{ "id": 2563359, "name": "STATE OF NORTH CAROLINA v. JEFF MAYES", "name_abbreviation": "State v. Mayes", "decision_date": "1988-09-07", "docket_number": "No. 514A87", "first_page": "159", "last_page": "170", "citations": [ { "type": "official", "cite": "323 N.C. 159" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "359 S.E. 2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": -1 }, { "cite": "86 N.C. App. 569", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12137526 ], "year": 1987, "opinion_index": -1, "case_paths": [ "/nc-app/86/0569-01" ] }, { "cite": "73 S.E. 2d 143", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "145" } ], "opinion_index": 0 }, { "cite": "236 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626453 ], "year": 1952, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0489-01" ] }, { "cite": "30 L.Ed. 2d 264", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "404 U.S. 947", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6407906, 6408218, 6408003, 6408835, 6408455, 6408553, 6408938, 6409045, 6408728, 6408346 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/404/0947-01", "/us/404/0947-03", "/us/404/0947-02", "/us/404/0947-08", "/us/404/0947-05", "/us/404/0947-06", "/us/404/0947-09", "/us/404/0947-10", "/us/404/0947-07", "/us/404/0947-04" ] }, { "cite": "448 F. 2d 583", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 803478 ], "opinion_index": 0, "case_paths": [ "/f2d/448/0583-01" ] }, { "cite": "337 S.E. 2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "78 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522281 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/78/0493-01" ] }, { "cite": "354 U.S. 476", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6160660 ], "weight": 2, "year": 1956, "pin_cites": [ { "parenthetical": "fact that different juries could reach different results as to whether same material is obscene is normal consequence of jury system" }, { "parenthetical": "fact that different juries could reach different results as to whether same material is obscene is normal consequence of jury system" } ], "opinion_index": 0, "case_paths": [ "/us/354/0476-01" ] }, { "cite": "42 L.Ed. 2d 129", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1974, "pin_cites": [ { "parenthetical": "statewide standard not required" } ], "opinion_index": 0 }, { "cite": "419 U.S. 885", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6375050, 6374733, 6375484, 6374909, 6375230 ], "year": 1974, "pin_cites": [ { "parenthetical": "statewide standard not required" } ], "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": 6, "year": 1974, "pin_cites": [ { "parenthetical": "statewide standard not required" }, { "parenthetical": "statewide standard not required" }, { "page": "104-05" }, { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/us/418/0087-01" ] }, { "cite": "358 S.E. 2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "320 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727097 ], "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, "opinion_index": 0 }, { "cite": "83 N.C. App. 544", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359068 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/83/0544-01" ] }, { "cite": "42 L.Ed. 2d 188", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1974, "opinion_index": 0 }, { "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": "203 S.E. 2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 27", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561642 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0027-01" ] }, { "cite": "418 U.S. 153", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172107 ], "weight": 6, "year": 1974, "pin_cites": [ { "page": "157" }, { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/us/418/0153-01" ] }, { "cite": "366 S.E. 2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "470" }, { "page": "468" } ], "opinion_index": 0 }, { "cite": "322 N.C. 22", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514399 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0022-01" ] }, { "cite": "413 U.S. 15", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11338628 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/413/0015-01" ] } ], "analysis": { "cardinality": 974, "char_count": 25349, "ocr_confidence": 0.831, "pagerank": { "raw": 8.667725896263563e-08, "percentile": 0.49194547635788805 }, "sha256": "821fc73902859366d095464a38abde05fdc3b4c0e71315c6fdac16a2796ac12e", "simhash": "1:2fb9d6b2370485f7", "word_count": 4073 }, "last_updated": "2023-07-14T15:25:25.148086+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JEFF MAYES" ], "opinions": [ { "text": "MEYER, Justice.\nDefendant was convicted by a Cleveland County jury on two counts of disseminating obscene material in violation of N.C.G.S. \u00a7 14-190.1. The trial judge consolidated the offenses for the purpose of judgment and sentenced defendant to a term of one year\u2019s imprisonment, but suspended the sentence and placed defendant on supervised probation for five years. As a special condition of the probation, defendant was ordered to pay a $750.00 fine and to serve a six-month active prison term.