Com. v. Lotten Books, Inc.

• Citation: 428 N.E.2d 145,12 Mass.App.Ct. 625
• Parties: COMMONWEALTH v. LOTTEN BOOKS, INC. (and a companion case 1 ).
• Decision Date: 06 January 1982
• Court: Appeals Court of Massachusetts

Page 145

428 N.E.2d 145

12 Mass.App.Ct. 625

COMMONWEALTH v. LOTTEN BOOKS, INC. (and a companion case ¹).

Appeals Court of Massachusetts, Suffolk.

Argued June 8, 1981.

Decided Nov. 20, 1981.

Further Appellate Review Denied Jan. 6, 1982.

Regina L. Quinlan, for Lotten Books, Inc.

Leonard A. Lucas, Boston, for Albert F. Pulli.

Peter Grabler, Legal Asst. to the Dist. Atty., Needham (Sharon D. Meyers, Asst. Dist. Atty., with him) for the Commonwealth.

Before HALE, C. J., and GRANT and BROWN, JJ.

HALE, Chief Judge.

The defendants were charged with violation of G.L. c. 272, § 29, to wit, the possession of obscene films, knowing them to be obscene, and with intent to disseminate them. The defendants were convicted following a jury-waived trial in the Boston Municipal Court, their motions for required findings of not guilty having been denied. Thereafter each filed a motion for reconsideration or for a new trial, the issues being the same as those raised in their earlier motions. The judge found the questions of law raised by those motions so important that pursuant to Mass.R.Crim.P. 34, 378 Mass. --- (1979), ² he reported ³ the following questions for this court's determination:

"1. Does the evidence, as introduced, constitute dissemination under Chapter 272, Section 29 as it pertains to the corporate defendant?

"2. Does the evidence, as introduced, constitute dissemination under Chapter 272, Section 29 as it pertains to the individual defendant?

"3. Does the evidence, as introduced, establish possession by the individual defendant under the provisions of Chapter 272, Section 29?

"4. Whether the Equal Protection Clause is violated where the individual defendant is not exempted from prosecution under the provisions of G.L. c. 272, §§ 29, 32."

The judge stated that the answers to these questions would determine his action on the defendants' motions.

The facts are undisputed and have been taken from a consolidated report of the court below. Defendant Lotten Books, Inc. (Lotten Books), is a corporation having a place of business at 6 Boylston Street in the adult entertainment district of Boston (also known as the Combat Zone). It operates a commercial bookstore at that location with viewing booths wherein patrons may view films by depositing quarters in a coin box. Outside the store there are numerous signs, some indicating that admission is limited to adults only, and others indicating that "Peep Shows" and "X-Rated Movies" are on the premises.

Detective Carey, who viewed the films before seeking a search warrant for them, described the interior of the viewing booths as slightly larger than a telephone booth, with the door of each booth used as the viewing screen. Each booth contained two projectors which were located in locked compartments above the booth which held the films in question. The films were on continuous-run cassettes so that they never needed rewinding. For each quarter deposited a viewer would see approximately one and one half minutes of film.

A search warrant was obtained and executed on June 23, 1978. The defendant Pulli was observed on that day at the cashier's counter making change for customers. He also had been observed at the cashier's counter on the previous day when Detective Carey had viewed the films. During the execution of the search warrant, the police asked Pulli for the keys to the cabinets where the films were located. Pulli did not have the keys, nor were they on the premises. Pulli was allowed to make a phone call to one Anthony Russo, who later arrived at the store with the keys to the locked cabinets. There was no evidence at the trial that Pulli was an officer or director of Lotten Books, nor was there evidence that he had any responsibilities other than those of cashier and person in charge of the premises.

The court found the films to be obscene ⁴, describing them as containing explicit depictions of sexual conduct, focusing primarily on sexual activity and portraying a minimal story. The defendants filed a waiver in the trial court of any question of obscenity and argue here only the issues raised by the reported questions.

The Corporate Defendant.

For Lotten Books to have been found guilty as charged, the court below had to have found (1) that the material was obscene; (2) that Lotten Books possessed the material; (3) that it knew the material to be obscene; and (4) that it intended to disseminate the material. Reported question no. 1 concerns only the fourth element of the crime, and Lotten Books does not question the sufficiency of the evidence on the first three elements, arguing only that there can be no dissemination as a matter of law because the use of peep show devices involves only the individual conduct of the person depositing the quarter into the device. We reject that contention and answer reported question no. 1 "yes."

