Wright, J.
The defendants-appellants raise ten propositions of law, including challenges to the jurisdiction of the Urbana Municipal Court to rule whether the five magazines at issue are obscene. For the reasons that follow we affirm the lower court’s rulings.
In their first and third propositions of law, the defendants-appellants challenge the subject-matter jurisdiction of the Urbana Municipal Court to hear this declaratory judgment action. The trial court denied defendants’ motion to dismiss based upon the same arguments regarding subject-matter jurisdiction. The defendants then filed their answer and asserted counterclaims which alleged damages of fifteen thousand dollars. The counterclaims were dismissed without prejudice by the defendants before the plaintiff’s answer could be filed, pursuant to Civ. R. 41(A)(1) and (C). The plaintiff in this action seeks only declaratory relief.
A municipal court is a court of record which has the power to grant declaratory relief provided it has subject-matter jurisdiction over the underlying action. R.C. 2721.02; State, ex rel. Foreman, v. Bellefontaine Municipal Court (1967), 12 Ohio St. 2d 26, 28, 41 O.O. 2d 159, 160, 231 N.E. 2d 70, 71; see Ryan v. Tracy (1983), 6 Ohio St. 3d 363, 367, 6 OBR 416, 419, 453 N.E. 2d 661, 664. R.C. 1901.18 sets forth the subject-matter jurisdiction of the municipal courts. It provides in pertinent part:
“(A) Subject to the monetary jurisdiction of municipal courts as set forth in section 1901.17 of the Revised Code, a municipal court has original jurisdiction within its territory * * *:
“(1) In any civil action, of whatever nature or remedy, of which judges of county courts have jurisdiction * * *.” (Emphasis added.)
R.C. 1901.17, referred to above, limits the subject-matter jurisdiction to “those cases where the amount claimed by any party, or the appraised value of the personal property sought to be recovered, does not exceed ten thousand dollars. * * *”
Although defendants voluntarily dismissed their counterclaims, they argue that their damages would exceed ten thousand dollars should the plaintiff prevail and prevent the defendants from selling magazines such as those that are challenged in this action. Allegation alone is insufficient to divest a municipal court of jurisdiction based upon the amount of damages at issue unless the allegation is in a formal claim or counterclaim. Accordingly, the Urbana Municipal Court is not deprived of subject-matter jurisdiction upon this basis.
Furthermore, R.C. 1901.20(A) provides that:
“The municipal court has jurisdiction of the violation of any ordinance of any municipal corporation within its territory, * * * [exceptions omitted]. In all such prosecutions and cases, the court shall proceed to a final determination of the prosecution or case.”
The action at bar does not fall within any of the exceptions set forth in R.C. 1901.20, nor does it violate any of the other general jurisdictional statutes concerning municipal courts. If the magazines challenged are declared obscene, then the defendants could be subject to prosecution for the [111]*111misdemeanor offense of pandering obscenity. U.C.C. Section 133.014 is virtually identical to R.C. 2907.36 in its provision that there will be only one judicial determination whether certain materials or performances are obscene. U.C.C. Section 133.014- provides in part:
“(C) An action for a declaratory judgment pursuant to division (A) of this section shall not be brought during the pendency of any civil action or criminal prosecution, when the character of the particular materials or performances involved is at issue in the pending case, and either of the following apply:
“(1) Either of the parties to the action for a declaratory judgment is a party to the pending case;
“(2) A judgment in the pending case will necessarily constitute res judicata as to the character of the materials or performances involved.
“(D) A civil action or criminal prosecution in which the character of particular materials or performances is at issue, brought during the pendency of the action for a declaratory judgment involving the same issue shall be stayed during the pendency of the action for a declaratory judgment.
“(E) The fact that a violation of sections 133.011 or 133.012 occurs prior to a judicial determination of the character of the material or performance involved in the violation, does not relieve the offender of criminal liability for the violation, even though prosecution may be stayed pending the judicial determination.”
For example, if a misdemeanor prosecution for pandering obscenity is initiated first, then that proceeding will determine whether the materials or actions at issue are obscene. That prosecution would take place in municipal court. Subsection (C) precludes a collateral attack in a declaratory judgment action. Likewise, subsection (D) provides that if a declaratory judgment action has been first initiated, then it cannot be collaterally attacked in a simultaneous proceeding. It would make no sense to allow the municipal court to determine whether material is obscene during a misdemeanor prosecution, but preclude such a determination in a declaratory judgment action. For all the above reasons, appellants’ propositions of law concerning the alleged lack of subject-matter jurisdiction of the Urbana Municipal Court to hear this action are without merit.