\nDefendant appealed his conviction to the Court of Appeals. The panel below, with one judge dissenting, found no error. Defendant entered notice of appeal on two statutory grounds: (1) the judgment of the Court of Appeals directly involves substantial questions arising under the Constitution of North Carolina, N.C.G.S. \u00a7 7A-30(1) (1986), and (2) there was a dissenting opinion in the Court of Appeals, N.C.G.S. \u00a7 7A-30(2) (1986). We allowed the State\u2019s motion to dismiss the appeal for lack of a substantial constitutional question, but allowed the defendant\u2019s petition for discretionary review as to issues in addition to those presented as the basis for the dissenting opinion in the Court of Appeals. The case thus is before us based on the dissenting opinion in the Court of Appeals and our discretionary grant of review of additional issues. We affirm the Court of Appeals\u2019 decision.\nThe State\u2019s evidence tended to show the following: Sergeant Ralph McKinney of the Cleveland County Sheriffs Department testified that he directed the department\u2019s vice and narcotics investigations. By virtue of his position, Sergeant McKinney was familiar with the Shelby III Adult Bookstore which is located west of Shelby, and on 1 October 1985, the date on which the revisions to the state\u2019s obscenity law (N.C.G.S. \u00a7 14-190.1) took effect, he paid the store a visit.\nDressed in civilian clothes, Sergeant McKinney drove to the store in an unmarked car. Upon arrival, he was met by defendant, who was standing in the store doorway. Defendant asked Sergeant McKinney if he was a \u201ccop.\u201d McKinney responded by asking defendant if he \u201clooked like a cop.\u201d Defendant then remarked that he had been expecting the police all day. Sergeant McKinney asked, \u201cYou mean this stuff is illegal now?\u201d Defendant replied, \u201cUnder the new law, it is.\u201d\nSergeant McKinney then followed the defendant into the Shelby III Adult Bookstore. He described the store as featuring a mini movie theatre with individual booths and a large display area containing adult magazines, adult video tapes, and sexual novelties. After browsing in the store for about twenty minutes, McKinney selected two magazines and presented them to defendant at the cash register. Each magazine was wrapped in clear cellophane so that only its cover was visible. Defendant rang up the sale, and Sergeant McKinney paid for the magazines and left.\nThe State introduced both magazines into evidence at the trial. One magazine, Express \u2014 The Pursuit of Pleasure, contains several erotic stories, reviews of various erotic magazines and video tapes, interviews, advertisements, and many graphic and explicit photographs. The photographs portray nude and partially clad men and women engaged in a variety of sexual acts, including both vaginal and anal intercourse, fellatio, cunnilingus, masturbation, group sex, and bondage. The other magazine, Cock-screw, consists for the most part of graphic and explicit photographs of two men, sometimes nude and sometimes partially clad, engaging in fellatio, anal intercourse, and masturbation. A tenuous and scant story line accompanies the photographs.\nDefendant did not testify. However, he attempted to present three witnesses on his behalf. The first was Dr. Terry Cole, a professor at Appalachian State University, who was subsequently qualified as an expert in speech and communication in the context of public communication. During voir dire, Dr. Cole expressed his opinion that the magazines did not depict sexual conduct in a patently offensive way and that, applying the contemporary community standards, the magazines did not appeal to the prurient interest in sex. Dr. Cole testified that in his opinion the magazines had serious political and scientific value. At the conclusion of the voir dire, the trial court refused to allow the introduction of any of Dr. Cole\u2019s testimony.\nDefendant next offered the expert opinion testimony of Dr. Charles Winick, a psychologist and se.x therapist, who, at defendant\u2019s request, had conducted a survey of North Carolina opinion on the explicit depiction of sexual conduct. The first question in the survey asked whether, in the opinion of those interviewed, changing standards in recent years had made the depiction of nudity and sex in materials made available only to adults more or less acceptable. The next four questions were directed to whether those persons interviewed believed that consenting adults should have the right to obtain and view materials which depict nudity and sex. The final question asked whether those persons interviewed understood that the references to \u201cnudity and sex\u201d in the previous questions meant \u201cexposure of the genitals and every kind of sexual activity, no matter how graphically depicted.