{ "id": 8357727, "name": "STATE OF NORTH CAROLINA v. DONALD JOSEPH ROLAND", "name_abbreviation": "State v. Roland", "decision_date": "1987-12-15", "docket_number": "No. 8726SC321", "first_page": "19", "last_page": "31", "citations": [ { "type": "official", "cite": "88 N.C. App. 19" } ], "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": "156 S.E. 2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "682" } ], "opinion_index": 0 }, { "cite": "271 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564082 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0379-01" ] }, { "cite": "358 S.E. 2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727097 ], "weight": 2, "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", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "83 N.C. App. 544", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359068 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/83/0544-01" ] }, { "cite": "325 S.E. 2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757749 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0647-01" ] }, { "cite": "346 S.E. 2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "645" } ], "opinion_index": 0 }, { "cite": "317 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4772035 ], "year": 1986, "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0590-01" ] }, { "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": "335 S.E. 2d 86", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "88" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 418", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523024 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/77/0418-01" ] }, { "cite": "337 S.E. 2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "78 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522281 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/78/0493-01" ] }, { "cite": "95 S.Ct. 157", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1974, "opinion_index": 0 }, { "cite": "42 L.Ed. 2d 129", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1974, "opinion_index": 0 }, { "cite": "419 U.S. 885", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6375050, 6374733, 6375484, 6374909, 6375230 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/419/0885-03", "/us/419/0885-01", "/us/419/0885-05", "/us/419/0885-02", "/us/419/0885-04" ] }, { "cite": "418 U.S. 87", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171974 ], "weight": 7, "year": 1974, "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/us/418/0087-01" ] }, { "cite": "359 S.E. 2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1987, "pin_cites": [ { "page": "34" }, { "page": "35" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 569", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12137526 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/86/0569-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14490.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" }, { "page": "575" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "95 L.Ed. 2d 439", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6217454 ], "weight": 11, "year": 1987, "pin_cites": [ { "page": "445" }, { "page": "1920" }, { "page": "446" }, { "page": "1922" }, { "page": "447" }, { "page": "1922" } ], "opinion_index": 0, "case_paths": [ "/us/481/0497-01" ] }, { "cite": "94 S.Ct. 26", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1973, "opinion_index": 0 }, { "cite": "38 L.Ed. 2d 128", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1973, "opinion_index": 0 }, { "cite": "414 U.S. 881", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11766680, 11766763, 11766624 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/414/0881-02", "/us/414/0881-03", "/us/414/0881-01" ] }, { "cite": "413 U.S. 15", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11338628 ], "weight": 8, "year": 1973, "pin_cites": [ { "page": "431" }, { "page": "2610", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/413/0015-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-190.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-190", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "95 L.Ed. 2d 439", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6217454 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "447", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/us/481/0497-01" ] }, { "cite": "413 U.S. 15", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11338628 ], "weight": 3, "year": 1973, "opinion_index": 1, "case_paths": [ "/us/413/0015-01" ] } ], "analysis": { "cardinality": 992, "char_count": 28830, "ocr_confidence": 0.807, "pagerank": { "raw": 2.6758482859541997e-07, "percentile": 0.8262203703768057 }, "sha256": "0c8aee40d4bc1f04bee5436b35cd0bb232768b3374d62ece823a95dded457a07", "simhash": "1:0368dc0c234d54c5", "word_count": 4702 }, "last_updated": "2023-07-14T22:20:42.285314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Phillips concurs.", "Judge Greene dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. DONALD JOSEPH ROLAND" ], "opinions": [ { "text": "COZORT, Judge.