Appellants in their seventh and eighth propositions of law assert that there is no case or controversy here, or if there is, this court should not render a declaratory judgment since it would not terminate the uncertainty or controversy giving rise to the proceeding. Appellants base this argument on the fact that a magazine is sold only for a limited period of time, and it is, in the normal course of business, removed from the market before all judicial proceedings can be terminated.
Such an argument, if accepted, would preclude a court from ever rendering a declaratory judgment as to whether a magazine is obscene. The determination of whether a magazine is obscene must be directed solely to each particular magazine at issue and procedural safeguards must be followed that are “designed to focus searchingly on the question of obscenity.” Marcus v. Search Warrant (1961), 367 U.S. 717, 732. For example, “[w]hile a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adver[112]*112sary hearing.” Fort Wayne Books, Inc. v. Indiana (1989), 489 U.S.____,____, 103 L. Ed. 2d 34, 51-52, 109 S. Ct. 916, 927. In other cases involving important First Amendment rights this court has held that a case or controversy is not moot if the issues involved are “capable of repetition, yet evading review.” State, ex rel. The Repository, v. Unger (1986), 28 Ohio St. 3d 418, 420, 28 OBR 472, 474, 504 N.E. 2d 37, 39; State, ex rel. Plain Dealer Publishing Co., v. Barnes (1988), 38 Ohio St. 3d 165, 527 N.E. 2d 807, paragraph one of the syllabus. Such a situation exists here. While this proceeding can only determine whether the specific magazines at issue are obscene, and those magazines have long since been withdrawn from circulation, the rationale and the facts in this decision should provide guidance in other cases. Accordingly, this controversy is not moot and appellants’ seventh and eighth propositions of law are without merit.
Appellants assert in their fourth proposition of law that the trial court erroneously admitted the testimony of plaintiff’s lay witnesses in violation of Evid. R. 701, which provides:
“If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue.”
The wording of the Ohio rule is identical to Fed. R. Evid. 701. “The primary purpose of Rule 701 is to allow nonexpert witnesses to give opinion testimony when, as a matter of practical necessity, events which they have personally observed cannot otherwise be fully presented to the court or the jury.” Randolph v. Collectramatic, Inc. (C.A. 10, 1979), 590 F. 2d 844, 846.2 In an obscenity trial, the trier of fact must determine, among other factors, whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest. Miller v. California (1973), 413 U.S. 15, 24. “[T]he term ‘average person’ does not include any number of people, the majority, or a few, or some, but is a term connoting a composite or synthesis of the community.” United States v. Treatman (C.A. 8, 1975), 524 F. 2d 320, 323. Qualitatively, the term average person does not mean the “abnormal adult of noxious tendencies or the person of defective or subnormal mentality.” State, ex rel. Beil, v. Mahoning Valley Distrib. Agency, Inc. (C.P. 1960), 84 Ohio Law Abs. 427, 440, 169 N.E. 2d 48, 59. For purposes of the Miller test, the average person is one with average sex instincts. Volanski v. United States (C.A. 6, 1957), 246 F. 2d 842, 844.3
[113]*113When the judge is the trier of fact in an obscenity case, the situation here, he must gauge the reaction of the community when and as if the “average person” viewed the material. United States v. One Reel of 35mm Color Motion Picture Film (C.A. 2, 1974), 491 F. 2d 956, 958. Expert testimony on community standards is not required. See Pinkus v. United States (1978), 436 U.S. 293, 302.4
The United States Supreme Court has stated that if the materials alleged to be obscene are placed into evidence, they “are the best evidence of what they represent” and that expert testimony is not necessary to establish that they are obscene unless the materials are “directed at such a bizarre deviant group that the experience of the trier of fact would be plainly inadequate to judge whether the material appeals to the prurient interest.” Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 56, fn. 6 (citing Mishkin v. New York [1966], 383 U.S. 502, 508-510). If the materials alleged to be obscene are admitted into evidence, there is no need for lay witnesses to testify whether they think those materials are obscene. Paris Adult Theatre I, supra, at 56. See Avery v. Maryland (D. Md. 1980), 515 F. Supp. 818, 824, affirmed without opinion (C.A. 4, 1981), 661 F. 2d 917, certiorari denied (1981), 454 U.S. 1081.
We must review the trial court’s decision whether to admit evidence under Evid. R. 701 according to an abuse-of-discretion standard, which has been defined as connoting “more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court.” Steiner v. Custer (1940), 137 Ohio St. 448, 19 O.O. 148, 31 N.E. 2d 855, paragraph two of the syllabus.
