Summary
In State v. Thomas, 57 Ohio St.2d 71, 387 N.E.2d 229 (1979), a per curiam opinion, the Supreme Court of Ohio reviewed the Akron Municipal Court's dismissal of a pandering obscenity (R.C. 2907.32) charge.
Summary of this case from Turoso v. Cleveland Municipal CourtOpinion
No. 78-1367
Decided March 21, 1979.
Criminal law — Pandering obscenity — R.C. 2907.32 and 2907.01(F) — Constitutionality.
CERTIFIED by the Court of Appeals for Summit County.
Defendant was arrested and charged with pandering obscenity, in violation of R.C. 2907.32. In the Akron Municipal Court, he pleaded not guilty and moved to dismiss the case on the ground that R.C. 2907.32 and 2907.01(F) are unconstitutional. No evidence was submitted to the court, which held the statutes "unconstitutionally overbroad and vague" and dismissed the charge.
As relevant here, R.C. 2907.32 provides that:
"(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:
"* * *
"(3) Create, direct, or produce an obscene performance, when the offender knows that it is to be used for commercial exploitation or will be publicly presented, or when he is reckless in that regard;"
R.C. 2907.01(F) provides the definition of obscenity.
On appeal, the Court of Appeals for Summit County affirmed the judgment of the Municipal Court.
Finding its judgment to be in conflict with the judgment of the Court of Appeals for Cuyahoga County in the cases of State v. Burgun (1976), 49 Ohio App.2d 112, and State v. Burgun (August 18, 1977, No. 36078), unreported, the Court of Appeals certified the record of the case to this court for review and final determination.
Mr. Lynn C. Slaby, for appellant.
Vasko, Howard Morris Co., L.P.A., and Mr. William E. Howard, for appellee.
The judgment of the Court of Appeals is reversed on authority of and for the reasons stated in State v. Burgun (1978), 56 Ohio St.2d 354, wherein this court held, in paragraph one of the syllabus, that "R.C. 2907.01(F), which sets forth the definition of `obscenity,' is neither unconstitutionally overbroad nor void for vagueness when it is authoritatively construed to incorporate the guidelines prescribed in Miller v. California, 413 U.S. 15."
Judgment reversed.
CELEBREZZE, C.J., HERBERT, KEEFE, P. BROWN, SWEENEY, POTTER and HOLMES, JJ., concur.
KEEFE, J., of the First Appellate District, sitting for W. BROWN, J.
POTTER, J., of the Sixth Appellate District, sitting for LOCHER, J.