Powell v. State , CR–09–1192.

CourtAlabama Court of Criminal Appeals
Writing for the CourtKELLUM, Judge.
Citation72 So.3d 1268
PartiesJohnson Augustus POWELLv.STATE of Alabama.
Docket NumberCR–09–1192.
Decision Date29 April 2011

72 So.3d 1268

Johnson Augustus POWELL
v.
STATE of Alabama.

CR–09–1192.

Court of Criminal Appeals of Alabama.

April 29, 2011.


[72 So.3d 1270]

Steven J. Goldstein, Oneonta, for appellant.Troy King, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.KELLUM, Judge.

The appellant, Johnson Augustus Powell, was convicted of one count of unlawful transport of articles containing sounds transferred without the consent of the owner, a violation of § 13A–8–81(a)(3), Ala.Code 1975. The trial court sentenced Powell to three years' imprisonment. The trial court also ordered Powell to pay a $15,000 fine, $1,750 in restitution each to the Recording Industry Association of America (“RIAA”) and the Motion Picture Association of America (“MPAA”), $50 to the crime victims compensation fund, attorneys fees, and court costs.

The evidence presented at trial established the following pertinent facts. On February 23, 2008, Deputies Charles Turner and Jason Paul of the Blount County Sheriff's Department were patrolling Interstate 65 in Blount County when they observed a vehicle being driven by Powell traveling above the posted speed limit. The deputies initiated a traffic stop, during which Deputy Turner asked Johnson for, and was given, consent to search Johnson's vehicle. Deputy Paul searched the vehicle and discovered three duffel bags filled with a large quantity of what Deputy Paul believed to be unlawful, or “pirated,” copies of CDs and DVDs. According to Deputies Turner and Paul, the CDs and DVDs were not packaged in a manner typical for CDs and DVDs, did not contain the standard licensing and copyright information, and were labeled with a black marker.

The deputies arrested Johnson and called Deputy Roger Dabbs of the Blount

[72 So.3d 1271]

County Sheriff's Department to assist them. After arriving on the scene, Deputy Dabbs advised Powell his Miranda 1 rights, and after waiving those rights, Powell decided to cooperate with the deputies. According to Dabbs, Powell told the officers that he was in the business of buying and selling CDs and DVDS and that he would buy the items for $3 apiece and would sell them for $5. At the time he was arrested, Powell was driving to a gasoline station to meet someone to sell the CDs and DVDs. Powell also told the officers that he sold the items in North Carolina, South Carolina, Georgia, Tennessee, and Alabama. Deputies Turner, Paul, and Dabbs all testified at trial. On cross-examination, each deputy admitted that he did not know if Powell had permission from the owners of the copyrighted material to reproduce or sell the CDs and DVDs in his possession.

James H. Duff, an investigator with the MPAA and the RIAA, also testified for the State at trial. Duff explained that on behalf of the RIAA and MPAA he analyzes and investigates law-enforcement cases involving unauthorized copying of music and movies that belong to the members constituting the RIAA and MPAA. Duff analyzed the CDs and DVDs recovered from Powell's vehicle and explained that he believed that the CDs and DVDs were unauthorized copies of the copyrighted material. Duff based this conclusion on his belief that the CDs and DVDs were “pirated”—i.e., the CDs and DVDs did not include “the artist work or the sleeve or the jewel case” associated with industry-produced CDs or DVDs. (R. 140.) Additionally, Duff believed the CDs and DVDs to be pirated because the CDs and DVDs contained copyrighted material that had been “burned” onto rewritable discs using blank CDs and DVDs, which he referred to as CDRs and DVDRs. Duff explained that CDs and DVDs released pursuant to RIAA and MPAA standards contain copyrighted material that had been “pressed” into the CD or DVD. Duff contrasted a “burned” CD or DVD from a “pressed” CD or DVD by explaining that the former stores information on the top of the CD or DVD, while the latter stores information in the middle of the CD or DVD.2

The following discussion regarding the music and movie industry's usage of rewritable CDs and DVDs took place during Duff's testimony:

“[The State]: Based upon your training, your experience, your education and your employment with these two [associations], do any of the licensees that are members of the two [associations] ever give permission to put their data, their intellectual property, on recordable [CDs] or [DVDs]?