In reaching its decision, the trial court considered the testimony of all the witnesses, their interest in the case, their bias or prejudice, and their knowledge on the subject. There is no indication that the trial court simply counted the number of witnesses, or deferred solely to the opinions of the plaintiff’s witnesses who did testify, or based its decision on the theory that the community was simply against obscenity. Evid. R. 701 contemplates that the opinion testimony of the lay witness will be helpful. Undoubtedly, the trial judge thought that that was the case. Admission of such testimony was not required, but it was not an abuse of discretion to hear it. State v. Loshin (1986), 34 Ohio App. 3d 62, 67, 517 N.E. 2d 229, 234. Appellants’ fourth proposition of law is overruled.
Appellants’ sixth proposition of law is that the appellate court did not make an independent review of the facts. We disagree. Further, we now proceed with our own independent review which addresses the appellants’ [114]*114remaining arguments. Both the Ohio and the United States Constitutions protect freedom of speech.5 “All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties [of the First Amendment], unless excludable because they encroach upon the limited area of more important interests.” Roth v. United States (1957), 354 U.S. 476, 484. Justice Brennan, writing for the majority in Roth, aptly stated that “[s]ex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern. ’ ’ Id. at 487. Communication concerning sex is protected speech under the Ohio and United States Constitutions unless that communication meets the legal standard of obscenity. The definition of obscenity is a question of law and a legal term of art. Hamling v. United States (1974), 418 U.S. 87, 118.
Obscenity is one of the categories of communication “to which the majestic protection of the First Amendment does not extend because they ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ ” Bose Corp. v. Consumers Union of United States, Inc. (1984), 466 U.S. 485, 504 (quoting Chaplinsky v. New Hampshire [1942], 315 U.S. 568, 572).
However, courts have had great difficulty dealing with the persistent problems of defining obscenity. Justice Brennan, the author of the majority opinion in Roth, now maintains that no formulation adequately distinguishes obscene material from that protected by the First Amendment.6 Several state supreme courts have turned to the unique provisions of their state constitutions to hold that no law can prohibit, punish or censor “obscene” speech “in the interest of a uniform vision on how human sexuality should be [115]*115regarded or portrayed.” State v. Henry (1987), 302 Ore. 510, 525, 732 P. 2d 9, 18; State v. Kam (Hawaii 1988), 748 P. 2d 372. This court does not see any impediment in the Ohio Constitution to regulating communication that meets the legal definition of obscenity. The citizens of Ohio, and in this case, Urbana, through its elected city council, have manifested a strong desire that obscenity be regulated. Our role is to ensure that that regulation meets constitutional muster.
An appellate court must conduct an independent review of the record in a First Amendment case “to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited.” Bose, supra, at 505. In an obscenity case what appeals to “prurient interest” and what is “patently offensive” are essentially questions of fact. Miller, supra, at 30. However, the jury or the trial court does not have unbridled discretion to determine these factual questions. They are confined to assessing whether materials depicted or described are “patently offensive ‘hardcore’ sexual conduct.” Id. at 27. No one is to be prosecuted for depicting or describing mere nudity. Jenkins v. Georgia (1974), 418 U.S. 153, 161 (reversing the Supreme Court of Georgia’s affirmance of a jury’s finding that the movie “Carnal Knowledge” was obscene).
The Urbana ordinances dealing with obscenity are nearly identical to the obscenity statutes, R.C. 2907.01 and 2907.31 et seq.7 In State v. Burgun (1978), 56 Ohio St. 2d 354, 10 O.O. 3d 485, 384 N.E. 2d 255, this court held that the then current and nearly identically worded statute defining obscenity, R.C. 2907.01(F), must be read in pari materia with the requirements of Miller v. California, supra, since the requirements and examples in Miller are substantive constitutional law of First and Fourteenth Amendment magnitude. Hamling, supra, at 114. In accordance with such a synthesis the definition of obscenity in R.C. 2907.01(F) was held to be neither unconstitutionally overbroad nor void for vagueness. Burgun, supra; Turoso v. Cleveland Municipal Court (C.A. 6, 1982), 674 F. 2d 486, certiorari denied (1982), 459 U.S. 880. The same incorporation analysis which was followed in Burgun and approved in Turoso for R.C. 2907.01(F) applies with equal force to the current Urbana ordinance, U.C.C. Section 133.01(E).
