Star News, Inc. v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
STAR NEWS, INC.
MEMORANDUM OPINION * BY
v. Record No. 1785-96-1 JUDGE RICHARD S. BRAY
JANUARY 6, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
John M. Folkes, Judge
H. Louis Sirkin (Damian T. Horne; Sirkin,
Pinales, Mezibov & Schwartz; Horne, West &
McMurtrie, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Star News, Inc. (Star) was convicted for distributing
obscene material and four additional counts of like distribution
as second or subsequent offenses, each violations of Code
§ 18.2-374, punishable in accordance with Code §§ 18.2-380 and
18.2-381, respectively. On appeal, Star argues that (1) it was
erroneously convicted of second and subsequent offenses, and (2)
that Code § 18.2-374 contravenes Article I, Section 12 of the
Constitution of Virginia. Finding no error, we affirm the
convictions.
I.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Star is a Virginia corporation engaged in the sale of books,
magazines and other publications and the sale and rental of
videotapes, much of which is adult-oriented. A grand jury
indicted Star for distributing obscene material through the sale
of a videotape on January 24, 1996, a misdemeanor pursuant to
Code § 18.2-380. The same grand jury also indicted Star for five
later instances of similar conduct, but as second or subsequent
offenses, each a felony under Code § 18.2-381.
Star moved the trial court to dismiss all indictments,
denouncing the operative statutes as violative of both the
federal and state constitutions, and arguing also that the felony
indictments impermissibly charged distribution as second or
subsequent offenses although Star had not previously been
convicted of such crime. The trial judge denied the motion, and
Star pled guilty to five of the six indictments in accordance
with a plea agreement which preserved Star's right to appeal "all
issues decided adversely to it."
II.
Code § 18.2-381 provides that:
Any person, firm, association or corporation
convicted of a second or other subsequent
offense under §§ 18.2-374 through 18.2-379
shall be guilty of a Class 6 felony.
However, if the person, firm, association or
corporation convicted of such subsequent
offense is the owner of the business
establishment where each of the offenses
occurred, a fine of not more than $10,000
shall be imposed in addition to the penalties
otherwise prescribed in this section.
2
Star first contends that Code § 18.2-381 applies only when the
accused has been convicted of a prior obscenity offense because
the penal statute must be strictly construed, with any ambiguity
resolved in Star's favor.
Contrary to Star's argument, however, an "enhanced
punishment may be applied where there are multiple convictions
for separate offenses in a simultaneous prosecution." Mason v.
Commonwealth, 16 Va. App. 260, 262-63, 430 S.E.2d 543, 544
(1993); see also Ansell v. Commonwealth, 219 Va. 759, 763, 250
S.E.2d 760, 763 (1979). The accused in Mason was convicted of
two distinct drug offenses in a single trial and received an
enhanced punishment for one offense as a "second or subsequent
offense" pursuant to Code § 18.2-248(C). In affirming, we
determined that imposition of the enhanced penalty for the
offense did not require proof of a previous conviction for a like
crime. Mason, 16 Va. App. at 262-63, 430 S.E.2d at 544. Thus,
once Star was convicted for a violation of Code § 18.2-374, the
subsequent sales were properly subject to the enhanced
punishments prescribed by Code § 18.2-381.
"Concededly, because the statute is penal in nature, it must
be strictly construed, and any ambiguity or reasonable doubt as
to its meaning must be resolved in [Star's] favor. 'This does
not mean, however, that [Star] is entitled to a favorable result
based upon an unreasonably restrictive interpretation of the
statute.'" Mason, 16 Va. App. at 262, 430 S.E.2d at 543. While
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statutes may specifically require prior conviction as a predicate
to enhanced punishment, see e.g., Code §§ 18.2-57.2; 18.2-67.5:2;
18.2-67.5:3; 18.2-104, the legislature did not include such
provision in Code § 18.2-381.
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III.
Star next argues that, although the Virginia obscenity
statutes do not violate the United States Constitution, Article
I, Section 12 of the Constitution of Virginia is more expansive
than the First Amendment, "providing that -- 'any citizen may
freely speak, write and publish his sentiments on all subjects.'"
Robert v. Norfolk, 188 Va. 413, 420, 49 S.E.2d 697, 700 (1948).
Therefore, it reasons that, although obscenity is not speech
protected by the First Amendment, Miller v. California, 413 U.S.
15 (1973), a different result would pertain under the Virginia
Constitution.
Again, Star's contention is without merit. In Goldstein v.
Commonwealth, 200 Va. 25, 104 S.E.2d 66 (1958), the accused
maintained that Code § 18-113, the predecessor to the instant
statutes, "violate[d] the provisions of the First and Fourteenth
Amendments to the Constitution of the United States and the Due
Process Clause of the Constitution of Virginia with respect to
freedom of the press and speech." Id. at 27, 104 S.E.2d at 67.
The Court recognized that the crime of publishing and
distributing obscene materials must be defined with appropriate
definiteness to satisfy due process, but clearly held that
obscenity is unprotected by the Constitution of Virginia. Id.;
see also Bennefield v. Commonwealth, 21 Va. App. 729, 739-40, 467
S.E.2d 306, 311 (1996).
Accordingly, we affirm the convictions.
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Affirmed.
6
Benton, J., concurring and dissenting.
I concur in Parts I and III of the opinion. For the reasons
I have previously stated in Mason v. Commonwealth, 16 Va. App.
260, 263-65, 430 S.E.2d 543, 544-46 (1993) (Benton, J.,
dissenting), I dissent from Part II. Therefore, I would reverse
the felony convictions and dismiss the indictments.
7