{ "id": 11913086, "name": "STATE OF NORTH CAROLINA v. ROBERT CHARLES JOHNSTON, Defendant", "name_abbreviation": "State v. Johnston", "decision_date": "1996-08-06", "docket_number": "No. COA95-1137", "first_page": "292", "last_page": "305", "citations": [ { "type": "official", "cite": "123 N.C. App. 292" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "35 ALR Fed. 631", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "92 ALR3d 866", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "5 ALR3d 1158", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "opinion_index": -1 }, { "cite": "419 U.S. 974", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6412095, 6412239 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/419/0974-01", "/us/419/0974-02" ] }, { "cite": "358 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727097 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0485-01" ] }, { "cite": "351 S.E.2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "312" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 544", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359068 ], "year": 1986, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0544-01" ] }, { "cite": "102 L. Ed. 2d 548", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "488 U.S. 975", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1493537, 1495395, 1494695, 1494287, 1494199 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/488/0975-03", "/us/488/0975-05", "/us/488/0975-04", "/us/488/0975-01", "/us/488/0975-02" ] }, { "cite": "366 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "470" } ], "opinion_index": 0 }, { "cite": "322 N.C. 22", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514399 ], "year": 1988, "pin_cites": [ { "page": "40" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0022-01" ] }, { "cite": "214 S.E.2d 436", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562242, 8562311, 8562285, 8562200, 8562330 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0263-02", "/nc/287/0263-04", "/nc/287/0263-03", "/nc/287/0263-01", "/nc/287/0263-05" ] }, { "cite": "212 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "569", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "25 N.C. App. 176", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551872 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc-app/25/0176-01" ] }, { "cite": "336 S.E.2d 852", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "857" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 39", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519454 ], "year": 1985, "pin_cites": [ { "page": "48" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0039-01" ] }, { "cite": "254 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569633, 8569593, 8569497, 8569562, 8569532 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0588-05", "/nc/296/0588-04", "/nc/296/0588-01", "/nc/296/0588-03", "/nc/296/0588-02" ] }, { "cite": "249 S.E.2d 446", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "448" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 47", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550154 ], "year": 1978, "pin_cites": [ { "page": "49-50" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0047-01" ] }, { "cite": "368 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "848", "parenthetical": "stating that \"admission of evidence which is competent for a restricted purpose will not be held error in the absence of a request by the defendant for limiting instructions.\"" } ], "opinion_index": 0 }, { "cite": "322 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513686 ], "year": 1988, "pin_cites": [ { "page": "414", "parenthetical": "stating that \"admission of evidence which is competent for a restricted purpose will not be held error in the absence of a request by the defendant for limiting instructions.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0406-01" ] }, { "cite": "346 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "317 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772623 ], "year": 1986, "pin_cites": [ { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0602-01" ] }, { "cite": "368 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517480 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0469-01" ] }, { "cite": "362 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "806" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357727 ], "year": 1987, "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0019-01" ] }, { "cite": "333 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686499 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0319-01" ] }, { "cite": "321 S.E.2d 13", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "15" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 747", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524773 ], "year": 1984, "pin_cites": [ { "page": "751" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0747-01" ] }, { "cite": "229 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "174" } ], "opinion_index": 0 }, { "cite": "291 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557269 ], "year": 1976, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0037-01" ] }, { "cite": "308 S.E.2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "264" } ], "opinion_index": 