The Turoso court set forth its analysis of how the Miller standard and the Ohio statute would interact. However, since there is some overlap between the provisions of the Urbana ordinance, the Ohio statute and the requirements of Miller, this opinion will set forth the analysis in an order different from that in Turoso, but will reach the same conclusion. The first step, and the one that is easiest to start with because of its objective nature, is to focus on the conduct requirement set forth in the second of the three guidelines in Miller, that is, whether the material or work “depicts or describes, in a patently offensive way, the sexual conduct specifically defined by the applicable state law * * Miller, supra, at 24.
The Miller court went on to give two “plain examples” of what could be defined by state statute as sexual conduct:
“(a) Patently offensive representations or descriptions of ultimate sex[116]*116ual acts, normal or perverted, actual or simulated.
“(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Miller, supra, at 25.
Those two examples are not exhaustive but indicative of the character of the acts which are subject to regulation. Ward v. Illinois (1977), 431 U.S. 767, 773; Janicki v. Pizza (C.A. 6, 1983), 722 F. 2d 1274, 1276 (construing as constitutional the Toledo municipal ordinances which included the Miller examples of sexual conduct in addition to other examples of sexual conduct). The community standards determine if the descriptions or depictions of sexual conduct go so far beyond the customary limits of candor that they are patently offensive.
U.C.C. Section 133.01 parallels R.C. 2907.01 and provides the following definitions:
“(A) ‘Sexual Conduct’ means vaginal intercourse between a male and female, and anal intercourse, fellatio, and cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal and anal intercourse.
“(B) ‘Sexual Contact’ means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.
“(C) ‘Sexual Activity’ means sexual conduct or sexual contact, or both.”
After ascertaining whether the material, work, or performance concerns the sexual conduct defined by state or local ordinance which in turn is limited to the same sort of, but not necessarily the exact, conduct set forth in the two Miller examples, the trier of fact should then address whether the first prong of the Miller test is met, that is, whether “ ‘the average person applying contemporary community standards,’ would find that the work, taken as a- whole, appeals to the prurient interest.” Miller, supra, at 24.
A “prurient” interest is not the same as a candid, normal or healthy interest in sex, rather it is a “ ‘shameful or morbid interest in nudity, sex, or excretion * * * [which] goes substantially beyond customary limits of candor in description or representation of such matters ***.'” Roth v. United States, supra, at 487, fn. 20 (quoting the definition of the A.L.I. Model Penal Code, Section 207.10(2) [Tent. Draft No. 6, 1957]). U.C.C. 133.01(E) gives five definitions of when any material or performance is obscene, as follows:
“When considered as a whole, and judged with reference to ordinary adults or, if it is designed for sexual deviates or other specially susceptible group, judged with reference to that group, any material or performance is ‘obscene’ if any of the following apply:
“(1) Its dominant appeal is prurient interest;
“(2) Its dominant tendency is to arouse lust by displaying or depicting sexual activity, masterbation [sic], sexual excitement or nudity in a way that tends to represent human beings as mere objects of sexual appetite;
“(3) Its dominant tendency is to arouse lust by displaying or depicting bestiality or extreme or bizarre violence, cruelty, or brutality;
“(4) Its dominant tendency is to appeal to scatological interest by displaying or depicting human bodily functions of elimination in a way that inspires disgust or revulsion in persons with ordinary sensibilities, without serving any genuine scientific, educa[117]*117tional, sociological, moral or artistic purpose;
“(5) It contains a series of displays or descriptions of sexual activity, masterbation [sic], sexual excitement, nudity, bestiality, extreme or bizarre violence, cruelty, or brutality, or human bodily functions of elimination, the cumulative effect of which is a dominant tendency to appeal to prurient or scatological interest, when the appeal to such an interest is primarily of its own sake or for commercial exploitation, rather than primarily for a genuine scientific, educational, sociological, moral or artistic purpose.”
The U.C.C. ordinance incorporates the first and third tests of Miller. It also gives some additional explicit examples of conduct which would constitute the sort of sexual activity that would be in accord with the second example of the second test or prong of Miller.
The third prong of the Miller test requires the material, work, or performance be such that when “taken as a whole, it lacks serious literary, artistic, political, or scientific value.” Miller, supra, at 24.
This third prong is not to be determined by a reference to community standards, in this case Champaign County. “The proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.” (Footnote omitted.) Pope v. Illinois (1987), 481 U.S. 497, 500-501.