\u201d\nThe trial court allowed Dr. Winick to offer his expert opinion, based on the survey, that the two magazines were not patently offensive and that they did not appeal to the average person\u2019s prurient interest in sex. Dr. Winick testified that the magazines had serious scientific value and that they were exceptional in their artistic handling of the subject matter. The trial court allowed Dr. Winick to introduce the cumulative responses to the first and final questions of the survey \u2014 the question concerning changing standards and the question concerning the definition of \u201cnudity' and sex\u201d as used in the survey. The trial court did not permit the introduction of the cumulative responses to the intervening questions, however, concluding that those questions and answers were not relevant to any issue to be resolved at trial.\nFinally, defendant called Jan Frankowitz, a private investigator, purportedly to lay the foundation for the admission into evidence of magazines comparable to those at issue. Mrs. Frankowitz testified that she purchased the two magazines proffered, Allure and Club International, at The Pantry, a local convenience store. The defense sought the introduction of these magazines as evidence of general acceptance in the community of sexually frank materials. The trial court rejected defendant\u2019s argument that they were relevant to prove the contemporary community standard and excluded defendant\u2019s offer of proof in toto.\nDefendant brings forward two issues for this Court\u2019s consideration. First, whether the trial court erred in failing properly to instruct the jurors on the appropriate community standards to be applied in determining whether the two magazines were obscene; and second, whether the trial court erred in excluding not only evidence concerning contemporary community standards, but also expert opinion evidence relevant to the application of the obscenity test.\nI.\nNorth Carolina\u2019s obscenity statute, N.C.G.S. \u00a7 14-190.1 is modeled on the test enunciated by the United States Supreme Court in Miller v. California, 413 U.S. 15, 37 L.Ed. 2d 419 (1972). The statute provides in part:\n(b) For purposes of this Article any material is obscene if:\n(1) The material depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (c) of this section; and\n(2) The average person applying contemporary community standards relating to the depiction or description of sexual matters would find that the material taken as a whole appeals to the prurient interest in sex; and\n(3) The material lacks serious literary, artistic, political, or scientific value; and\n(4) The material as used is not protected or privileged under the Constitution of the United States or the Constitution of North Carolina.\nN.C.G.S. \u00a7 14-190.1(b) (1986). At trial, defendant requested two jury instructions which would have required the jury to apply a statewide community standard under the \u201ccontemporary community standards\u201d test in subsection (b)(2) of the statute. This request was denied. In its instructions to the jury, the trial court neither specifically defined the term \u201ccommunity standards,\u201d nor instructed the jurors to reach a consensus as to the geographic bounds of the community whose standards they were to apply.\nDefendant\u2019s first issue is twofold. Initially, he contends that the North Carolina Constitution requires that a statewide standard be judicially incorporated into N.C.G.S. \u00a7 14-190.1 in order to render the statute facially valid.\nThis question has been recently decided against defendant. State v. Anderson, 322 N.C. 22, 366 S.E. 2d 459 (1988). There, the defendant argued that N.C.G.S. \u00a7 14-190.1 was facially invalid under article I, sections 14 and 19 of the North Carolina Constitution because it failed to provide guidance or uniformity in selection of the community by whose standards a defendant\u2019s conduct was to be judged. Anderson contended that the flaw lay in the statute\u2019s failure to specify that obscenity was to be judged in accordance with national or statewide community standards or to specify the geographical area intended by the term \u201ccommunity standards.\u201d Defendant here makes the identical argument. In Anderson we dealt with the contention as follows:\nWhen the same argument has been based upon the Constitution of the United States, it has been rejected. Jenkins v. Georgia, 418 U.S. 153, 41 L.Ed. 2d 642 (1974). We are constrained to conclude that this argument is equally untenable when based upon the Constitution of North Carolina. See State v. Bryant and Floyd, 285 N.C. 27, 203 S.E. 2d 27, cert. denied, 419 U.S. 974, 42 L.Ed. 2d 188 (1974). As presently constituted, N.C.G.S. \u00a7 14-190.1 is not facially violative of the Constitution of North Carolina. Cinema I Video v. Thornburg, 83 N.C. App. 544, 351 S.E. 2d 305 (1986), aff\u2019d, 320 N.C. 485, 358 S.E. 2d 383.\nId. at 40-41, 366 S.E. 2d at 470. Defendant\u2019s argument here is no more persuasive than was Anderson\u2019s.\nDefendant goes on to argue that the trial court erred in failing to instruct the jury as to precisely which community standards were relevant to their determination of whether the magazines were obscene. He contends that by instructing only that the jurors apply \u201ccontemporary community standards,\u201d the trial court left the appropriate \u201ccommunity\u201d open to \u201csheer speculation\u201d on the jury\u2019s part. The majority of the panel of the Court of Appeals held that the trial court did not err in failing to define the geographic boundaries of the jury\u2019s \u201ccommunity.