\nDefendant was convicted on four counts of disseminating obscenity in violation of N.C. Gen. Stat. \u00a7 14-190(a)(l). 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.\nOn 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.\nAt 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.\nThe 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 Mecklen-burg 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.\nThe 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\u2019s 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. \u00a7 14-190.1. For the following reasons, we find that defendant\u2019s contentions have no merit and that he received a fair trial, free of prejudicial error.\nDefendant\u2019s first contention on appeal is that the trial court erred in its charge to the jury on the test for obscenity.\nA 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, 37 L.Ed. 2d 419, 93 S.Ct. 2607, reh\u2019g denied, 414 U.S. 881, 38 L.Ed. 2d 128, 94 S.Ct. 26 (1973). The court stated that:\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.\nId. at 24, 37 L.Ed. 2d at 431, 93 S.Ct. at 2610 (citations omitted) (emphasis added).\n\u201c[T]he first and second prongs of the Miller test \u2014 appeal to prurient interest and patent offensiveness \u2014 are issues of fact for the jury to determine applying contemporary community standards.\u201d Pope v. Illinois, 481 U.S. ---, 95 L.Ed. 2d 439, 445, 107 S.Ct. 1918, 1920 (1987). The third, or \u201cvalue,\u201d prong of the Miller test, however, \u201cis not discussed in terms of contemporary, community standards.\u201d Id. According to Pope, the omission of the community standard from the third prong was a \u201cdeliberate choice\u201d by the Miller court, because the \u201cvalue\u201d of a work does not \u201cvary from community to community based on the degree of local acceptance it has won.\u201d Id. As to value, the court in Pope further stated that:\nThe 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.\nId.\nIn the case sub judice, the trial court instructed the jury regarding the third element of the Miller test, as follows:\nThe 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.)\nDefendant contends, and we agree, that the trial court erred in instructing the jury to assess the materials\u2019 value based on their \u201cown views,\u201d rather than on a reasonable man test. However, following the guidance of Pope, we hold that this error was harmless.\nIn Pope v. Illinois, the United States Supreme Court stated that erroneous jury instructions would not necessarily require a retrial \u201cif it can be said beyond a reasonable doubt that the jury\u2019s verdict . . . was not affected by the erroneous instruction.\u201d Id. at \u2014, 95 L.Ed. 2d at 446, 107 S.Ct. at 1922. In that case the Supreme Court decided that \u201c[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.\u201d Id. at \u2014, 95 L.Ed. 2d at 447, 107 S.Ct. at 1922.\nHaving 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\u2019s error was harmless and that defendant\u2019s conviction should stand.\nDefendant further argues that the trial court\u2019s erroneous instruction was particularly harmful since he had offered expert testimony as to the materials\u2019 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 \u201ccould\u201d 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 \u201cserious\u201d scientific, artistic, literary or political value. Miller v. California, 413 U.S. 15, 37 L.Ed. 2d 419, 93 S.Ct. 2607. Defendant\u2019s experts here did not establish conclusively that the materials had serious scientific or educational value. Therefore, we hold that, despite Dr. Nemeroffs and Dr. Wade\u2019s expert testimony as to the material\u2019s scientific and educational value, a properly instructed jury would still find no value in them.\nDefendant next argues that N.C. Gen. Stat. \u00a7 14490.1(b) is unconstitutional by failing to require the use of a \u201cstatewide\u201d 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.\nThese 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 \u201cneither G.S. \u00a7 14-190.1 nor the judge\u2019s instructions in this case contravene the Constitution of the United States by failing to specify what is meant by \u2018community.\u2019 \u201d Id. at 574, 359 S.E. 2d at 34. In addition, the Court stated that:\nOur General Assembly chose not to define \u201ccommunity\u201d in precise geographic terms when it enacted G.S. 14-190.1. In the absence of a precise statutory specification of \u201ccommunity,\u201d 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 \u201cthe propensities of a \u2018reasonable\u2019 person in other areas of the law.\u201d\nId., quoting Hamling v. United States, 418 U.S. 87, 41 L.Ed. 2d 590, 94 S.Ct. 2887, reh\u2019g denied, 419 U.S. 885, 42 L.Ed. 2d 129, 95 S.Ct. 157 (1974).