State v. Roland

• Decision Date: 15 December 1987
• Docket Number: No. 8726SC321,8726SC321
• Citation: 362 S.E.2d 800,88 N.C.App. 19
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Donald Joseph ROLAND.

Page 800

362 S.E.2d 800

88 N.C.App. 19

STATE of North Carolina v. Donald Joseph ROLAND.

No. 8726SC321.

Court of Appeals of North Carolina.

Dec. 15, 1987.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Norma S. Harrell, Raleigh, for the State.

Lipsitz, Green, Fahringer, Roll, Schuller & James by Herbert L. Greenman, Paul J. Cambria, Jr., and Cherie L. Peterson, Buffalo, and James, McElroy & Diehl by Edward T. Hinson, Jr., and Mark T. Calloway, Charlotte, for defendant-appellant.

COZORT, Judge.

Defendant was convicted on four counts of disseminating obscenity in violation of N.C.Gen.Stat. § 14-190.1(a)(1). From a judgment sentencing him to a presumptive one-year term and fining him $3,000.00 and the costs of the action, defendant appeals.

On 1 October 1985, Officer W.R. Trull of the Mecklenburg County Police Department entered the East Independence Adult Bookstore. After examining the materials on display, he selected three magazines, all enclosed in clear plastic wrappers, and one film. Officer Trull took these items to the cash register, where defendant, the operator of the bookstore, rang up the sale. Subsequently, on 3 October 1985, defendant was arrested and charged with disseminating obscenity for the sale of these four items.

At trial, defense counsel called two psychiatrists, Dr. Charles B. Nemeroff, and Dr. Wade D. Williams, both of whom had reviewed copies of the magazines and film. Based upon their review of these materials, both doctors testified that in their opinion, the materials could have scientific and educational value, and could be useful in treating sexual dysfunctions, homosexual fears and other sexual problems.

The defense counsel also called Dr. Robert L. Stevenson, a Professor of Journalism at the University of North Carolina at Chapel Hill, who was tendered as an expert in public opinion polls and surveys. Dr. Stevenson testified that he had evaluated and reviewed a survey designed to measure the level of community acceptance or tolerance for sexually explicit materials in Mecklenburg County. He stated that the methods used in conducting the survey were consistent with acceptable polling standards and that the questions presented were adequate to measure the level of acceptability or toleration for sexually explicit materials in Mecklenburg County. Based upon his review of the survey and the subject materials, Dr. Stevenson testified that the average person in Mecklenburg County would find that the materials at issue were not patently offensive. The trial court refused, however, to allow Dr. Stevenson to testify about the actual survey results which formed the foundation of his opinion.

The jury returned a guilty verdict on all four counts of disseminating obscenity. Defendant was then sentenced to a presumptive one-year term, with an active term of sixty days and the remaining ten months suspended with defendant on special probation. Defendant was also fined $3,000 and the costs of the action. From this judgment, defendant appeals and contends that the trial court erred (1) in its charge to the jury on the test for obscenity; (2) in failing to instruct the jury to apply statewide community standards; (3) in refusing to allow Dr. Stevenson to testify as to specific questions and responses in the survey; (4) in refusing to grant his motion for a mistrial after Officer Trull testified that the materials in question were obscene; (5) in overruling his objections to the prosecutor's jury argument; (6) in denying his motion to dismiss for insufficiency of the evidence on guilty knowledge; and (7) in denying his motion to dismiss based on the unconstitutionality of N.C. Gen.Stat. § 14-190.1. For the following reasons, we find that defendant's contentions have no merit and that he received a fair trial, free of prejudicial error.

Defendant's first contention on appeal is that the trial court erred in its charge to the jury on the test for obscenity.

A three-part test for judging whether material is obscene was set out by the United States Supreme Court in 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). The court stated that:

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.

Id. at 24, 37 L.Ed.2d at 431, 93 S.Ct. at 2610 (citations omitted) (emphasis added).

"[T]he first and second prongs of the Miller test--appeal to prurient interest and patent offensiveness--are issues of fact for the jury to determine applying contemporary community standards." Pope v. Illinois, 481 U.S. ----, ----, 107 S.Ct. 1918, 1920, 95 L.Ed.2d 439, 445 (1987). The third, or "value," prong of the Miller test, however, "is not discussed in terms of contemporary, community standards." Id. According to Pope, the omission of the community standard from the third prong was a "deliberate choice" by the Miller court, because the "value" of a work does not "vary from community to community based on the degree of local acceptance it has won." Id. As to value, the court in Pope further stated that:

The proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.

Id.

In the case sub judice, the trial court instructed the jury regarding the third element of the Miller test, as follows:

The third element which the State must prove in order to have you find that this material is obscene is that the State must prove beyond a reasonable doubt that the material, considered as a whole, lacks serious literary, artistic or political or scientific value. This, of course, is not measured by the community standards but is measured by your own views of literary, artistic, political and considering the testimony concerning scientific value. (Emphasis added.)

Defendant contends, and we agree, that the trial court erred in instructing the jury to assess the materials' value based on their "own views," rather than on a reasonable man test. However, following the guidance of Pope, we hold that this error was harmless.

In Pope v. Illinois, the United States Supreme Court stated that erroneous jury instructions would not necessarily require a retrial "if it can be said beyond a reasonable doubt that the jury's verdict ... was not affected by the erroneous instruction." Id. at ----, 107 S.Ct. at 1922, 95 L.Ed.2d at 446. In that case the Supreme Court decided that "[w]hile it was error to instruct the juries to use a state community standard in considering the value question, if a reviewing court concludes that no rational juror, if properly instructed, could find value in the magazines, the convictions should stand." Id. at ----, 107 S.Ct. at 1922, 95 L.Ed.2d at 447.

Having examined the materials in this case, we conclude that no rational juror, properly instructed, could find value in them. Therefore, we hold that the trial court's error was harmless and that defendant's conviction should stand.

Defendant further argues that the trial court's erroneous instruction was particularly harmful since he had offered expert testimony as to the materials' scientific and educational value. He contends that by instructing the jury that the materials were to be judged by their own standards, the trial court directed the jury to disregard this expert testimony. However, Dr. Nemeroff and Dr. Wade testified only that the materials "could" have scientific and educational value, not that they did. In addition, the test is not whether a material has any value, but whether it has "serious" scientific, artistic, literary or political value. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. Defendant's experts here did not establish conclusively that the materials had serious scientific or educational value. Therefore, we hold that, despite Dr. Nemeroff's and Dr. Wade's expert testimony as to the material's scientific and educational value, a properly instructed jury would still find no value in them.

Defendant next argues that N.C. Gen. Stat. § 14-190.1(b) is unconstitutional by failing to require the use of a "statewide" community standard in determining what materials are obscene. He further argues that the trial court erred in failing to instruct the jury to apply such a standard. We disagree.

These exact arguments were made by the defendant in State v. Mayes, 86 N.C. App. 569, 359 S.E.2d 30 (1987). In that case, this Court held 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.' " Id. at 574, 359 S.E.2d at 34. In addition, the Court stated that:

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. quoting 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).

Defendant further argues that N.C.Gen. Stat. § 14-190.1(b) violates the equal protection clause of the North Carolina Constitution by failing to include a statewide standard....