Weissmann, J.
Forbidden by the terms of his probation from accessing obscene material, Michael Bedtelyon landed in hot water with his probation officer after watching sexually suggestive anime cartoons. The court concluded the material constituted obscenity and revoked four years of Bedtelyon’s suspended sentence. On appeal, Bedtelyon argues that the State failed to prove the videos constituted obscenity as defined by statute. We agree.
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Bedtelyon argues the court erroneously revoked his probation because the YouTube videos he watched were not obscene as defined by statute.
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Though Bedtelyon does not make arguments related to freedom of speech, the First Amendment of the United States Constitution and Article I, Section 9 of the Indiana Constitution inevitably loom large in discussions of obscenity. Obscenity belongs to a limited class of speech that is not guaranteed state or federal protection. Fordyce v. State, 569 N.E.2d 357, 362 (Ind. Ct. App. 1991) (“[O]bscenity was not intended to be cloaked with the protection of the free speech clause [of Indiana’s Constitution]”); Roth v. United States, 354 U.S. 476 (1957) (“We hold that obscenity is not within the area of constitutionally protected speech or press.”). In regulating obscenity, however, states must be careful not to brush so broadly as to chill those classes of speech that are protected. Miller v. California, 413 U.S. 15, 23-24 (1973) (“We acknowledge . . . the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited.”)
We have found that Indiana’s obscenity statute is not broad enough to offend the First Amendment or Indiana’s Constitution. Fordyce, 569 N.E.2d at 359-60. But the United States Supreme Court has articulated a narrow path for constitutional obscenity restrictions. Miller, 413 U.S. at 24 (“[W]e now confine the permissible scope of [obscenity] regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed.”). We hesitate to adopt any interpretation that would broaden the meaning of the statute and risk upsetting its constitutionality. See, e.g., Daniels v. FanDuel, Inc., 109 N.E.3d 390, 396 (Ind. 2018) (“[S]tatutes should be interpreted so as to avoid constitutional issues.”).
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…[T]his Court has acknowledged that the word “depict” can mean “to form a likeness of by drawing or painting … to represent, portray, or delineate in other ways than in drawing or painting.” Fordyce, 569 N.E.2d at 364 (quoting Fordyce’s Br. at 8 (quoting Webster’s Third New International Dictionary (Merriam-Webster 1986))). A more recent Merriam-Webster entry defines “depict” as “to represent by or as if by a picture.” Depict, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/depict (last visited Feb. 16, 2022). It defines “describe” as “to tell someone the appearance, sound, smell, events, etc., of (something or someone): to say what something or someone is like” and “to represent or give an account of in words.” Describe, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/ dictionary/describe (last visited Feb. 16, 2022).
Bedtelyon argues that the State failed to prove that the videos he watched depicted or described sexual conduct as defined by statute. Bedtelyon is correct. The videos were not admitted into evidence, and we cannot determine that the court actually viewed them. Instead, the court relied on the testimony of Bedtelyon’s therapist and probation officer who watched the videos and obliquely described the content. Their testimony reveals that the cartoons feature “provocatively dressed,” though never naked, women. Tr. Vol. II, pp. 14, 25. The animated characters all experience incestuous attraction. Id. at 8, 25-28. Overall, the evidence suggests that these videos might have erotic themes, are erotic in tone, and describe erotic feelings. But the State did not present evidence that sexual conduct as defined by statute was depicted or described, rather than merely implied.
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Bedtelyon’s probation officer conceded that the type of sexual conduct forbidden by statute was left to the viewer’s imagination, describing the videos as largely “thought provoking” and “intended to . . . provoke . . . deviate thinking.” Tr. Vol. II, pp. 26, 28. Bedtelyon’s therapist testified that the videos were concerning because their content “feeds that deviate fantasy.” Id. at 15. But matters that encourage deviate thinking are not necessarily obscene—which Bedtelyon’s probation officer also acknowledged when he testified, “I guess where I said obscene maybe doesn’t necessarily make it illegal.” Tr. Vol. II, p. 37. Here, the probation officer is right. The United States Supreme Court has limited regulation of obscene materials to those that “depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.” Miller, 413 U.S. at 27.
In defense of the revocation, the State invokes Fordyce v. State. 569 N.E.2d 357. In Fordyce, a bookseller was convicted of distributing obscene books that depicts or describes someone less than sixteen years old, a Class D felony at the time. Id. at 358. The Obscenity Statute has remained unchanged since before the facts of Fordyce. See Ind. Code § 35-49-2-1. These books detailed “various sexual 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.
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. 5 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 described sexual conduct.” Appellee’s Br., p. 8. We cannot infer that sexual conduct occurred from such a slim record.
The State failed to prove by a preponderance of the evidence that Bedtelyon violated his probation when it produced no evidence that he had accessed or viewed obscene videos—that is, videos depicting or describing sexual conduct in a patently offensive manner. See Ind. Code § 35-49-2-1(2). The trial court therefore abused its discretion in finding a violation and revoking four years of Bedtelyon’s suspended sentence.
Reversed and remanded.
Najam, J., and Vaidik, J., concur.