activities” between a mother and son, the “sexual experiences” a mother, her teenage daughter, and her daughter’s friend have with two dogs, and a teenage boy who “shows up to engage in a sexual romp.” Fordyce, 569 N.E.2d at 358. The State argues that because the books in Fordyce were obscene, the videos Bedtelyon viewed are, too. After all, both feature incest and neither include pictures of nudity.
[15]This argument glosses over what actually made the materials in Fordyce obscene. Per the Obscenity Statute, it was not only that the books featured incestuous attraction, but also that incestuous sexual conduct was depicted or described. Id. Though Fordyce does not detail what acts are described in these books, the language our Court used implies sexual conduct as defined by our Sexual Conduct Statute, and the Court’s finding of obscenity required such acts.[1] Likewise, the issue of nudity is a red herring. The only relevant inquiry on appeal is whether these videos depict or describe sexual conduct in a patently offensive manner. The State fails to meaningfully engage in this inquiry, instead broadly citing the probation officer’s testimony of the sexually suggestive topics in the videos and making the conclusory assertion that “the probation officer- ↑ Unlike the Obscenity Statute, the Sexual Conduct Statute was amended after Fordyce. These amendments do not affect our analysis here, as they simply replaced references to “deviate sexual conduct” with “other sexual conduct (as defined in IC 35-31.5-2-221.5).” 2013 Ind. Legis. Serv. P.L. 158-2013 (H.E.A. 1006) (West). “Deviate sexual conduct” described exactly the same acts as “other sexual conduct.” Compare Ind. Code § 35-41-1-9 (2012) and Ind. Code § 35-31.5-2-221.5.
Court of Appeals of Indiana | Opinion 21A-CR-1952 | March 4, 2022
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