(concurring in part, dissenting in part).
I concur in the majority’s determination that the statute at issue here is not unconstitutionally overbroad, that the trial court did not err by failing to suppress the video in question, and that the jury instructions as a whole were sufficient to obviate the necessity of a new trial.
In addition, I would reach the two issues which the majority did not address. I believe the evidence is sufficient to sustain appellant’s conviction. Further, I believe that the right of privacy is not broad enough to extend, to appellant’s acts, the first amendment guarantee to possess obscene material in one’s home as provided in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).
With regard to appellant’s claim that a six-person jury is unable to define a community standard, I do not disagree with the analysis of Judge Randall. However, it seems that the issue raised by appellant might be brought appropriately before the trial court as a pretrial matter whereupon the trial court would have the discretion to impanel a jury of more than six persons.
However, I respectfully dissent from the majority’s determination that Minn.Stat. § 617.241 (1988) is unconstitutional. Initially, it is clear that the wisdom or propriety of a statute is not a matter upon which any court may pass. As the Minnesota Supreme Court observed many years ago:
The wisdom or propriety of the statute is not a judicial question, but one solely for the legislature. A statute may seem unwise, it may seem unjust, it may seem unreasonable in its operation upon the rights of the citizen, but that view of the law, in the absence of some conflict with the Constitution, cannot be made the basis of a refusal by the courts to enforce it. If it be deemed thus obnoxious, the complaint should be addressed to the legislature.
Common School Dist. No. 85 v. County of Renville, 141 Minn. 300, 304, 170 N.W. 216, 218 (1918). I make no determination of whether Minn.Stat. § 617.241 is a statute wisely or improvidently enacted. I merely conclude that it is constitutional.
All statutes are presumptively constitutional. See Guilliams v. Commissioner of Rev., 299 N.W.2d 138, 142 (Minn.1980). Appellate courts must move cautiously before declaring a statute unconstitutional. McGuire v. C & L Restaurant Inc., 346 N.W.2d 605, 611 (Minn.1984). Indeed, the court will only declare a statute unconstitutional if the party challenging the statute proves beyond a reasonable doubt that the statute is constitutionally infirm. City of Richfield v. Local No. 1215, Int'l Assoc. of Firefighters, 276 N.W.2d 42, 45 (Minn. 1979). I believe appellant has failed to meet that burden of proof in this case.
I.
Obscenity is not protected speech under the first amendment to the United States Constitution. Miller v. California, 413 U.S. 15, 21, 93 S.Ct. 2607, 2613, 37 L.Ed.2d 419 (1973) (quoting Roth v. United States, 354 U.S. 476, 484-85, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957)); State v. Oman, 261 Minn. 10, 14, 110 N.W.2d 514, 518 (1961) (citing Roth with approval). Further, the current Minnesota obscenity law passes federal constitutional muster. See Miller, 413 U.S. at 24-5, 93 S.Ct. at 2615. Appellant concedes these factors.
Appellant does argue, however, that the obscenity statute at issue in this case offends the free speech guarantees of the Minnesota Constitution.1 Admittedly, “a state supreme court may interpret its own state constitution to offer greater protection of individual rights than does the federal constitution.” State v. Fuller, 374 N.W.2d 722, 726 (Minn. 1985). The supreme court, however, will not lightly interpret our constitution more stringently than the federal constitution. State v. Hamm, 423 N.W.2d 379, 382 (Minn. 1988).
Appellant carries the burden of showing the basis for according greater protection under the Minnesota Constitution than is accorded by the United States Constitution *705as interpreted by the United States Supreme Court. Both the Minnesota Constitution and territorial law existing at the time that constitution was written, give voice, I believe, to the attitude of the drafters regarding obscenity. Minn. Const, art. 1. § 16, which provides for freedom of conscience and guarantees the right to exercise one’s religious beliefs, explicitly limits that right:
the liberty of conscience hereby secured shall not be construed as to excuse acts of licentiousness.
Id. (emphasis added). This provision recognizes a moral underpinning to the exercise of the broad rights conferred by the constitution.
More specifically, at the time of the adoption of the constitution in 1857, Minnesota had a statute prohibiting obscenity on the statute books. The statute provided:
If any person shall import, print, publish, sell, or distribute any book, or any pamphlet, ballad, printed paper, or other thing containing obscene language, or obscene prints, pictures, figures, or other descriptions manifestly tending to the corruption of the morals of youth or shall introduce into any family, school, or place of education, or shall buy, procure, receive, or have in his possession any such book, pamphlet, ballad, printed paper, or other thing, either for the purpose of loan, sale, exhibition, or circulation, or with intent to introduce the same into any family, school, or place of education, he shall be punished by imprisonment in the county jail, not more than six months, or by a fine not exceeding two hundred dollars.
