State v. Johnston

• Decision Date: 06 August 1996
• Docket Number: No. COA95-1137,COA95-1137
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Robert Charles JOHNSTON, Defendant.

Page 25

473 S.E.2d 25

123 N.C.App. 292

STATE of North Carolina v. Robert Charles JOHNSTON, Defendant.

No. COA95-1137.

Court of Appeals of North Carolina.

Aug. 6, 1996.

Loflin & Loflin by Thomas F. Loflin III, Durham, for defendant-appellant.

LEWIS, Judge.

Defendant was charged with disseminating obscenity in violation of N.C. Gen.Stat. section 14-190.1. On 2 June 1995, he was convicted by jury verdict and sentenced to two years imprisonment. The trial court suspended this sentence and placed him under supervised probation for two years upon the conditions that he complete 100 hours of community service and not work anywhere that sells sexually explicit material. Defendant appeals.

At trial, the State called Detective Sergeant Kevin Gray of the Sanford Police Department. Detective Gray testified that he was on duty on 23 September 1993 when he entered an adult establishment called the Sanford Video and News in order to purchase "sexually explicit materials." He described the store as containing hundreds of sexually explicit magazines and videos and various "sex toys." After entering the store, Detective Gray saw defendant behind the counter by the register. After about twenty minutes, the detective selected two magazines and bought them from defendant. Detective Gray testified that the magazines were wrapped individually in clear cellophane, providing a full view of the front and back of the magazines, but preventing the pages within from being seen.

The magazines were admitted into evidence. On the front cover of State's Exhibit No. 3 is a profile view of two naked women touching each other. The front of State's Exhibit No. 2 displays frontal nudity of a female engaged in various simultaneous sexual acts with two protuberant males. On the reverse cover is a female engaged in fellatio.

The defense did not present any witnesses.

Defendant fails to argue assignments of error one and five in his brief. Therefore, they are deemed abandoned. N.C.R.App. P. 28(b)(5)(1996).

Defendant first argues that the trial court erred in refusing to instruct the jury that there must be unanimous agreement that at least one of the two magazines purchased by Detective Gray was obscene. Defendant contends this refusal violates his right to a unanimous jury verdict because the instructions given permitted a conviction when "some but not all jurors thought one magazine was obscene while other jurors, but not all, thought the other magazine was obscene."

To support his argument, defendant cites State v. Lyons, 330 N.C. 298, 412 S.E.2d 308 (1991) and State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986). In those cases, our Supreme Court held that disjunctive instructions which allow the jury to find that the defendant had committed either of two separate crimes are fatally defective because ambiguous and uncertain jury verdicts result. Lyons, 330 N.C. at 306-07, 412 S.E.2d at 314; Diaz, 317 N.C. at 554, 346 S.E.2d at 494. We do not find these cases controlling. Instead, we conclude that the present case is governed by another line of cases beginning with State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990).

In Hartness, the defendant was charged with taking indecent liberties with a child. 326 N.C. at 562, 391 S.E.2d at 178. In instructing the jury, the trial court defined an indecent liberty as "an immoral, improper or indecent touching or act by the defendant upon the child, or an inducement by the defendant of an immoral or indecent touching by the child." Id. at 563, 391 S.E.2d at 178. The defendant argued that the instruction allowed for a potentially nonunanimous jury verdict. Id. The Supreme Court, however, found no error in the instruction. Id. at 567, 391 S.E.2d at 181. Instead, it determined that even if some jurors found that the defendant committed one type of proscribed sexual conduct and others found that he committed another, "the fact remains that the jury as a whole would unanimously find that there occurred sexual conduct within the ambit of 'any immoral, improper, or indecent liberties,' " which is what the statute prohibits. Id. at 565, 391 S.E.2d at 179.

Subsequently, our Supreme Court revisited this issue in Lyons and explained the differences in the two lines of cases:

There is a critical difference between the lines of cases represented by Diaz and Hartness. The former line establishes that a disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense. The latter line establishes that if the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.