\nDefendant further argues that N.C. Gen. Stat. \u00a7 14490.1(b) violates the equal protection clause of the North Carolina Constitution by failing to include a statewide standard. This argument was also addressed in Mayes, where this Court stated:\nOurs 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.\nId. at 575, 359 S.E. 2d at 35. Accordingly, we find that defendant\u2019s arguments on these issues are without merit.\nNext, defendant argues that the trial court erred in refusing to allow Dr. Stevenson to testify as to the specific questions and responses from the survey he evaluated. We disagree.\n\u201c[T]he trial court retains \u2018wide discretion in its determination to admit and exclude evidence, and this is particularly true in the case of expert testimony.\u2019 \u201d Id., quoting Hamling v. United States at 108, 41 L.Ed. 2d at 615, 94 S.Ct. at 2903. Expert testimony is properly excluded when it lacks sufficient probative value and would serve only to confuse the jury. See State v. Knox, 78 N.C. App. 493, 337 S.E. 2d 154 (1985).\nIn the case at bar the trial court properly disallowed Dr. Stevenson\u2019s testimony concerning the questions and responses from the survey. This testimony lacked any probative value as to whether the subject materials were either patently offensive or appealed to the prurient interest. The questions dealt primarily with public tolerance of obscene materials in general, rather than with acceptance of the materials under scrutiny. Yet, even though the questions were irrelevant, Dr. Stevenson was still allowed to testify as to the content of three of the nine questions, as well as to the specific results of one of them. In addition, Dr. Stevenson was allowed to testify that the answers to the questions showed a 2-1 or 3-1 ratio that the average person in Mecklenburg County would not find this kind of material patently offensive. Finally, even if the exclusion of the remaining questions and answers was error, defendant has failed to show that a different result would have been reached at trial had the error in question not been committed. State v. Knox, 78 N.C. App. 493, 337 S.E. 2d 154. Therefore, we hold that the trial court properly excluded Dr. Stevenson\u2019s testimony and error, if any, was not prejudicial.\nDefendant\u2019s fourth argument is that the trial court erred in refusing to grant his motion for a mistrial after Officer Trull testified that \u201c[m]y opinion is that [the subject materials] are obscene.\u201d We disagree.\nThe trial court immediately sustained defense counsel\u2019s objection to this statement, granted a motion to strike and instructed the jury that the witness\u2019s opinion was not evidence in the case. At that point defense counsel moved for a mistrial and the trial judge stated:\n[Officer Trull\u2019s] opinion of what the magazines were or were not is not relevant at this stage of the proceedings. I instruct you that his opinion is not relevant at any point in your deliberations. Are there any of you that can\u2019t follow that instruction?\nUpon the failure of any juror to respond that he could not follow this instruction, the trial judge reiterated his instruction that Officer Trull\u2019s \u201copinion at this time is not competent and shall not be considered by you at any point in your deliberations.\u201d\nDefendant contends that the trial court\u2019s instructions were insufficient to strike the statement from the jury\u2019s mind and that a mistrial should have been granted. However, a motion for mistrial is addressed to the sound discretion of the trial judge and absent a showing of gross abuse of that discretion, the trial court\u2019s ruling will not be disturbed on appeal. State v. Glover, 77 N.C. App. 418, 335 S.E. 2d 86 (1985). In addition, \u201cour legal system through trial by jury operates on the assumption that a jury is composed of men and women of sufficient intelligence to comply with the court\u2019s instructions and they are presumed to have done so.\u201d Id. at 421, 335 S.E. 2d at 88. Given the prompt and repeated instructions by the trial court, we hold that it properly exercised its discretion in denying defendant\u2019s motion for a mistrial.\nDefendant argues that the trial court also erred in not granting his motion for a mistrial based on the prosecutor\u2019s improper argument to the jury. We disagree.\nIn his closing argument the district attorney stated to the jury:\n\u201cIs this material shameful to the average person in this community?\u201d You know this material is shameful to the average person in this community. . . . Would the average adult in this community be offended by that material? Certainly they are going to be offended by the material. . . . They would say number 1, it is shameful, and number 2, it is offensive, and that is the test. . . . Does the average citizen in Mecklen-burg County, the average adult citizen, will he or she consider this to be shameful, and will they be offended by it, and does it have serious scientific value, and I submit to you the answer is, \u201cNo,\u201d and that the answer is that this material is shameful and it is offensive.