Rev.Stat. (Terr.), ch. 108 § 11 (1851).2
The proscription of the statute is not directed only to materials that tend to corrupt the morals of the youth but rather is a general criminal prohibition against printing, receiving, distributing, or selling materials “containing obscene language, or obscene prints, pictures, figures, or other descriptions manifestly tending to the corruption of [Minnesota] youth.” Id. (emphasis added). This statute demonstrates, I believe, a contemporaneous intent that obscenity was not a form of permissible speech when the Minnesota Constitution was adopted. Appellant has presented no evidence that Minnesota intended to afford greater protection to obscene works.3
II.
The majority rests its determination of unconstitutionality of section 617.241 upon the doctrine of vagueness. I believe the question of whether this statute is unconstitutionally vague has already been answered in the negative by Miller and by the Minnesota legislature’s incorporation of the Miller standard into our statute. Compare Miller, 413 U.S. at 24, 93 S.Ct. at 2615 {Miller test) with Minn.Stat. § 617.241, subd. l(a)(i)-(iii) (obscenity defined) and (b)(i)-(iv) (sexual conduct defined).
In State v. Welke, 298 Minn. 402, 216 N.W.2d 641 (1974), the Minnesota Supreme Court considered the constitutionality of a Minneapolis obscenity ordinance. The Welke court, in adopting4 the analysis announced in Miller for evaluating whether a matter is obscene, held that:
the word “obscene,” as used in this ordinance and like legislative enactments regulating or prohibiting obscenity, * * * embrace[s] articles and publica*706tions which are patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and patently offensive representations or descriptions of masturbation, excretory functions, and leud exhibition of the genitals.
Id. 298 Minn, at 409, 216 N.W.2d at 646-47. The court announced that adherence to this new test would pass constitutional scrutiny in Minnesota.5 Id.
In the cases decided since Welke, the supreme court has not signaled that it would apply a new test for obscenity. See City of Duluth v. Sarette, 283 N.W.2d 533, 537 (Minn.1979) (“Utilization of the Miller guidelines as the appropriate test [is] consistent with constitutional mandates”); Alexander v. City of St. Paul, 303 Minn. 201, 210, 227 N.W.2d 370, 375 (1975) (citing Miller as example of constitutionally valid ordinance); State v. Carlson, 298 Minn. 415, 416, 216 N.W.2d 650, 651 (1974) (“State v. Welke * * * fully considers the issues of authoritative construction of an obscenity ordinance in the constitutional framework of Miller ”); see also Koppinger v. City of Fairmont, 311 Minn. 186, 192-93, 248 N.W.2d 708, 712 (1976) (citing Miller with approval in deciding the appropriate standard for limiting nude dancing). Welke and its progeny signal an apparent willingness on the part of our supreme court to continue to apply the Miller requirements in Minnesota.
Furthermore, in Oman, the supreme court, addressing a statute even less specific than the one at issue in this case, held that the statute was not unconstitutionally vague under the Minnesota Constitution. Id., 261 Minn, at 19, 110 N.W.2d at 521. The court specifically stated:
We feel impelled also to reach the conclusion that the words “obscene or indecent” as used in § 617.24 are not unconstitutionally indefinite, and, furthermore, that they are not violative of the Constitution of the United States or of the state.
Id. (emphasis added).
The current obscenity statute includes a number of practical protections for potential defendants. First, the materials must depict specific forms of conduct (e.g. intercourse, excretory functions). Any person selling or otherwise distributing the materials is on notice that graphic depiction of such specified conduct may constitute obscenity. See Miller, 413 U.S. at 27, 93 S.Ct. at 2616-17; Oman, 261 Minn, at 17, 110 N.W.2d at 520. Second, a prosecutor must exercise discretion in deciding whether to charge under the statute. This determination must necessarily include the evaluation of whether sufficient evidence is available to support a probable cause determination. Third, a jury drawn from a cross section of the community must decide beyond a reasonable doubt, after applying contemporary community standards, that the work is patently offensive, that it depicts a specified class of activities, that it appeals to the prurient interest, and that it lacks serious literary, artistic, political or scientific value before it may convict. See Minn.Stat. § 617.241, subd. 1(a) (definition of the term “obscene”). The United States Supreme Court is satisfied that a statute containing these protections is constitutional; Minnesota case law supports the same result.