0 }, { "cite": "309 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4767283 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0528-01" ] }, { "cite": "42 L. Ed. 2d 188", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1974, "opinion_index": 0 }, { "cite": "203 S.E.2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 82", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561790 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0082-01" ] }, { "cite": "197 S.E.2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1973, "pin_cites": [ { "page": "277" }, { "page": "277" } ], "opinion_index": 0 }, { "cite": "18 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550060 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "381" }, { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/nc-app/18/0377-01" ] }, { "cite": "464 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "293" } ], "opinion_index": 0 }, { "cite": "342 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796062 ], "year": 1995, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0357-01" ] }, { "cite": "354 U.S. 476", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6160660 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/us/354/0476-01" ] }, { "cite": "472 U.S. 491", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1512350 ], "weight": 8, "year": 1985, "pin_cites": [ { "page": "494" }, { "page": "399" }, { "page": "504-05" }, { "page": "406" }, { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/us/472/0491-01" ] }, { "cite": "418 U.S. 87", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171974 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "104-05", "parenthetical": "emphasis added" }, { "page": "613", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/us/418/0087-01" ] }, { "cite": "431 U.S. 291", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 2069 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/431/0291-01" ] }, { "cite": "102 L. Ed. 2d 784", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "488 U.S. 1009", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1493985, 1493990, 1494248, 1495339, 1494350, 1493905, 1493651, 1494068, 1495093, 1493205, 1494043, 1495262, 1495391 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/488/1009-10", "/us/488/1009-08", "/us/488/1009-01", "/us/488/1009-04", "/us/488/1009-07", "/us/488/1009-05", "/us/488/1009-09", "/us/488/1009-02", "/us/488/1009-12", "/us/488/1009-03", "/us/488/1009-13", "/us/488/1009-06", "/us/488/1009-11" ] }, { "cite": "371 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2563359 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0159-01" ] }, { "cite": "359 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 569", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12137526 ], "year": 1987, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0569-01" ] }, { "cite": "370 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515335, 2513168, 2514738, 2514134, 2517375 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0485-02", "/nc/322/0485-03", "/nc/322/0485-04", "/nc/322/0485-01", "/nc/322/0485-05" ] }, { "cite": "364 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1988, "pin_cites": [ { "page": "687" }, { "page": "687" }, { "page": "687" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 624", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358805 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "627" }, { "page": "631" }, { "page": "632" }, { "page": "631" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0624-01" ] }, { "cite": "481 U.S. 497", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6217454 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "500" }, { "page": "445" }, { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/us/481/0497-01" ] }, { "cite": "413 U.S. 15", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11338628 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "24", "parenthetical": "citations omitted" }, { "page": "431", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/413/0015-01" ] }, { "cite": "373 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "438" } ], "opinion_index": 0 }, { "cite": "323 N.C 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564408 ], "year": 1988, "pin_cites": [ { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0439-01" ] }, { "cite": "435 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "96" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 137", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520503 ], "year": 1993, "pin_cites": [ { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0137-01" ] }, { "cite": "391 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1990, "pin_cites": [ { "page": "178" }, { "page": "178" }, { "page": "181" }, { "page": "179" } ], "opinion_index": 0 }, { "cite": "326 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306007 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0561-01" ] }, { "cite": "346 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "494" } ], "opinion_index": 0 }, { "cite": "317 N.C 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774041 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0545-01" ] }, { "cite": "412 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "314" } ], "opinion_index": 