\nDefendant contends that the prosecutor misstated the law of obscenity by referring to the materials as shameful and offensive rather than stating that the material must be patently offensive and appeal to a prurient interest in sex. Defendant argues that the court\u2019s failure to sustain objections to these statements and to give curative instructions constituted prejudicial error. However, the district attorney was not arguing that the jury should substitute some test comprised purely of shamefulness and offensiveness for the Miller test of obscenity. In fact, the district attorney referred to and defined patent offensiveness and prurient interest, in accordance with Miller, several times in his argument. In addition, the trial court properly instructed the jury on the law of obscenity after the district attorney gave his final argument. Therefore, we hold that error, if any, in the district attorney\u2019s statement of the law, was not prejudicial.\nDefendant also objects to two other portions of the district attorney\u2019s argument to the jury. First, defendant argues that the district attorney\u2019s reference to the subject materials as \u201cfilth\u201d was an improper statement of his personal opinion to the jury. Defendant also objects to the district attorney\u2019s statement to the jury that they were to apply the test for obscenity, \u201cnot some guy from New York.\u201d He contends that this is a hostile reference to defense counsel, Paul Cambria, who is from New York. Defendant contends that these comments were so highly prejudicial as to require a new trial. We disagree.\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 addition, it is well settled that counsel are allowed wide latitude in arguments to the jury in hotly contested cases. State v. Wingard, 317 N.C. 590, 601, 346 S.E. 2d 638, 645 (1986). They are allowed \u201cto argue before the jury law and facts in evidence and all reasonable inferences to be drawn therefrom.\u201d Id. When the prosecution\u2019s argument is viewed as a whole, as it must be, State v. Payne, 312 N.C. 647, 325 S.E. 2d 205 (1985), we find that the prosecutor\u2019s statements were not so grossly improper as to prejudice the defendant. Therefore, we find that the trial court properly denied defendant\u2019s objections to these statements.\nDefendant next argues that the trial court erred in denying his motion to dismiss for insufficiency of the evidence on the issue of guilty knowledge. We find no merit in this argument.\nUnder N.C. Gen. Stat. \u00a7 14490.1(a), the prosecutor must prove beyond a reasonable doubt that the person charged \u201cintentionally\u201d disseminated obscenity. This standard requires findings of both \u201cintent\u201d and \u201cguilty knowledge.\u201d Cinema I Video v. Thornburg, 83 N.C. App. 544, 351 S.E. 2d 305 (1986), aff'd, 320 N.C. 485, 358 S.E. 2d 383 (1987). Guilty knowledge requires not only knowledge of the character or nature of the materials, but also knowledge of their content. Hamling v. United States, 418 U.S. 87, 41 L.Ed. 2d 590, 94 S.Ct. 2887 (1974).\nDefendant contends that in the present case there is no direct proof that he had any knowledge of the subject materials\u2019 contents, so that his motion to dismiss should have been granted. On a motion to dismiss the evidence must be considered in the light most favorable to the State, and the State must be given the benefit of every reasonable inference to be drawn therefrom. State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967). \u201cThe test of the sufficiency of the evidence to withstand such a motion is the same whether the evidence is circumstantial, direct, or both.\u201d Id. at 383, 156 S.E. 2d at 682.\nThe circumstantial evidence here amply established defendant\u2019s knowledge of the subject materials\u2019 content. First, Officer Trull testified that he had seen defendant in the bookstore on two occasions prior to the date on which the materials were purchased. Also, the box containing the film and the covers of the magazines were illustrated with pictures. Officer Trull testified that these pictures were indicative of the contents of the film and magazines. Finally, the jury had the opportunity to examine the film and magazines themselves to determine whether the box and covers reflected the materials\u2019 contents, as proof that defendant had knowledge of such. Viewing this evidence in the light most favorable to the State, we hold that it was sufficient to permit a reasonable inference that defendant had knowledge of the materials\u2019 contents. Therefore, we find that defendant\u2019s argument on this issue is without merit.