\u201d We agree.\nIn Jenkins v. Georgia, 418 U.S. 153, 41 L.Ed. 2d 642 (1974), the trial court instructed the jury to apply \u201ccommunity standards\u201d without defining the geographical limits of \u201ccommunity.\u201d The United States Supreme Court approved the instructions, stating:\nWe agree with the Supreme Court of Georgia\u2019s implicit ruling that the Constitution does not require that juries be instructed in state obscenity cases to apply the standards of a hypothetical statewide community. Miller approved the use of such instructions; it did not mandate their use. What Miller makes clear is that state juries need not be instructed to apply \u201cnational standards.\u201d We also agree with the Supreme Court of Georgia\u2019s implicit approval of the trial court\u2019s instructions directing jurors to apply \u201ccommunity standards\u201d without specifying what \u201ccommunity.\u201d Miller held that it was constitutionally permissible to permit juries to rely on the understanding of the community from which they came as to contemporary community standards, and the States have considerable latitude in framing statutes under this element of the Miller decision. A State may choose to define an obscenity offense in terms of \u201ccontemporary community standards\u201d as defined in Miller without further specification, as was done here, or it may choose to define the standards in more precise geographic terms, as was done by California in Miller.\nId. at 157, 41 L.Ed. 2d at 648. See Hamling v. United States, 418 U.S. 87, 41 L.Ed. 2d 590, reh\u2019g denied, 419 U.S. 885, 42 L.Ed. 2d 129 (1974) (statewide standard not required); Roth v. United States, 354 U.S. 476, 1 L.Ed. 2d 1498 (1956) (fact that different juries could reach different results as to whether same material is obscene is normal consequence of jury system). As presently written, N.C.G.S. \u00a7 14-190.1 reflects the Legislature\u2019s choice in defining obscenity offenses in this state in terms of \u201ccontemporary community standards\u201d without further specification. As the Court of Appeals majority noted, in the absence of a precise statutory specification of \u201ccommunity,\u201d the trial court properly declined to restrict or expand the term. Rather, it instructed the jury in part as follows:\nAgain, it is for you, members of the jury, to say and to decide what the contemporary community standards are, not your own standards but those of the average adult person in the community relating \u2014 with relation to the magazines depicting, illustrating or describing sexual conduct.\nYou are not to fix a community standard, members of the jury, at a level where you believe from a personal standpoint they should be but, rather, as you find them to be.\nNorth Carolina is a large and diverse state. As the Court of Appeals majority pointed out, no realist would expect to find that the same standards exist throughout the state, or that the residents in one area of the state would have knowledge of the community standards held in another area. N.C.G.S. \u00a7 14-190.1 allows for such diversity. We note that the magazines in this case were sold in the same county from which the venire was drawn and defendant\u2019s petit jury was selected. See N.C.G.S. \u00a7 9-2 (1986). The trial court\u2019s instruction thus properly permitted the jurors to apply the standards of the community in which the indictment was returned and from which the jurors came, as they found them to be, in deciding whether the magazines sold in that community were obscene. This task differs little from the manner in which jurors determine \u201cthe 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. The trial court did not err in failing specifically to define the term \u201ccommunity,\u201d or to instruct the jury to reach a consensus as to the geographic bounds of the community standards they were to apply.\nII.\nWe turn now to the question of whether the trial court erred in excluding certain evidence and expert testimony proffered by the defendant.\nDr. Charles Winick, a psychologist and sex therapist, conducted a survey at defendant\u2019s request among four hundred adults in forty-one counties for trial purposes. The survey included the following questions:\nQ:2 In your opinion, have standards changed in recent years, so that depictions of nudity and sex are more acceptable or less acceptable in movies, video cassettes, publications, and other materials depicting nudity and sex and available only to adults, but not [to] children? ....\nQ:3 Do you agree or disagree that adults who want to, have the right to obtain and see movies, video cassettes, publications and other materials depicting nudity and sex and which are available only to adults, but not to children? ....\nQ:4 Do you agree or disagree that adults who want to, have the right to patronize and make purchases at bookstores where publications and other materials depicting nudity and sex and which are available only to adults, but not to children? ....