Ballew v. State

Citations: 227 S.E.2d 65; 138 Ga. App. 530; 1976 Ga. App. LEXIS 2223Docket: 51795

Court: Court of Appeals of Georgia; April 6, 1976; Georgia; State Appellate Court

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Claude Ballew appeals his conviction for distributing obscene materials, specifically for showing the film "Behind the Green Door" at an Atlanta theatre on two dates in 1973. Ballew raises thirteen alleged errors, condensed into six main issues, with the first being that the film does not qualify as obscene under constitutional standards. The appellate court emphasizes that its role is to address legal errors rather than reassess the weight of evidence but acknowledges a precedent allowing for independent appellate review of obscenity. Citing Supreme Court rulings, the court notes that it must independently determine the constitutional fact of obscenity rather than solely rely on the jury's verdict. The court references several landmark cases underscoring the necessity of this independent review, highlighting that determining obscenity involves significant constitutional issues that the appellate court is obliged to confront. Ultimately, the court asserts its duty to uphold constitutional protections while also recognizing the complexities involved in obscenity cases, culminating in a comprehensive review of the film in question.

The purpose of the legal review was two-fold: to evaluate if sufficient evidence supported the verdict and to independently assess the constitutional fact of obscenity. Under Section 26-2101 (b) of the Criminal Code, material is deemed obscene if, when viewed as a whole and applying community standards, it primarily appeals to prurient interests, lacks redeeming social value, and exceeds customary limits of candor regarding nudity and sexual acts. The film "Behind the Green Door" was found to predominantly appeal to prurient interests, lacking redeeming social value, and presenting explicit sexual content, including graphic depictions of sexual acts and nudity, thus qualifying as hard-core pornography. 

The court concluded that the film was obscene under constitutional law and not protected by the First and Fourteenth Amendments. In addressing Ballew's contention regarding insufficient evidence to support the verdict, the court affirmed that the film itself served as adequate evidence of obscenity. Ballew's connection to the exhibition was established through his management of the adult theatre, his presence during screenings, and his role in ticket sales and theater operations. Although Ballew argued that evidence did not prove his control over or knowledge of the film's content, the advertisement of the film on the theatre's marquee and its classification as an adult theatre substantiated his involvement.

Appellant was present during the film's exhibition on two separate occasions and sold tickets during the second showing, allowing the jury to reasonably conclude that he aided and abetted the film's exhibition. The evidence sufficed to establish appellant's guilty knowledge of the film's obscene nature, as constructive knowledge was proven through facts that would alert a reasonable person to the material's suspect content. The trial judge's instructions to the jury were consistent with legal standards and did not violate appellant's constitutional rights. Appellant's motion to suppress the film was denied due to the adequacy of search warrant affidavits, which detailed the film's content sufficiently to establish probable cause. 

Appellant argued that his two counts of violation stemmed from a single transaction, potentially infringing on his double jeopardy rights. However, each count involved distinct incidents on different dates with different film copies, constituting separate offenses. Lastly, appellant claimed he was denied a jury trial under the Sixth and Fourteenth Amendments by being tried before a five-person jury. This claim was rejected based on Georgia law, which permits a minimum of five jurors. The court affirmed the trial court's judgment, finding no error.