0 }, { "cite": "330 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508946 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "306-07" }, { "page": "302-03" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0298-01" ] } ], "analysis": { "cardinality": 1219, "char_count": 30071, "ocr_confidence": 0.741, "pagerank": { "raw": 2.897376727883577e-07, "percentile": 0.8447992527749687 }, "sha256": "7c282b453b969c51aa0d7f8c7055e96f2351f8d99c28535db30d4b3ed3c63a24", "simhash": "1:1922d522740a117e", "word_count": 4879 }, "last_updated": "2023-07-14T18:05:31.519627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and MARTIN, MARK D. concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROBERT CHARLES JOHNSTON, Defendant" ], "opinions": [ { "text": "LEWIS, Judge.\nDefendant 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.\nAt 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 \u201csexually explicit materials.\u201d He described the store as containing hundreds of sexually explicit magazines and videos and various \u201csex toys.\u201d 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.\nThe magazines were admitted into evidence. On the front cover of State\u2019s Exhibit No. 3 is a profile view of two naked women touching each other. The front of State\u2019s 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.\nThe defense did not present any witnesses.\nDefendant 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).\nDefendant 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 \u201csome but not all jurors thought one magazine was obscene while other jurors, but not all, thought the other magazine was obscene.\u201d\nTo 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).\nIn 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 \u201can 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.\u201d 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, \u201cthe fact remains that the jury as a whole would unanimously find that there occurred sexual conduct within the ambit of \u2018any immoral, improper, or indecent liberties,\u2019 \u201d which is what the statute prohibits. Id. at 565, 391 S.E.2d at 179.\nSubsequently, our Supreme Court revisited this issue in Lyons and explained the differences in the two lines of cases:\nThere 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 dis-junctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.\nLyons, 330 N.C. at 302-03, 411 S.E.2d at 312. While later analyzing the same issue, this Court concluded, \u201c[T]he difference is whether the two underlying acts are separate offenses or whether they are merely alternative ways to establish a single offense.\u201d State v. Almond, 112 N.C. App. 137, 144, 435 S.E.2d 91, 96 (1993).\nWe 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: \u201cintentionally disseminating] obscenity,\u201d G.S. \u00a7 14-190.1(a) (1993), which may be proved by evidence of any one of several acts.\nThe fact that the present sale involves two magazines does not transform defendant\u2019s 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\u2019s right to a unanimous verdict.\nDefendant next contends that the trial court erred in denying his motion to dismiss at the close of the State\u2019s evidence. He argues that there was insufficient evidence to convict him.\nThe United States Supreme Court has established a three part test to determine if material is obscene:\nThe basic guidelines for the trier of fact must be: (a) whether \u201cthe average person, applying contemporary community standards\u201d 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.\nMiller v. California, 413 U.S. 15, 24, 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, 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, 102 L. Ed. 2d 784 (1989).\nDefendant 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 \u201ccontemporary\u201d 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.\nWhether materials on the whole appeal to the prurient interest and are patently offensive are \u201cissues of fact for the jury to determine applying contemporary community standards.\u201d Pope, 481 U.S. at 500, 95 L. Ed. 2d at 445 (citing Smith v. United States, 431 U.S. 291, 52 L. Ed. 2d. 324 (1977)). \u201cA 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 \u2018reasonable\u2019 person in other areas of the law.\u201d Hamling v. United States, 418 U.S. 87, 104-05, 41 L. Ed. 2d 590, 613 (1974) (emphasis added). Since no evidence of what is \u201creasonable\u201d is presented to juries, we hold that evidence of what constitutes \u201ccontemporary community standards\u201d is unnecessary. It was evident to the jury that the incident in question happened in 1993 and they were properly instructed to apply \u201ccontemporary community standards.\u201d This assignment of error is overruled.\nAdditionally, 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 \u201cknowledge of both the content and character of the materials disseminated.\u201d See Watson, 88 N.C. App. at 631, 364 S.E.2d at 687. However, we believe that the State has met this burden.