The Legislature has defined "disseminate" in G.L. c. 272, § 31 (as appearing in St. 1974, c. 430, § 12), as: "to import, publish produce, print, manufacture, distribute, sell, lease, exhibit or display." These terms must be given their usual and accepted meaning so long as it is consistent with the statutory purpose. Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369, 361 N.E.2d 1239 (1977) (defining "books" and "magazines"). Webster's Third New International Dictionary 2105-2106 (1971) uses "show" as a synonym for "display" and defines "show" as "to cause or permit to be seen." Black's Law Dictionary 514 (5th ed. 1979) defines "exhibit" as: "To show or display; to offer or present for inspection." On the reported facts it is clear that the films were "exhibited" or "displayed" to the patrons who deposited their coins in the machines. See People v. Campise, 242 Cal.App.2d Supp. 905, 51 Cal.Rptr. 815 (1966) (defendant guilty of exhibiting obscene peep-show movie films). ⁵

The Individual Defendant.

All of the elements of the charge as to the defendant Pulli were the same as the elements required to be found as to Lotten Books. Pulli also does not question the sufficiency of the evidence on elements 1 and 3 above. Turning to question 2, we answer it in the affirmative for the same reasons we gave in answering question 1. Since persons in charge of establishments that disseminate obscene material have been found guilty of that dissemination-Commonwealth v. Kocinski, --- Mass.App. ---, Mass.App.Ct.Adv.Sh. (1981) 21, 414 N.E.2d 378 (obscene dancing)-and other cases apparently have assumed that such facts establish dissemination without addressing the issue-see, e. g. Commonwealth v. Thureson, 371 Mass. 387, 357 N.E.2d 750 (1976) (obscene peep shows); Commonwealth v. Grant, 7 Mass.App. 203, 386 N.E.2d 1280 (1979) (obscene dancer); Commonwealth v. Bono, 7 Mass.App. 849, 384 N.E.2d 1260 (1979) (obscene magazine)-we have no doubt that Pulli disseminated the films to the patrons of the Lotten Bookstore. ⁶

We turn next to reported question 3, which concerns the second element of the offense. Pulli argues that the facts do not support a finding that he possessed the films exhibited to the patrons of the Lotten Bookstore. We disagree and answer reported question 3 "yes."

There is no statutory definition of "possession" under G.L. c. 272, § 29, and no case has been brought to this court's attention (and we have found none) which defines "possession" under § 29. In similar contexts, it has been recognized that what constitutes a significant external relationship between a person and an item which gives rise to the illegal possession of that item is not a question susceptible to a short generalized answer. See generally Annot., 91 A.L.R.2d 810 (1963). Since we are dealing with a criminal statute, the term must be construed strictly, with any ambiguity resolved in favor of the defendant. Commonwealth v. Devlin, 366 Mass. 132, 137-138, 314 N.E.2d 897 (1974). Opinion of the Justices, 372 Mass. 874, 876, 363 N.E.2d 251 (1977). The term, however, must also be construed with reference to the other phrases in the statute to form a "harmonious enactment effectual to accomplish its manifest purpose." Selectmen of Topsfield v. State Racing Commn., 324 Mass. 309, 313, 86 N.E.2d 65 (1949).

The question of possession is usually to be determined by the trier of fact. Commonwealth v. Guerro, 357 Mass. 741, 752, 260 N.E.2d 190 (1970) (possession of motor vehicle master keys). It is settled law that ownership is not a requirement for finding possession so long as the person charged with possession had access to the items and could exercise dominion and control over them. Id. Two or more persons can possess illegal items so long as each has the requisite access, dominion and control. Commonwealth v. Tilley, 306 Mass. 412, 417-418, 28 N.E.2d 245 (1940) (illegal master keys). Commonwealth v. Duffy, 4 Mass.App. 655, 659, 357 N.E.2d 330 (1976) (illegal drugs). We are not dealing with a property definition of "possession," but instead with a definition which will best reflect the intent of the Legislature.

We cannot say that the judge erred as a matter of law in finding that Pulli possessed ⁷ the films. The reported facts show that Pulli was the cashier and the one in charge of the bookstore. He therefore had sufficient control and dominion over the operations which resulted in the dissemination of the films that it could also be found that he possessed the obscene films. In answering reported question 2, "yes", we consider it clear that Pulli could have been found guilty if mere dissemination had been charged. ⁸ It would be anomalous to find that an employee who was an integral part of an establishment which disseminated obscene materials and who took an active part in supplying the customers of the establishment with the obscene material could not be found to have "possessed" the materials which he was engaged in distributing. In fact, our answer to question 2 that Pulli disseminated the films implicitly recognizes a degree of dominion over the...