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Grand jury to be called to investigate allegations of obscenity

Abilene, Texas- A grand jury will be summoned to investigate alleged violations of state statutes in regard to promoting obscenity possessed and sold at the Lion’s Den Adult Superstore.

The order to summon a grand jury was released Friday afternoon following a review by all seven Eighth Judicial District judges.

“I’m a little surprised at the decision due to the fact that we have had so many people say they wish there was a petition opposing this group [Citizens for strengthening community virtues],” said Sandi Summers, a corporate field manager for the Lion’s Den. “I think there is much more support for us then they would lead the public to believe.”

The Lion’s Den Adult Superstore is located at the intersection of Fair Road and Interstate 70, which is outside the city limits in rural Dickinson County. The alleged violations are listed as K.S.A. 21-4301. Chapter 21 is listed as crimes and punishment. Under the Kansas Criminal Code article 43, crimes against the public morals.

Summers noted that the Lion’s Den chain has been in business for 32 years and has faced court challenges. Once in the history of the company a grand jury indictment had been brought against a store.

“All of those stores are still open today,” said Summers. “These protesters may say that they are hurting our business, but in reality they are doing us a favor. They are giving us free advertising…”

Promoting obscenity is a class A nonperson misdemeanor on conviction of a first offense, according to state statutes. Promoting obscenity is a severity level 9, person felony on conviction of a second or subsequent offense. Conviction of a violation of a municipal ordinance prohibiting acts which constitute promoting obscenity shall be considered a conviction of promoting obscenity for the purpose of determining the number of prior convictions and the classification of the crime under this section.

Upon any conviction of promoting obscenity, the court may require, in addition to any fine or imprisonment imposed, that the defendant enter into a reasonable recognizance with good and sufficient surety, in such sum as the court may direct, but not to exceed $50,000, conditioned that, in the event that the defendant is convicted of a subsequent offense of promoting obscenity within two years after such conviction, the defendant shall forfeit the recognizance.

Dickinson County District Court Judge Ben Sexton said the media will not be allowed to cover the proceedings for protection of jurors. The grand jury is expected to be convened in Abilene. A date for the grand jury to convene has not be set.

Following proceedings, a formal written indictment could be issued by the grand jury, Sexton said. If that occurs then a date for arraignment would be established. During an arraignment formal charges are issued.

The clerk of the District Court will summon 45 qualified jurors to appear in the Dickinson County Courtroom. At that time 15 jurors will be selected as grand jurors.

The grand jury shall sit until its investigation is completed and the court so notified in writing. The grand jury will not be in effect for more than three months unless extended by order of the court showing good cause.

The costs associated with the grand jury will be paid by Dickinson County, Sexton said.

The judge could not comment on any specifics, but did cite the state statute that would pertain to the grand jury’s investigation.

Dickinson County Attorney Kristie Hildebrand said Friday night she has received a report from the Dickinson County Sheriff’s Department that she is in the process of reviewing. That information may or may not be a part of the grand jury’s investigation. The report was filed after a formal complaint was made to the Sheriff’s office by a citizen. The Sheriff’s office is obligated to investigate complaints made by citizens.

She was willing to see what the grand jury concludes, particularly since community standards have been cited in state statutes.

“The grand jury is made up of representatives of the community,” Hildebrand said. “Fifteen people is a better representation than me as one person acting alone. I may wait for their decision as an indication for defining community standards.

Hildebrand could file charges separate from the grand jury’s investigation.

“We are very glad that the judges made the decision they did,” said Virgil Eubanks, a representative of the Citizens for Strengthening Community Virtue, who spearheaded the petition asking for the grand jury.

Here is the state statute:

21-4301. Promoting obscenity

(a) Promoting obscenity is knowingly or recklessly:

(1) Manufacturing, issuing, selling, giving, providing, lending, mailing, delivering, transmitting, publishing, distributing, circulating, disseminating, presenting, exhibiting or advertising any obscene material or obscene device;

(2) possessing any obscene material or obscene device with intent to issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit or advertise such material or device;

(3) offering or agreeing to manufacture, issue, sell, give, provide, lend, mail, deliver, transmit, publish, distribute, circulate, disseminate, present, exhibit or advertise any obscene material or obscene device; or

(4) producing, presenting or directing an obscene performance or participating in a portion thereof which is obscene or which contributes to its obscenity.

(b) Evidence that materials or devices were promoted to emphasize their prurient appeal or sexually provocative aspect shall be relevant in determining the question of the obscenity of such materials or devices. There shall be a presumption that a person promoting obscene materials or obscene devices did so knowingly or recklessly if:

(1) The materials or devices were promoted to emphasize their prurient appeal or sexually provocative aspect; or

(2) the person is not a wholesaler and promotes the materials or devices in the course of the person’s business.

(c) (1) Any material or performance is “obscene” if:

(A) The average person applying contemporary community standards would find that the material or performance, taken as a whole, appeals to the prurient interest;

(B) the average person applying contemporary community standards would find that the material or performance has patently offensive representations or descriptions of (i) ultimate sexual acts…

(C) taken as whole, a reasonable person would find that the material or performance lacks serious literary, educational, artistic, political or scientific value.

13425 (2) “Material” means any tangible thing which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound or other manner.

(3) “Obscene device”…

(4) “Performance” means any play, motion picture, dance or other exhibition performed before an audience.

(5) (Description of the acts)…

(6) “Wholesaler” means a person who sells, distributes or offers for sale or distribution obscene materials or devices only for resale and not to the consumer and who does not manufacture, publish or produce such materials or devices.

(d) It is a defense to a prosecution of obscenity that:

(1) The persons to whom the allegedly obscene material was disseminated, or the audience to an allegedly obscene performance, consisted of persons or institutions have scientific, educational, or governmental justification for possessing or viewing the same;

(2) the defendant is an officer, director, trustee or employee of a public library and the allegedly obscene material was acquired by such library and was disseminated in accordance with regular library policies approved by its governing body; or

(3) the allegedly obscene material or obscene device was purchased, leased or otherwise acquired by a public, private or parochial school, college or university, and that such material was either sold, leased, distributed or disseminated by a teacher, instructor, professor or other faculty member or administrator of such school as part of or incident to an approved course or program of instruction at such school.

(e) The provisions of this section and the provisions of ordinances of any city prescribing a criminal penalty for exhibit of any obscene motion picture shown in a commercial showing to the general public shall not apply to a projectionist, or assistant projectionist, if such projectionist or assistant projectionist has no financial interest in the show or in its place of presentation other than regular employment as a projectionist or assistant projectionist and no personal knowledge of the contents of the motion picture. The provisions of this section shall not exempt any projectionist or assistant projectionist from criminal liability for any act unrelated to projection of motion pictures in commercial showings to the general public.

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