\nIn Watson, this Court made the following relevant statements:\nThe 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\u2019s sexual interest \u2014 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 authority over the store\u2019s inventory and its arrangement. Moreover, the magazine cover and the box containing the film were captioned and graphically illustrated with photographs of males and females engaged in oral, vaginal, and group sex. This, in our opinion, may reasonably be considered some indication of the materials\u2019 contents.\nWe hold that the foregoing, when viewed in the light most favorable to the State, constitutes sufficient circumstantial evidence to allow a reasonable inference that defendant knew the character and content of the materials she disseminated.\nId.\nAfter reviewing the record, it is evident that the circumstances in Watson are almost identical to the case at hand. The only substantial difference is that defendant was not also the manager of the store. However, it is clear that this circumstance was not determinative in Watson, but merely one factor which the court considered. Therefore, we hold that even without it, there was sufficient circumstantial evidence that defendant knew the character and the content of the materials he disseminated.\nDefendant next assigns error to several of the trial court\u2019s instructions to the jury. First, he contends that the trial court\u2019s definition of \u201cprurient\u201d was error. The court instructed: \u201cA prurient interest in sex is an unhealthy, abnormal, lascivious, shameful or morbid sexual interest.\u201d Defendant argues that in Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 86 L. Ed. 2d 394 (1985), the United States Supreme Court prohibited states from defining \u201cprurient interest\u201d in terms of arousing lust. According to defendant, since \u201clascivious\u201d means \u201clustful,\u201d the instruction is error. We find defendant\u2019s reading of Brockett flawed.\nThe Washington statute at issue in Brockett defined \u201cprurient\u201d as \u201c \u2018that which incites lasciviousness or lust.\u2019 \u201d Brockett, 472 U.S. at 494, 86 L. Ed. 2d at 399. The Supreme Court invalidated the statute only in so far as \u201clust\u201d was taken to include a normal interest in sex. Id. at 504-05, 86 L. Ed. 2d at 406. However, the Court did recognize that \u201cprurience may be constitutionally defined for the purposes of identifying obscenity as that which appeals to a shameful or morbid interest in sex.\u201d Id. at 504, 86 L. Ed. 2d at 406 (citing Roth v. United States, 354 U.S. 476, 1 L. Ed. 2d 1498 (1957)).\nTherefore, contrary to defendant\u2019s argument, the Supreme Court did not proscribe the use of \u201clust\u201d in obscenity definitions. Rather, it disallowed any definition which could be read to include a normal, healthy sexual interest. Clearly, the above instruction which also includes the terms \u201cunhealthy,\u201d \u201cabnormal,\u201d \u201cshameful\u201d and \u201cmorbid\u201d could not be understood by any jury to include a normal interest in sex. Defendant\u2019s assignment of error is overruled.\nSecond, defendant argues that the trial court provided the jury with the incorrect standard for determining whether the materials lack serious value. However, during closing arguments, defendant\u2019s attorney admitted to the jury that the magazines in question lacked serious literary, artistic, political or scientific value and conceded that issue. On appeal, defendant cannot argue a matter he conceded at trial.\nThird, defendant contends that it was error for the trial court to instruct the jury to apply the \u201ccurrent standards here in your community.\u201d Even if this instruction was error, we find it harmless. The alleged sale took place on 23 September 1993. The trial occurred 30 May through 2 June 1995. Community standards could not have changed so drastically during that period of time that the jury would have reached a different verdict had it been instructed to apply standards at the time of the incident.\nDefendant also assigns error to two portions of the trial court\u2019s charge to which he did not object at trial and alleges plain error. \u201cIn order to rise to the level of plain error, the error in the trial court\u2019s instructions must be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected.\u201d State v. King, 342 N.C. 357, 365, 464 S.E.2d 288, 293 (1995). After reviewing the record, we conclude that even if the trial court\u2019s instructions were error, neither rises to the level of plain error. This assignment of error is overruled.\nFinally, defendant assigns error to the trial court\u2019s instruction that the jury could infer that the defendant had knowledge of the nature and content of the magazines based on circumstantial evidence. He argues that the State was not entitled to such an instruction because it has the burden to prove defendant\u2019s knowledge. In making his argument, defendant ignores longstanding precedent ruling that circumstantial evidence is sufficient to prove a defendant\u2019s knowledge in cases involving the dissemination of obscenity. E.g., Watson, 88 N.C. App. at 632, 364 S.E.2d at 687; State v. Horn, 18 N.C. App. 377, 381, 197 S.E.2d 274, 277 (1973), aff'd, 285 N.C. 82, 203 S.E.2d 36, cert. denied, Bryant v. North Carolina, 419 U.S. 974, 42 L. Ed. 2d 188 (1974).