State v. Mayes

• Decision Date: 18 August 1987
• Docket Number: No. 8627SC1346,8627SC1346
• Citation: 359 S.E.2d 30,86 N.C.App. 569
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, v. Jeff MAYES.

Page 30

359 S.E.2d 30

86 N.C.App. 569

STATE of North Carolina, v. Jeff MAYES.

No. 8627SC1346.

Court of Appeals of North Carolina.

Aug. 18, 1987.

Atty. Gen. Lacy H. Thornburg, by Asst. Atty. Gen. Steven F. Bryant, Raleigh, for the State.

Lipsitz, Green, Fahringer, Roll, Schuller & James, Charlotte by Stanley J. Sliwa and Herbert L. Greenman, Buffalo, and James, McElroy & Diehl, P.A. by Edward T. Hinson, Jr., Charlotte, for defendant-appellant.

MARTIN, Judge.

Defendant contends that his convictions must be set aside for several reasons. First of all, he contends that his conviction is constitutionally invalid because the jury was not required to apply a statewide contemporary community standard in determining whether the materials at issue in this case were obscene. He also assigns error to the exclusion of: (1) evidence as to the availability of similar materials in the community; (2) evidence as to the results of a public opinion survey; and (3) expert opinion testimony upon the issue of the obscenity of the materials. In addition, he challenges the sufficiency of the State's evidence, assigns error to portions of the trial court's instructions to the jury, and contests the constitutionality of G.S. 14-190.1 on a number of grounds. For the following reasons, we hold that defendant received a fair trial, free of prejudicial error.

We begin our analysis by stating that which is firmly established: obscene material receives no protection under the First Amendment to the United States Constitution. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, reh'g denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973); Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, reh'g denied, 355 U.S. 852, 78 S.Ct. 8, 2 L.Ed.2d 60 (1957). "It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031, 1035 (1942). States, therefore, are free to enact criminal statutes prohibiting the dissemination of obscene material, provided that specified guidelines are followed so that protected speech is not also prohibited. See Miller, supra.

By his first assignment of error, defendant contends that G.S. 14-190.1 is constitutionally infirm because it does not require the jury to apply statewide community standards in determining whether materials are obscene. He also contends that his conviction is invalid because the trial court failed to instruct the jury to apply a statewide standard or to define for the jury the relevant community whose standards were to be applied. We reject his contentions.

G.S. 14-190.1(b) provides that material is obscene if:

(1) The material depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (c) of this section; and

(2) The average person applying contemporary community standards relating to the depiction or description of sexual matters would find that the material taken as a whole appeals to the prurient interest in sex; and

(3) The material lacks serious literary, artistic, political, or scientific value; and

(4) The material as used is not protected or privileged under the Constitution of the United States or the Constitution of North Carolina.

G.S. 14-190.1(c) defines sexual conduct as:

(1) Vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted; or

(2) Masturbation, excretory functions, or lewd exhibition of uncovered genitals; or

(3) An act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a nude person or a person clad in undergarments or in revealing or bizarre costume.

The language used in this statute closely follows the three-pronged test set forth by the United States Supreme Court in Miller v. California, supra:

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, [citations omitted]; (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.

Id., 413 U.S. at 24, 93 S.Ct. at 2615, 37 L.Ed.2d at 431. As recently as the present term, the Supreme Court has reemphasized that contemporary community standards are to be applied to the first two prongs, while the third prong is to be examined according to the reasonable person standard. See Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987).

In Miller, the court held that the use of national standards to determine whether material is obscene is not a constitutional requirement, and that states could properly employ statewide contemporary community standards. Miller, however, does not require the use of statewide standards. In Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), the trial court instructed the jury to apply "community standards" without defining the geographical limits of "community." The Supreme Court approved the instructions, stating that:

Miller held that it was constitutionally permissible to permit juries to rely on the understanding of the community from which they came as to contemporary community standards, and the States have considerable latitude in framing statutes under this element of the Miller decision. A State may choose to define an obscenity offense in terms of "contemporary community standards" as defined in Miller without further specification ... or it may choose to define the standards in more precise geographic terms, as was done by California in Miller.

Id. at 157, 94 S.Ct. at 2753, 41 L.Ed.2d at 648. See also Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, reh'g denied, 419 U.S. 885, 95 S.Ct. 157, 42 L.Ed.2d 129 (1974). Our General Assembly chose not to define "community" in precise geographic terms when it enacted G.S. 14-190.1. In the absence of a precise statutory specification of "community," the trial judge properly declined to judicially restrict or expand that term, permitting the jurors to apply the standards of the community from which they came in much the same manner as they would determine "the propensities of a 'reasonable' person in other areas of the law." Id. at 104-105, 94 S.Ct. at 2901, 41 L.Ed. at 613. Accordingly, we hold that neither G.S. 14-190.1 nor the judge's instructions in this case contravene the Constitution of the United States by failing to specify what is meant by "community."

Defendant argues, however, that the use of a statewide standard is required by Article I, § 19 of the Constitution of North Carolina, which provides in part that "[n]o person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges ... or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied equal protection of the laws...." Defendant argues that use of any standard smaller than a statewide one is impermissible because such a standard would make it illegal in some parts of this State to do that which is legal in other parts of the State.

G.S. 14-190.1 makes it a criminal offense in North Carolina to disseminate obscenity. This is so throughout the State. It is true that the application of standards of a community smaller than statewide may result in the possibility that material considered obscene in some areas of the State will not be considered obscene in other areas. This possibility does not, however, render the statute unconstitutional. In Miller, supra, the Supreme Court held that the federal Constitution does not require materials to be judged in the light of hypothetical national standards, saying that it is unrealistic and not constitutionally required that "the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City." Id., 413 U.S. at 32, 93 S.Ct. at 2619, 37 L.Ed.2d at 435. In Hamling, supra, the Court held that a juror sitting in obscenity cases is permitted "to draw on knowledge of the community or vicinage from which he comes in deciding what conclusion 'the average person, applying contemporary community standards' would reach in a given case." Id., 418 U.S. at 105, 94 S.Ct. at 2901, 41 L.Ed.2d at 613.

The fact that distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional because of the failure of application of uniform national standards of obscenity.

Id. at 106, 94 S.Ct. at 2902, 41 L.Ed.2d at 614. In Jenkins, supra, the Court held that in state obscenity cases, jurors need not be instructed "to apply the standards of a hypothetical statewide community." Id., 418 U.S. at 157, 94 S.Ct. at 2753, 41 L.Ed.2d at 648.

We believe that the reasoning of the United States Supreme Court is applicable as well to the "equal protection of the laws" clause of our State Constitution. Ours is a large and diverse State, and it is unrealistic to expect to find that the same standards exist throughout the State or that the residents of one part of the State would have knowledge of the community standards held in another area. Thus we hold that permitting jurors to apply the standards of the community from which they come, rather than requiring the application of a uniform statewide standard of obscenity, does not violate the equal protection clause of the North Carolina Constitution.

Defendant next argues that the trial court erred by...