\nFinally, defendant argues that the trial court should have allowed his motion to dismiss because N.C. Gen. Stat. \u00a7 14-190.1 is unconstitutional. He contends that the statute is unconstitutional in that it: (1) fails to set forth a proper scienter requirement; (2) fails to provide for a prompt judicial determination of obscenity; (3) omits the words \u201cin any public place\u201d; (4) is over-broad in its definition of sexual conduct; and (5) fails to include the phrase \u201ctaken as a whole\u201d with regard to the examination of a material\u2019s literary, artistic, political or scientific value. Each of these constitutional challenges were previously addressed and found meritless in Cinema I Video v. Thornburg, 83 N.C. App. 544, 351 S.E. 2d 305, aff'd, 320 N.C. 485, 358 S.E. 2d 383. In light of this Court\u2019s decision in that case, we hold that there was no error in the trial court\u2019s denial of defendant\u2019s motion to dismiss based on the unconstitutionality of the statute.\nIn conclusion, we hold that defendant received a fair trial, free of prejudicial error.\nNo error.\nJudge Phillips concurs.\nJudge Greene dissents.", "type": "majority", "author": "COZORT, Judge." }, { "text": "Judge Greene\ndissenting.\nI dissent from the majority\u2019s holding that the trial court\u2019s erroneous jury instruction constituted harmless error under Pope v. Illinois, 481 U.S. ---, 95 L.Ed. 2d 439, 107 S.Ct. 1918 (1987). Under Pope an erroneous instruction as to the \u201cvalue\u201d prong of the obscenity test under Miller v. California, 413 U.S. 15, 37 L.Ed. 2d 419, 93 S.Ct. 2607 (1973) is harmless error if the \u201creviewing court concludes that no rational juror, if properly instructed, could find value\u201d in the allegedly obscene materials. Pope, 481 U.S. at \u2014, 95 L.Ed. 2d at 447 (emphasis added). The \u201cproperly instructed\u201d condition refers to, among other things, the juror\u2019s being instructed to employ the \u201creasonable person\u201d standard also enunciated in Pope.\nWithout discussion or example, the majority merely states no rational juror could find value in these materials. I disagree. Neither the \u201creasonableness\u201d nor the \u201crationality\u201d of Drs. Nemeroff and Wade has been disputed. Their testimony that these materials \u201ccould\u201d have scientific and educational value can only mean that, if these doctors were jurors in this case, they \u201ccould\u201d find serious educational or scientific value in these materials. Despite the majority\u2019s implication, the doctors are certainly not required to \u201cconclusively\u201d establish these materials\u2019 serious value in order that one rational juror \u201ccould\u201d reach the same value judgment reached by the doctors: such an interpretation turns the Pope standard on its head. The \u201cno rational juror\u201d basis for finding harmless error under Pope is refuted by demonstrating that even one hypothetical \u201crational\u201d juror could find value in these materials when using the proper \u201creasonable person\u201d standard.\nI note that, in concurrence, Justice Scalia states it would \u201ccarry refinement to the point of meaninglessness to ask whether [a reasonable person] could\u201d find value in a particular publication. 481 U.S. at \u2014, 96 L.Ed. 2d at 448 (Scalia, J., concurring) (emphasis in original). Yet, \u201ccould\u201d is the key word adopted in the \u201cno rational juror\u201d standard of harmless error. Given Justice Scalia\u2019s criticism, I would further note that only four Justices expressly approved the actual \u201cno rational juror\u201d test applied by the majority of this panel to affirm the instant defendant\u2019s conviction.\nNevertheless, given this standard, the instant conviction should be reversed: While a properly instructed juror could find no value despite the doctors\u2019 testimony, that juror could just as rationally find the necessary value based on that testimony. In light of the \u201cno rational juror\u201d standard under Pope and the testimony of Drs. Nemeroff and Wade, I therefore cannot conclude that no rational juror could find in these materials the serious scientific, artistic, literary or political value required under Miller.\nI fail to see how the majority can simply presume its value judgment accords with that of a \u201creasonable person\u201d while a contrary judgment based upon the actual experience of two experts does not. Indeed, since the majority reaches its conclusion without discussion or example, its opinion is subject to the charge that the majority has merely imposed its own views rather than apply the \u201creasonable person\u201d test. This is the very defect under Pope that I and the majority recognize in the trial court\u2019s instructions to this jury.