\nDefendant also cites State v. Bates, 309 N.C. 528, 308 S.E.2d 258 (1983), in support of his proposition that the instruction on circumstantial evidence was improper. He apparently argues that since the State presented direct evidence of defendant\u2019s knowledge, an instruction on circumstantial was improper.\nIn Bates, the defendant wanted a \u201cjury instruction as to the effect of circumstantial evidence when no direct evidence is presented.\u201d Id. at 537, 308 S.E.2d at 264. The Court held that since there was direct evidence presented, defendant\u2019s requested instruction was not appropriate. Id. Despite the clarity of that Court\u2019s holding, defendant misinterprets it and provides the following statement, citing Bates: \u201cWhere the evidence elicited at trial includes direct evidence bearing on any issue for the jury\u2019s determination, a circumstantial evidence instruction is erroneous.\u201d This is clearly not the holding of Bates. Accordingly, we find no merit in defendant\u2019s argument.\nDefendant next assigns error to the trial court\u2019s refusal to give his written request for jury instructions as asked. However, the trial court is not required to give an instruction exactly as requested. State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163, 174 (1976). It is sufficient that the court substantially gives the instruction if the request is legally correct and supported by the evidence. See id.\nIn this case, we hold that the trial court gave, in substance, those requested instructions which are correct in law. This assignment of error is overruled.\nThe defendant next argues that the trial court erred in overruling his objections to portions of the State\u2019s closing argument. At trial, defendant objected to the following statements made by the prosecutor:\nIf any activity is illegal, it doesn\u2019t make a difference that there are two adults participating in the activity. It\u2019s still illegal. Think about it. Does it really make a difference whether a person sells cocaine to an adult or a child?\nAgain, the Court will tell you it is an unhealthy, abnormal, lascivious, shameful or morbid interest. What does that mean? Well, I submit to you perhaps you can think of it this way: Does this material pass the mama test? By that I mean, how would you feel if your mama saw you looking at this?\nThe defense might argue, \u2018My poor client\u2019s just a clerk. Why don\u2019t they go after the real bad guys, the managers and the owners?\u2019 Well, folks, he made the conscious decision to work there knowing exactly what he was doing, and that\u2019s why he\u2019s arguing you shouldn\u2019t go after the street level drug dealers. You ought to only go after the big guys.\nDefendant argues that the statements made by the prosecutor alter the definition of \u201cprurient\u201d and compared him to a drug dealer. He contends that such prejudicial remarks entitle him to a new trial.\n\u201cThe scope of the arguments to the jury is in the sound discretion of the trial judge and his ruling will not be disturbed except upon a finding of prejudicial error.\u201d State v. Spears, 70 N.C. App. 747, 751, 321 S.E.2d 13, 15 (1984), aff'd, 314 N.C. 319, 333 S.E.2d 242 (1985). In determining whether prejudicial error occurred, the prosecutor\u2019s argument must be viewed as a whole. State v. Roland, 88 N.C. App. 19, 28, 362 S.E.2d 800, 806 (1987), aff'd, 322 N.C. 469, 368 S.E.2d 385 (1988).\nAfter reviewing the State\u2019s closing argument as a whole, we find no error prejudicial to defendant. It is clear that the prosecutor did not equate defendant with drug dealing, nor did he expand the definition of \u201cprurient.\u201d Rather, he provided proper statements of the law, but used analogies, which the jurors were free to reject or ignore, to illustrate his message. This assignment of error is overruled.\nDefendant also assigns error to the trial court\u2019s refusing to excuse a juror for cause. N.C. Gen. Stat. section 15A-1214(h) provides:\nIn order for a defendant to seek reversal of the case on appeal on the ground that the judge refused to allow a challenge made for cause, he must have:\n(1) Exhausted the peremptory challenges available to him;\n(2) Renewed his challenge as provided in subsection (i) of this section; and\n(3) Had his renewal motion denied as to the juror in question.\nG.S. \u00a7 15A-1214(h) (1988).\nAfter reviewing the record, it is evident that defendant exhausted his peremptory challenges, but failed to renew his challenge for cause. By failing to comply with the procedure outlined in G.S. 15A-1214(h), defendant failed to preserve the alleged error for appellate review. See State v. Sanders, 317 N.C. 602, 607, 346 S.E.2d 451, 455 (1986). While it is true that defendant asked for additional peremptory challenges, that action is insufficient to preserve the issue since the statute makes renewal of the challenge mandatory. See id. at 608, 346 S.E.2d at 456. This assignment of error is overruled.\nDefendant also argues that the trial court erred in allowing Detective Gray to describe the various sex toys available for sale and movies available for viewing at the Sanford Video and News store. Defendant argues that the testimony is irrelevant. The trial court allowed the testimony because it went to the issue of defendant\u2019s knowledge; the judge offered to give a special instruction to the jury but defendant declined.