\nQ:5 Do you agree or disagree that adults who want to, have the right to patronize theatres where movies presenting nudity and sex are available only to adults, but not to children? ....\nQ:6 Do you think it is alright [sic] or not alright [sic], for adults who wish to do so, to obtain and see in the privacy of their homes, movies, video cassettes, publications and other materials depicting nudity and sex, which are available only to adults and not to children? ....\nQ:7 We have used the words nudity and sex in the preceding questions. What we mean by these words includes exposure of the genitals and every kind of sexual activity, no matter how graphically depicted. Is that what you understood we meant, or did you think we meant something else? ....\nAfter conducting a voir dire, the trial court permitted Dr. Winick to testify concerning the responses to question 2 regarding changing standards and to question 7 concerning the manner of use of the phrase \u201cnudity and sex,\u201d but excluded all testimony relating to questions 3 through 6. Defendant argues that the excluded survey responses and Dr. Winick\u2019s proffered testimony related thereto should have been allowed because they would have assisted the jury in determining contemporary community standards. The Court of Appeals concluded that the excluded survey questions had no relevance to what the community considered obscene. We agree.\nThe exact same survey questions were at issue in State v. Anderson, 322 N.C. 22, 366 S.E. 2d 459, although there Dr. Winick only conducted the survey among the residents of Catawba County. There, as here, the trial court allowed testimony concerning questions 2 and 7, but excluded the remainder. Having reviewed the excluded questions in Anderson, we stated:\nWe conclude that the trial court properly excluded the cumulative results of the survey with regard to questions 3, 4, 5, and 6. Those questions amounted to little more than a referendum on the desirability of the First Amendment and N.C.G.S. \u00a7 14-190.1. The issue the jury was to decide, however, was whether the average adult, applying contemporary community standards, would find that the magazines in question appealed to a prurient interest in sex in a patently offensive manner. The trial court did not abuse its discretion when it determined that the cumulative results of the responses to questions 3, 4, 5, and 6 would not assist the jury in resolving the issue before it and excluded those questions and results. See State v. Evangelista, 319 N.C. at 164, 353 S.E. 2d at 384; State v. Knox, 78 N.C. App. 493, 337 S.E. 2d 154; N.C.G.S. \u00a7 8C-1, Rule 702 (1986).\nId. at 36, 366 S.E. 2d at 468. Anderson is dispositive here. The trial court properly excluded questions 3, 4, 5 and 6 and their results, as well as Dr. Winick\u2019s related testimony.\nDefendant next contends that the trial court erred in refusing to admit into evidence two magazines purchased by Mrs. Jan Frankowitz, the private investigator, in a local convenience store for comparison by the jury with the two allegedly obscene magazines which were the subject of the trial. The trial court found the \u201ccomparison\u201d magazines to be irrelevant. Defendant argues that the availability of the magazines that Mrs. Frankowitz bought indicated community acceptance. We disagree.\nThe fallacy in defendant\u2019s argument is that availability does not indicate community acceptance; it indicates only availability. We agree with the Court of Appeals that availability of similar material alone means nothing more than that other persons are engaged in disseminating similar material. Evidence of mere availability of similar materials is not by itself sufficiently probative of community standards to be admissible in the absence of proof that the material enjoys a reasonable degree of community acceptance. See Hamling v. United States, 418 U.S. 87, 41 L.Ed. 2d 590; United States v. Manarite, 448 F. 2d 583 (2d Cir.), cert. denied, 404 U.S. 947, 30 L.Ed. 2d 264 (1971). The trial court did not err in excluding this evidence.\nFinally, defendant argues that the trial court erred in refusing to permit Dr. Terry Cole, a professor at Appalachian State University, to testify. Dr. Cole would have testified that he had made a systematic study under accepted methodology of sexually explicit materials with relation to the first amendment to the United States Constitution and N.C.G.S. \u00a7 14-190.1, and that based on this study, he held the opinion that the magazines in this case were not patently offensive and did not appeal to the prurient interest in sex. Dr. Cole would have testified further that the magazines had scientific, educational and political value based upon their use in marriage and sex counseling, in the classroom setting and in communication of ideas among the general population. We agree with defendant that the trial court\u2019s refusal to admit the testimony was error, but we conclude that the error was harmless.\nDr. Cole was accepted by the trial court as an expert in \u201cspeech and communication in the context of public communication.