allegedly “obscene” material violates the statute; the jury must confirm the hunch by ascertaining whether the material actually conforms to the community standard. Equally important, without clear standards for the police to monitor and enforce, the mere threat of prosecution may chill expression of marginally pornographic material, even that which is constitutionally protected. Enforcement based on such indeterminate grounds is inimical to due process and freedom of expression. A more definite standard to judge obscenity is therefore required.
I acknowledge due process does not require “absolute certainty nor mathematical precision” in describing prohibited conduct; consequently standards may be stated in general and flexible terms. State v. Reynolds, 243 Minn. 196, 204, 66 N.W.2d 886, 891 (1954). When the question involves freedom of expression, however, the necessity of clear advance notice of prohibited conduct is particularly important. State v. Welke, 298 Minn. 402, 411, 216 N.W.2d 641 648 (1974). Minnesota’s present obscenity law neither furnished fair notice to appellant nor controlled arbitrary and selective enforcement of the statute. Accordingly, appellant’s due process rights were violated and his conviction is properly reversed.