\nEvidence is relevant if it has \u201cany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C.R. Evid. 401 (1992). The evidence at issue is clearly relevant to the instant proceeding since the prosecution must prove defendant\u2019s knowledge of the character and content of the magazines. See Watson, 88 N.C. App. at 631, 364 S.E.2d at 687. This knowledge is often proved solely by circumstantial evidence. E.g. Horn, 18 N.C. App. at 381, 197 S.E.2d at 277. Therefore, this testimony was relevant to the issue of defendant\u2019s knowledge, and because defendant failed to request a limiting instruction, its admission cannot be held error. See State v. Jones, 322 N.C. 406, 414, 368 S.E.2d 844, 848 (1988) (stating that \u201cadmission of evidence which is competent for a restricted purpose will not be held error in the absence of a request by the defendant for limiting instructions.\u201d)\nDefendant argues that even if the content of the movies available for viewing at the Sanford Video and News was relevant, Detective Gray\u2019s testimony should have been excluded based on the best evidence rule. We disagree. The best evidence rule provides: \u201cTo prove the content of a . . . recording . . ., the original... is required . . . .\u201d N.C.R. Evid. 1002 (1992). \u201cThe rule does not apply... when [the] contents are not in question or when they are only \u201ccollateral\u201d to the issues in the case.\u2019 \u201d State v. Mills, 39 N.C. App. 47, 49-50, 249 S.E.2d 446, 448 (1978), disc. review denied, 296 N.C. 588, 254 S.E.2d 33 (1979).\nClearly, the content of the movies available at the store is not at issue in this case. Rather, it is a collateral matter tending to show defendant\u2019s knowledge circumstantially. The main issue in this case is the content of the magazines sold by defendant, which were admitted into evidence. Additionally, even if the trial court erred in allowing Detective Gray to testify in a single sentence as to the general content of the movies, we conclude that it would not be harmful error. There was a great deal of other evidence to prove defendant\u2019s knowledge. Therefore, this assignment of error based on the best evidence rule has no merit.\nDefendant next contends, and the State agrees, that the trial court erred in sentencing him for a Class I felony rather than a Class J felony. Therefore, we remand this matter for resentencing.\nDefendant further contends that it was unconstitutional for the trial court to impose as a condition upon his probation that he refrain from working in any \u201cretail establishment that sells sexually explicit material.\u201d Under N.C. Gen. Stat. section 15A-1343(bl), the trial court may impose any conditions on probation that it determines \u201cto be reasonably related to [defendant\u2019s] rehabilitation.\u201d G.S. \u00a7 15A-1343(bl)(10) (1995). The trial court is accorded \u201csubstantial discretion\u201d in imposing conditions under this section. State v. Harrington, 78 N.C. App. 39, 48, 336 S.E.2d 852, 857 (1985).\nWe are persuaded by the reasoning in State v. Simpson, 25 N.C. App. 176, 212 S.E.2d 566, cert. denied, 287 N.C. 263, 214 S.E.2d 436 (1975), that the condition imposed on defendant is not unconstitutional. In upholding a condition which limited defendant\u2019s employment in the construction field that Court stated:\nIt is obvious from the condition upon which defendant\u2019s prison sentence was suspended and the nature of the crime involved that the trial judge considered as an important aspect of the defendant\u2019s rehabilitation that the defendant not find himself in a position wherein he would more than likely repeat this same offense. . . . This condition was clearly directly related to and grew out of the offense for which the defendant was convicted and was consistent with proper punishment for the crime.\nSimpson, 25 N.C. App. at 180, 212 S.E.2d at 569 (citations omitted). Likewise, since the condition imposed upon defendant was clearly related to and grew out of the offense of disseminating obscenity, we rule that it is not unconstitutional. This argument has no merit.\nFinally, defendant argues that G.S. 14-490.1 is unconstitutional. This statute has previously been held constitutional, see State v. Anderson, 322 N.C. 22, 40, 366 S.E.2d 459, 470, cert. denied, 488 U.S. 975, 102 L. Ed. 2d 548 (1988); Cinema I Video v. Thornburg, 83 N.C. App. 544, 554, 351 S.E.2d 305, 312 (1986), aff\u2019d, 320 N.C. 485, 358 S.E.2d 383 (1987), and defendant\u2019s argument must therefore fail.\nNo error in trial; remanded for resentencing.\nJudges JOHNSON and MARTIN, MARK D. concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Grayson G. Kelley and Associate Attorney General Melanie L. Vtipil, for the State.", "Loflin & Loflin, by Thomas F. Loflin III, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROBERT CHARLES JOHNSTON, Defendant\nNo. COA95-1137\n(Filed 6 August 1996)\n1. Obscenity, Pornography, Indecency, or Profanity \u00a7 16 (NCI4th)\u2014 jury instructions on two magazines \u2014 right to unanimous jury verdict not abridged\nIn a prosecution of defendant for disseminating obscene material, the trial court did not err in refusing to instruct the jury that there must be unanimous agreement that at least one of the two magazines purchased by a detective was obscene, and this refusal did not violate defendant\u2019s right to a unanimous jury verdict, since the situation in this case involved alternative methods of establishing a single offense rather than two separate offenses.