A graphic movie shown in a Columbus high school Spanish class was ruled “obscene” and a jury was justified in convicting a substitute teacher of four felonies for disseminating harmful matter to juveniles, a divided appeals court ruled.

The Tenth District Court of Appeals recently affirmed the conviction of Sheila Kearns, who showed five East High School Spanish classes portions of the movie “The ABCs of Death” in 2013. Under R.C. 2907.31(F), it is a first-degree misdemeanor to disseminate matter harmful to a juvenile, but if the material is found to be obscene, the violation increases to a fifth-degree felony.

The three-judge panel’s majority found the movie met the definition of obscene and the evidence was sufficient to lead to Kearns’ felony convictions. The dissenting judge wrote that neither of the two students who testified in the case stated they saw the segments of the movie that authorities labeled obscene and that, taken as a whole, it wasn’t clear the movie was obscene.

Teacher Unclear About Movie’s Content
Kearns was serving as a “permanent substitute teacher” when she showed five Spanish classes parts of “The ABC’s of Death,” a nearly two-hour feature film created by 26 directors from around the world. Each director was given a letter of the alphabet, asked to choose a word beginning with the letter, and then created a short tale of death related to the chosen word. The Tenth District stated the vignettes included very graphic violence, sex, child molestation, and rape.

Immediately after one class, students reported to their choir class teacher what they saw in Spanish class, and that teacher notified the assistant principal, Carl D. Chamberlain. Chamberlain went to Kearns’ class near the end of the day, observed part of the movie, and eventually removed it from the classroom. He watched more of the movie and reported the content, which led Columbus Police Detective Lolita Perryman of the Exploited Children’s Unit to interview Kearns.

Perryman testified that Kearns told her she showed the movie because it contained Spanish and she was going to discuss the Spanish alphabet. Kearns told investigators she didn’t know the contents of the movie, but Chamberlain did observe her fast-forwarding through the movie and testified that she indicated her familiarity with it.

Kearns was indicted in Franklin County Common Pleas Court on five felony counts of disseminating matter harmful to juveniles, and the jury found her guilty of four counts, but not guilty of the count related to the first class of the day. She was sentenced to three years of community control that required her to serve 90 days in the Franklin County Corrections Center. The jail sentence was stayed pending her appeal, and she was required to surrender her teaching certificate.

Appeal Contests Presentation to Jury
Kearns raised six objections in her appeal, mostly centering on what information the trial judge allowed to be presented to the jury. Kearns claimed her attorney was unfairly limited in arguing that Kearns lacked a motive to share harmful materials to juveniles and wasn’t permitted to argue that she had a bona fide educational purpose in showing the film in class. She also claimed the jury was given improper instructions about the law and the elements needed to convict her, particularly that the jury wasn’t given the accepted definition of “prurient interest.” Materials that appeal to the prurient interest of viewers is part of the definition of “obscene,” and because the material was ruled obscene, the penalty increased from misdemeanor to felony.

Writing for the court majority, Judge Julia L. Dorrian noted the prosecutor provided a definition of prurient interest as “unwholesome interest in sex.” The definition isn’t as comprehensive as the definition the Tenth District has used in the past, which is “an appeal to an unhealthy, abnormal, unwholesome, degrading, shameful, or morbid interest in sex,” Judge Dorrian explained. However, the court ruled it wasn’t inaccurate and the jury didn’t indicate it used the prosecutor’s definition to reach its conclusion.

Judge Dorrian also wrote the trial judge was justified in not instructing the jury to consider Kearns’ defense that the movie was used for a bona fide educational purpose, which is permitted under R.C. 2907.31(C)(1). The judge noted Kearns argued she wasn’t a Spanish teacher and she claimed she did not know the content of the movie, so it could not support a claim she was using it for educational purposes.

Court Rejects First Amendment Claim
Kearns argued the movie wasn’t obscene and that it falls under the protection of the U.S. Constitution’s First Amendment. Judge Dorrian noted that the U.S. Supreme Court has developed a test for determining if material is obscene for adults and subsequently modified the test to determine what is obscene for juveniles. The Ohio General Assembly adopted the high court’s test for obscenity for juveniles when it passed R.C. 2907.31.

Judge Dorrian noted that R.C. 2907.01(E) states “harmful to juveniles” means “that quality of any material or performance describing or representing nudity, sexual conduct, sexual excitement, or sadomasochistic abuse in any form to which all of the following apply: (1) The material or performance, when considered as a whole, appeals to the prurient interest of juveniles in sex. (2) The material or performance is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for juveniles. (3) The material or performance, when considered as a whole, lacks serious literary, artistic, political, and scientific value for juveniles.”

Kearns argued that while the movie may not have serious literary, political, or scientific value, it does have serious “artistic” value and that means it isn’t obscene.

“(Kearns) argues that this was a horror film, and that it appealed to horror and death. The only support (she) offered for this argument is that it was premiered at the Toronto Film Festival. Yet, there is nothing in the record outlining the criteria to premier at the Toronto Film Festival or supporting the notion that the Toronto Film Festival only premiers films with serious artistic value. With this in mind, we cannot say this movie had serious artistic value,” Judge Dorrian wrote.

The Court also explained that to convict Kearns the jury had to consider the movie as a whole and whether the prevailing standards of the adult community led them to believe that the movie was suitable for juveniles. The Court found the jury’s conclusion was supported by sufficient evidence.

Judge Susan Brown concurred in the opinion.

Dissent Finds State Failed to Prove Case
In his dissent, Judge Gary Tyack wrote that he doubted Kearns watched the entire movie before showing it to the classes and that because each class period is 47 minutes, none of the students watched the nearly two-hour movie. He noted only the school administrators and the jury saw the entire movie and may have inferred the students saw it all. He wrote that the students who testified didn’t indicate they watched any of the portions of the film that the prosecution described as obscene.

“Again, because the State did not provide proof of what parts of ‘The ABC's of Death’ were actually shown to the juveniles and because several portions of the movie are neither harmful to juveniles nor obscene, the State failed to prove its case,” Judge Tyack concluded. “A person cannot be convicted of disseminating matter harmful to juveniles if the person does not actually provide the juveniles with material which is harmful or obscene. The fact that other parts of the movie which were not shown to juveniles or not proved to have been shown to juveniles, were more objectionable does not change the actual proof required to prove violations of R.C. 2907.31.”

State v. Kearns, 2016-Ohio-5941
http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2016/2016-Ohio-5941.pdf
Criminal Appeal from: Franklin County Common Pleas Courts
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 22, 2016

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