\nI refuse to compound the trial court\u2019s error and would remand this case for retrial based upon the trial court\u2019s failure to instruct in accord with Pope. As I would remand the case for retrial, I do not address the defendant\u2019s other assignments of error.", "type": "dissent", "author": "Judge Greene" } ], "attorneys": [ "Attorney General Lacy H. Thornburg by Assistant Attorney General Norma S. Harrell for the State.", "Lipsitz, Green, Fahringer, Roll, Schuller & James by Herbert L. Greenman, Paul J. Cambria, Jr., and Cherie L. Peterson; and James, McElroy & Diehl by Edward T. Hinson, Jr., and Mark T. Calloway for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DONALD JOSEPH ROLAND\nNo. 8726SC321\n(Filed 15 December 1987)\n1. Obscenity \u00a7 3\u2014 value of materials \u2014reasonable man standard \u2014erroneous instructions \u2014 harmless error\nThe trial court erred in instructing the jury in a prosecution for disseminating obscenity that it should assess the value of the materials based on its \u201cown views\u201d rather than on a reasonable man standard. However, such error was harmless because no rational juror, properly instructed, could have found value in the materials in question even though defendant\u2019s expert witnesses testified that the materials \u201ccould\u201d have scientific and educational value.\n2. Obscenity \u00a7 2\u2014 absence of statewide standard \u2014 equal protection\nN.C.G.S. \u00a7 14-190.1(b) does not violate the equal protection clause of the N. C. Constitution because it does not require the application of a statewide community standard in determining what materials are obscene.\n3. Obscenity \u00a7 3\u2014 survey of community attitudes \u2014exclusion of specific questions and responses\nThe trial court in a prosecution for disseminating obscenity did not err in refusing to permit defendant\u2019s expert witness to testify as to the specific questions and responses of a survey conducted to measure the level of community acceptance or tolerance for sexually explicit materials since the questions dealt primarily with public tolerance of obscene materials in general and lacked probative value as to whether the materials in question were patently offensive or appealed to the prurient interest.\n4. Criminal Law \u00a7 128.2; Obscenity \u00a7 3\u2014 testimony that materials \u201cobscene\u201d \u2014 refusal to order mistrial\nThe trial court did not err in refusing to grant a mistrial in a prosecution for disseminating obscenity when an officer testified that his opinion was that the materials in question were obscene where the court granted a motion to strike and instructed the jury that the officer\u2019s opinion was not evidence in the case.\n5. Obscenity \u00a7 3\u2014 jury argument \u2014 materials \u201cshameful\u201d and \u201coffensive\u201d \u2014 absence of prejudice\nError, if any, in the district attorney\u2019s jury argument in an obscenity case that the test was whether the materials were \u201cshameful\u201d and \u201coffensive\u201d was not prejudicial to defendant where the district attorney referred to and gave the legal definitions of patent offensiveness and prurient interest several times in his argument, and the trial court properly instructed the jury on the law of obscenity after the district attorney made his final argument.\n6. Criminal Law \u00a7 102.6; Obscenity \u00a7 3\u2014 jury argument \u2014 materials as \u201cfilth\u201d \u2014 reference to defendant\u2019s attorney \u2014no gross impropriety\nThe prosecutor\u2019s jury argument that the materials in question were \u201cfilth\u201d and his statement that the jury was to apply the test for obscenity, \u201cnot some guy from New York,\u201d an apparent reference to defendant\u2019s New York counsel, were not so grossly improper as to prejudice defendant.\n7. Obscenity \u00a7 3\u2014 dissemination of obscenity \u2014 guilty knowledge\nThe State\u2019s evidence in a prosecution for disseminating obscenity was sufficient for the jury to find that defendant had guilty knowledge of the contents of the film and magazines in question where it tended to show that the officer who purchased the materials from defendant in an adult bookstore had seen defendant there on two prior occasions, and that the film box and magazine covers were illustrated with pictures which were indicative of the contents of the film and magazines.\n8. Obscenity \u00a7 1\u2014 dissemination of obscenity \u2014 statute constitutional\nThere was no merit to defendant\u2019s contention that the statute prohibiting the dissemination of obscenity, N.C.G.S. \u00a7 14-190.1, is unconstitutional on grounds that it (1) fails to set forth a proper scienter requirement; (2) fails to provide for a prompt judicial determination of obscenity; (3) omits the words \u201cin any public place\u201d; (4) is overbroad in its definition of sexual conduct; and (5) fails to include the phrase \u201ctaken as a whole\u201d with regard to the examination of a material\u2019s literary, artistic, political or scientific value.\nJudge Greene dissenting.\nAppeal by defendant from Lewis (Robert D.j, Judge. Judgment entered 5 November 1986 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 25 September 1987.\nAttorney General Lacy H. Thornburg by Assistant Attorney General Norma S. Harrell for the State.\nLipsitz, Green, Fahringer, Roll, Schuller & James by Herbert L. Greenman, Paul J. Cambria, Jr., and Cherie L. Peterson; and James, McElroy & Diehl by Edward T. Hinson, Jr., and Mark T. Calloway for defendant appellant." }, "file_name": "0019-01", "first_page_order": 47, "last_page_order": 59 }