\nAm Jur 2d, Lewdness, Indecency and Obscenity \u00a7 39.\n2. Obscenity, Pornography, Indecency, or Profanity \u00a7 13 (NCI4th)\u2014 contemporary community standards \u2014 evidence unnecessary\nIn a prosecution of defendant for disseminating obscene material, evidence of what constituted \u201ccontemporary community standards\u201d was unnecessary.\nAm Jur 2d, Lewdness, Indecency and Obscenity \u00a7 34.\nModern concept of obscenity. 5 ALR3d 1158.\n3. Obscenity, Pornography, Indecency, or Profanity \u00a7 14 (NCI4th)\u2014 defendant\u2019s knowledge of content of materials disseminated \u2014 sufficiency of evidence\nIn a prosecution for dissemination of obscene material, there was sufficient circumstantial evidence that defendant knew the character and the content of the materials to be distributed.\nAm Jur 2d, Lewdness, Indecency and Obscenity \u00a7 34.\nModern concept of obscenity. 5 ALR3d 1158.\n4. Obscenity, Pornography, Indecency, or Profanity \u00a7 18 (NCI4th)\u2014 dissemination of obscenity \u2014 definition of prurient \u2014 jury instruction proper\nThe trial court\u2019s definition of a prurient interest in sex as \u201can unhealthy, abnormal, lascivious, shameful or morbid sexual interest\u201d could not be understood by the jury to include a normal interest in sex and was therefore appropriate in this prosecution for dissemination of obscene magazines; furthermore, the trial court\u2019s instruction that the jury should apply the \u201ccurrent standards\u201d in the community rather than the standards at the time of the incident was harmless error, and there was no error in the court\u2019s instructioh that the jury could infer that defendant had knowledge of the nature and content of the magazines based on circumstantial evidence.\nAm Jur 2d, Lewdness, Indecency and Obscenity \u00a7 39.\nPropriety of, or prejudicial effect of omitting or of giving, instruction to jury, in prosecution for rape or other sexual offense, as to ease of making or difficulty of defending against such a charge. 92 ALR3d 866.\n5. Obscenity, Pornography, Indecency, or Profanity \u00a7 15 (NCI4th)\u2014 closing argument \u2014 propriety\nThe prosecutor\u2019s closing argument in a prosecution of a store clerk for disseminating obscenity asking jurors to consider how they would feel if their mothers saw them looking at allegedly obscene magazines and suggesting that any defense that the State should go after the store owners rather than the clerk was like arguing against going after street-level drug dealers did not expand the definition of \u201cprurient\u201d or equate defendant with a drug dealer. Rather, the prosecutor merely used analogies which the jurors were free to reject or ignore in order to illustrate his message.\nAm Jur 2d, Lewdness, Indecency and Obscenity \u00a7\u00a7 31-40.\n6. Jury \u00a7 187 (NCI4th)\u2014 refusal to excuse juror for cause\u2014 defendant\u2019s failure to follow procedure \u2014 question not preserved for appellate review\nDefendant failed to preserve for appellate review the trial court\u2019s alleged error in refusing to excuse a juror for cause, since defendant failed to renew his challenge for cause after exhausting his peremptory challenges and thus failed to comply with the procedure outlined in N.C.G.S. \u00a7 15A-1214(h).\nAm Jur 2d, Jury \u00a7 231.\n7. Evidence and Witnesses \u00a7 543 (NCI4th)\u2014 dissemination of obscene magazines \u2014 sex toys and movies \u2014 relevancy\u2014best evidence rule not violated\nA detective\u2019s testimony describing various sex toys available for sale in a store and movies available for viewing at the store was relevant in a prosecution for disseminating obscene magazines to show defendant\u2019s knowledge of the character and content of the magazines. Furthermore, this testimony did not violate the best evidence rule because the content of the available movies was not at issue in the case.\nAm Jur 2d, Lewdness, Indecency and Obscenity \u00a7\u00a7 34-40.\n8. Criminal Law \u00a7 1490 (NCI4th)\u2014 condition of probation\u2014 propriety\nIn a prosecution of defendant for dissemination of obscene material, it was not unconstitutional for the trial court to impose as a condition of his probation, that he refrain from working in any retail establishment which sold sexually explicit material, since it was clearly related to and grew out of the offense charged. N.C.G.S. \u00a7 15A-1343(bl)(10).\nAm Jur 2d, Criminal Law \u00a7\u00a7 570-576.\nPropriety, as condition of probation granted pursuant to 18 USCS sec. 3651 or similar predecessor statute, of requiring defendant to give up profession or occupation. 35 ALR Fed. 631.\nAppeal by defendant from judgment entered 2 June 1995 by Judge Knox V. Jenkins in Lee County Superior Court. Heard in the Court of Appeals 16 May 1996.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Grayson G. Kelley and Associate Attorney General Melanie L. Vtipil, for the State.\nLoflin & Loflin, by Thomas F. Loflin III, for defendant-appellant." }, "file_name": "0292-01", "first_page_order": 326, "last_page_order": 339 }