A magazine must be looked at as a whole and not as a series of “works” resulting in a “volume.” Penthouse Internatl. Ltd. v. McAuliffe (C.A. 5, 1980), 610 F. 2d 1353, 1367, certiorari dismissed (1980), 447 U.S. 931. The Supreme Court first used the “taken as a whole” requirement as a substitute for the “isolated excerpt approach” in the 1957 Roth decision. Roth, supra, at 488-489. The inclusion of serious literary matter in significant proportions may preclude a finding that a magazine is obscene even though the magazine contains items, photographs for example, which standing alone would be found obscene under the Miller test. Penthouse v. McAuliffe, supra, at 1372. However, a quantitative counting of material is not the test. In Ginzburg v. United States (1966), 383 U.S. 463, the Supreme Court affirmed a conviction wherein the trial court had determined that only four of fifteen articles in a particular magazine were obscene. The Supreme Court did not address the specific articles but based its decision upon the magazine’s “characteristics as a whole, including [its] editorial formats, and not upon particular articles contained, digested, or excerpted in [it].” Id. at 466, fn. 5. The “taken as a whole” requirement is part of the first and third prongs of the Miller test.
A magazine may contain explicit sexual conduct subject to prohibition under the second requirement of Miller, and a trier of fact may determine that the average person in that community would find that the magazine as a whole appeals to the prurient interest, and that characteristic is the principal appeal of the material. Nevertheless, the magazine would not be legally obscene if, under the objective third prong of Miller, the trier of fact also concluded that a reasonable person could find “serious literary, artistic, political, or scientific value.” The only exception is when there is a sham attempt to insulate obscene material with non-obscene material. If the intent is to appeal to prurient in[118]*118terest then the mere insertion of other matter, irrelevant to the predominant theme of the material, will not prevent a determination that the material is obscene. “This would occur, for example, if the most obscene items conceivable were inserted between each of the books of the Bible.” Penthouse v. McAuliffe, supra, at 1368.
The requirements of Miller are cumulative and mandatory. They provide the analytical screen through which all challenged material must be filtered. If the Urbana ordinances defining obscenity and sexual conduct are construed in light of the requirements of Miller, they are constitutional as are the parallel Ohio statutes. Burgun; Turoso, supra.
We now turn to the challenged magazines.
The trial court ruled that Dr. Joe Scott, an assistant professor of sociology, was qualified as an expert in human sexuality, sociology and obscenity. Dr. Scott testified that all five magazines are considered in the magazine publishing trade as “male sophisticate” magazines as opposed to “explicit” magazines. The difference between the two categories is that explicit magazines show actual penetration, i.e., “there is nothing left to the imagination.” Dr. Scott testified that industry records show that approximately nine thousand adult male sophisticate magazines are sold each year in Champaign County. Within the “adult male sophisticate” category, there is a range of content, as is demonstrated by the exhibits.
Courts are not bound by the magazine industry’s determination of what is “explicit.” Miller, supra, at 25 states that “[p]atently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,” (emphasis added) may be subject to prohibition. The U.C.C. sections do not require that actual penetration be shown in order to find material obscene provided that all the other criteria are met. We hold that - actual penetration need not be shown in a photograph, for example, before the second test in Miller is satisfied. Accordingly, we hold that the industry practice of publishing photographs with a small black dot obscuring the actual contact between sexual organs and various orifices does not preclude a jury from finding representations of ultimate sexual acts or display of genitals to be patently offensive.
All five magazines contain either in the text, photographs, or their advertisements numerous depictions or descriptions of ultimate sexual acts, cunnilingus, fellatio and sodomy.8 They therefore contain “sexual conduct” as defined by U.C.C. Section 133.01(A) (R.C. 2907.01 [A]). Furthermore, the trial court and the court of appeals determined that the average person of Champaign County applying the contemporary standards of that community would find that each magazine as a whole appeals to the prurient interest. We do not disagree with that assessment. Finally, neither the magazines themselves nor [119]*119anything else in the record provides any basis to suggest that any reasonable person would find serious literary, artistic, political or scientific value in any of the magazines when taken as a whole. We do not discern any such value.
Accordingly, the judgment of the court of appeals is affirmed and the plaintiff is granted the declaratory relief he requests: the January 1986 editions of “Juggs,” “Nugget,” “Velvet”; the December 1985 edition of “Oui”; and the March 1986 edition of “Big Boobs” are legally obscene under the Urbana ordinances.9
Judgment affirmed.
Moyer, C.J., Holmes and Res-nick, JJ., concur.
Douglas, J., concurs in the judgment and paragraphs two, three, four and five of the syllabus.
Sweeney and H. Brown, JJ., dissent.