Next, the statute’s use of the contemporary community standard as the benchmark for determining whether materials are obscene does not constitute an impermissible ex post facto law. “An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed.” Starkweather v. Blair, 245 Minn. 371, 386, 71 N.W.2d 869, 879 (1955) (emphasis in original) (footnote omitted). In Starkweather, the supreme court provided guidance for interpreting the scope of the ex post facto prohibition. Quoting extensively from Justice Chase’s opinion in Calder v. *707Bull, 3 U.S. (3 Dali.) 386, 390, 1 L.Ed. 648 (1798), the Starkweather court stated:
The prohibition, in the letter, is not to pass any law concerning, and after the fact; but the plain and obvious meaning and intention of the prohibition is this; that the Legislatures of the several states, shall not pass laws, after a fact done by a subject, or citizen, which shall have relation to such fact, and shall punish him for having done it.
⅜ ⅝ ‡ ⅝ ⅜ ⅜
I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. * * * In my opinion, the true distinction is between ex post facto laws, and retrospective laws. Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post facto law: The former, only, are prohibited.
Starkweather, 245 Minn, at 387-88, 71 N.W.2d at 880 (emphasis in original). The court in Starkweather went on to quote Justice Story’s commentary on the United States Constitution. The passage of particular importance in this case stated:
the [ex post facto] prohibition reaches every law, whereby an act is declared a crime, and made punishable as such, when it was not a crime when done; or whereby the act, if a crime, is aggravated in enormity or punishment; or whereby different, or less evidence, is required to convict an offender than was required when the act was committed.
Id. at 388, 71 N.W.2d at 880 (quoting 2 Story, Constitution § 1345 (5th ed. 1891)).
The statute in controversy, as amended, has been the law in Minnesota since 1961. Neither the types of conduct, the degree of punishment nor the manner of prosecution have been changed so as to capture an unwary citizen for acts that were permissible until the legislature retroactively imposed criminal liability. This is not a case where a person performs an act believing it to be completely legal and then later learns that the law has changed to criminalize the conduct.
Finally, the jury’s consideration of the contemporary community standard does not deny a defendant the right “to be confronted with the witnesses against him.” Minn. Const. art. I, § 6. As Justice Brennan noted in his dissent in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 448, 77 S.Ct. 1325, 1331, 1 L.Ed.2d 1469 (1957), a jury “represents a cross-section of the community and has a special aptitude for reflecting the view of the average person.”
The adversary system, with lay jurors as the usual ultimate fact finders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law.
Miller, 413 U.S. at 30, 93 S.Ct. at 2618.
The jury is entrusted with deciding the fate of all criminal defendants. We indulge in a legal fiction if we believe that a jury leaves its experiences, perceptions, and knowledge of the community at the jury deliberation room door. The United States Supreme Court recognized the unique difficulties in judging whether a given work is obscene when it announced the community standard formulation. The Miller standard, adopted in Minnesota, accommodates differences in the standards of different communities while protecting works that have serious literary, artistic, political or scientific value.
The obscenity statute strikes a delicate balance between the constitutionally-protected right of freedom of expression and the wish to protect the public from materials that the community deems obscene. *708Recognizing that delicate balance, I feel compelled to end this dissent as I began it. Reasonable minds may differ as to the wisdom of the solution chosen by the legislature to strike the balance it did between these two concerns. I conclude, however, that the legislative solution passes constitutional muster under both the United States and the Minnesota Constitutions.
. I recognize that although the majority discusses this possible basis for a declaration of unconstitutionality, it does not appear to rest its decision upon it.
. This statute was later recodified after Minnesota was admitted to the union in Pub.Stat. ch. 96, § 11 (1858).
. Appellant’s reliance on State v. Henry, 302 Or. 510, 525, 732 P.2d 9, 17 (1987) is misplaced. The court in Henry rejected outright the longstanding principle (adopted in federal and Minnesota jurisprudence) that obscenity is not protected speech, finding instead that, under the broader interpretation of the Oregon Constitution free speech provision, obscenity constituted protected speech. The unique constitutional history of Oregon does not assist this court in interpreting Minnesota constitutional law. Furthermore, Henry does not declare the statute unconstitutional on vagueness grounds as does the majority in this case.
.Justice Otis in his concurring opinion argued that the court’s “adoption” of the Miller test constituted "mere dictum.” However, the remaining eight justices of the supreme court did not join Justice Otis in his opinion.
. The court reversed the conviction in Welke because the defendant did not receive notice of the new standard adopted by the supreme court.