Lyons, 330 N.C. at 302-03, 412 S.E.2d at 312. While later analyzing the same issue, this Court concluded, "[T]he difference is whether the two underlying acts are separate offenses or whether they are merely alternative ways to establish a single offense." State v. Almond, 112 N.C.App. 137, 144, 435 S.E.2d 91, 96 (1993).

We hold that the present situation involves alternative methods of establishing a single offense and is therefore controlled by Hartness. G.S. § 14-190.1 does not contain separately punishable elements. It prohibits one single offense: "intentionally disseminat[ing] obscenity," G.S. § 14-190.1(a)(1993), which may be proved by evidence of any one of several acts.

The fact that the present sale involves two magazines does not transform defendant's crime into a multi-offense situation like in Diaz or Lyons. Under G.S. § 14-190.1, despite the number of obscene materials sold at one time, a defendant may not be convicted of more than one offense for each transaction. State v. Smith, 323 N.C. 439, 444, 373 S.E.2d 435, 438 (1988). We hold that the instructions provided did not violate defendant's right to a unanimous verdict.

Defendant next contends that the trial court erred in denying his motion to dismiss at the close of the State's evidence. He argues that there was insufficient evidence to convict him.

The United States Supreme Court has established a three part test to determine if material is obscene:

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419, 431 (1973) (citations omitted). Subsequent cases have clarified this standard, stating that the first two parts should be decided by a jury applying community standards, while the third is to be decided according to a reasonable person standard. Pope v. Illinois, 481 U.S. 497, 500, 107 S.Ct. 1918, 1920-21, 95 L.Ed.2d 439, 445 (1987); State v. Watson, 88 N.C.App. 624, 627, 364 S.E.2d 683, disc. review denied, 322 N.C. 485, 370 S.E.2d 235 (1988). G.S. § 14-190.1 basically codifies this test. It also requires proof of intent and guilty knowledge on the part of the defendant. State v. Mayes, 86 N.C.App. 569, 580, 359 S.E.2d 30, 37 (1987), aff'd, 323 N.C. 159, 371 S.E.2d 476 (1988), cert. denied, 488 U.S. 1009, 109 S.Ct. 792, 102 L.Ed.2d 784 (1989).

Defendant specifically argues that the State did not present evidence of Lee County community standards as they existed in 1993, the date of the alleged offense. He contends that any other reading of "contemporary" would violate the constitutional proscription against ex post facto laws. We find no merit in this argument and defendant provides no caselaw to support it.

Whether materials on the whole appeal to the prurient interest and are patently offensive are "issues of fact for the jury to determine applying contemporary community standards." Pope, 481 U.S. at 500, 107 S.Ct. at 1920, 95 L.Ed.2d at 445 (citing Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977)). "A juror is entitled to draw on his own knowledge of the views of the average person in the community ... for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a 'reasonable' person in other areas of the law." Hamling v. United States, 418 U.S. 87, 104-05, 94 S.Ct. 2887, 2901, 41 L.Ed.2d 590, 613 (1974)(emphasis added). Since no evidence of what is "reasonable" is presented to juries, we hold that evidence of what constitutes "contemporary community standards" is unnecessary. It was evident to the jury that the incident in question happened in 1993 and they were properly instructed to apply "contemporary community standards." This assignment of error is overruled.

Additionally, defendant argues that there was insufficient evidence presented that he knew the magazines were obscene. Defendant correctly acknowledges that the State must prove that he had "knowledge of both the content and character of the materials disseminated." See Watson, 88 N.C.App. at 631, 364 S.E.2d at 687. However, we believe that the State has met this burden.

In Watson, this Court made the following relevant statements:

The State presented evidence that the items purchased ... were selected from a room in the bookstore containing sexually oriented devices, as well as sexually explicit materials with illustrated covers, grouped and displayed on bookshelves which were labeled according to the viewer's sexual interest--gay sex, lesbian sex, sadism, etc. Defendant was not merely a sales clerk but the store manager, from which it could be reasonably inferred that she had knowledge of and...