\u201d He had years of experience in teaching speech communication, including the use of sexually explicit materials, at a North Carolina university. He had used magazines of the type at issue here throughout his teaching career to assist students in the understanding and application of the first amendment and state law relating to obscenity. He had made a specific study of the subject. In our view, he was qualified to give his expert opinion that the magazines in this case were not patently offensive and did not appeal to the prurient interest in sex. However, the jury was not deprived of the essence of Dr. Cole\u2019s testimony in arriving at its verdict because that portion of Dr. Winick\u2019s testimony which was admitted covered substantially the same ground. Dr. Winick testified that the magazines were not patently offensive and that they did not appeal to the prurient interest in sex. He also testified that they had artistic and scientific value. \u201c[A] litigant is not harmed by the exclusion of testimony, when the same, or substantially the same, testimony is subsequently admitted.\u201d Powell v. Daniel, 236 N.C. 489, 492, 73 S.E. 2d 143, 145 (1952). Defendant suffered no prejudice by the exclusion of Dr. Cole\u2019s testimony.\nWe conclude that defendant\u2019s trial was free of prejudicial error. The opinion of the Court of Appeals is therefore\nAffirmed.", "type": "majority", "author": "MEYER, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Steven F. Bryant, Assistant Attorney General, for the State.", "Lipsitz, Green, Fahringer, Roll, Schuller & James, by Herbert L. Greenman, and James, McElroy & Diehl, by Edward T. Hinson, Jr., for defendant-appellant.", "Smith, Patterson, Foll\u00edn, Curtis, James & Harkavy, by Michael K. Curtis, amicus curiae for the North Carolina Civil Liberties Union Foundation, Inc.; Ennis, Friedman & Bersoff, by Mark D. Schneider, amicus curiae for PHE, Inc." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JEFF MAYES\nNo. 514A87\n(Filed 7 September 1988)\n1. Obscenity \u00a7 1\u2014 lack of statewide standard \u2014 not unconstitutional\nThe North Carolina Constitution does not require that a statewide standard be judicially incorporated into the North Carolina obscenity statute, N.C.G.S. \u00a7 14-190.1, in order to render the statute facially valid.\n2. Obscenity \u00a7 1\u2014 failure to instruct the jury as to definition of community \u2014 no error\nThe trial court did not err in an obscenity prosecution by failing to specifically define the term community or to instruct the jury to reach a consensus as to the geographic bounds of the community standards they were to apply. The trial court\u2019s instruction properly permitted the jurors to apply the standards of the community in which the indictment was returned and from which the jurors came, as they found them to be, in deciding whether the magazines sold in that community were obscene. N.C.G.S. \u00a7 14-190.1.\n3. Obscenity \u00a7 3\u2014 expert testimony \u2014 survey results inadmissible\nThe trial court did not err in an obscenity prosecution by refusing to admit certain survey responses and testimony relating thereto because the excluded survey questions had no relevance to what the community considered obscene.\n4. Obscenity \u00a7 3\u2014 comparison magazines excluded \u2014 no error\nThe trial court did not err in an obscenity prosecution by refusing to admit into evidence two magazines purchased by a private investigator in a local convenience store for comparison by the jury with the two allegedly obscene magazines which were the subject of the trial. Availability does not indicate community acceptance; it indicates only availability.\n5. Obscenity \u00a7 3\u2014 opinion as to value of materials \u2014 excluded\u2014not prejudicial error\nAlthough the trial court erred in an obscenity prosecution by excluding testimony that a professor had made a systematic study under accepted methodology of sexually explicit materials with relation to the first amendment and was of the opinion that the magazines in this case were not patently offensive, did not appeal to the prurient interest in sex, and had scientific, educational and political value, there was no prejudice because substantially the same testimony was admitted elsewhere.\nOn defendant\u2019s petition for discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a decision of the Court of Appeals, 86 N.C. App. 569, 359 S.E. 2d 30 (1987), affirming a judgment entered by Owens, J., at the 19 August 1986 Criminal Session of Superior Court, Cleveland County, upon defendant\u2019s conviction by a jury on two counts of disseminating obscenity in violation of N.C.G.S. \u00a7 14-190.1. Heard in the Supreme Court 12 May 1988.\nLacy H. Thornburg, Attorney General, by Steven F. Bryant, Assistant Attorney General, for the State.\nLipsitz, Green, Fahringer, Roll, Schuller & James, by Herbert L. Greenman, and James, McElroy & Diehl, by Edward T. Hinson, Jr., for defendant-appellant.\nSmith, Patterson, Foll\u00edn, Curtis, James & Harkavy, by Michael K. Curtis, amicus curiae for the North Carolina Civil Liberties Union Foundation, Inc.; Ennis, Friedman & Bersoff, by Mark D. Schneider, amicus curiae for PHE, Inc." }, "file_name": "0159-01", "first_page_order": 191, "last_page_order": 202 }