“[Defense Counsel]: Objection, Your Honor. There is no possible way he could know what their permission is. He is not a member of the organization. It is all speculative.

“THE COURT: I'll let him answer.

“[Duff]: I have been trained on their practices and investigated many cases, and they do not allow any product to be put on a re-writable CD or DVD.

“[The State]: Do you know why that is, sir?

“[Duff]: I do not know that.

“[The State]: You can say that is true throughout the United States industry-wide?

[72 So.3d 1272]

“[Duff]: That is industry-wide with the [motion-picture industry] and the [recording-industry associations].

“[The State]: And any intellectual data that is placed on anything other than those [DVDs] and [CDs] that you just described would be pirated. Would that be a fair statement?

“[Duff]: I think they can sell or give away their rights to another label or something like that. Like an artist will change labels, but it still has to come down to be put on a pressed CD or a pressed DVD.

“[The State]: Not a recordable CD or DVD?

“[Duff]: Not a recordable CD or DVD.”

(R. 142–43.)

On cross-examination, Duff testified that the RIAA and MPAA were not the owners of the copyrights in question, but that he, as an agent of the RIAA and MPAA, was a representative of the owners. Powell questioned Duff extensively about the digital distribution of copyrighted material, but Duff admitted that he was not very familiar with the rules and regulations regarding digital distribution and could not testify whether the music and movies contained on the CDs and DVDs found in Powell's vehicle had been legally digitally downloaded. Duff repeated his testimony that it was his belief, based on his training and instructions from the RIAA and MPAA, that copyrighted material “cannot be put on a CDR or a DVDR.” (R. 145.) When asked if one could copy lawfully purchased music onto a CDR for a noncommercial purpose, Duff testified yet again that it was his belief that the RIAA and the MPAA prohibit such action. Powell introduced into evidence information obtained from the RIAA's Web site indicating that it is legal for an individual to copy music onto a CDR so long as it is not being done for a commercial purpose. Duff admitted that he had no knowledge of the CDs and DVDs contained in Powell's personal collection.

At the conclusion of Duff's testimony, the State rested. Powell then moved for a judgment of acquittal based on the State's failure to prove that the copyrighted material contained in the CDs and DVDs was transferred without the consent of the owners. The trial court denied Powell's motion, and Powell rested without calling any witnesses on his behalf. After both sides delivered their closing arguments, the trial court instructed the jury on the applicable law. The jury convicted Powell of the unlawful transport of articles containing sounds transferred without consent of the owner as charged in his indictment. Powell appealed.

I.

Powell argues that the trial court erroneously denied his motion to dismiss his indictment on the grounds that § 13A–8–81(a)(3), Ala.Code 1975, is impermissibly vague. Powell contends that the statute does not fairly apprise an ordinary person of what specific acts are criminalized and also alleges that the statute allows for arbitrary enforcement. In support of these allegations, Powell refers to the discussions at trial in which the court, the State, and Powell's defense attorney could not agree on the plain meaning of the statute, as well as the police officers' admissions that they would not enforce this law under certain situations.

In Barber v. Jefferson County Racing Ass'n, Inc., 960 So.2d 599 (Ala.2006), the Alabama Supreme Court explained:

“ ‘In reviewing the constitutionality of a statute, we “approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment

[72 So.3d 1273]

of a coordinate branch of the government.” ’ Moore v. Mobile Infirmary Ass'n, 592 So.2d 156, 159 (1991) (quoting Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944)). Overcoming that presumption is a heavy burden, which is borne by the party challenging the validity of the statute. Densmore v. Jefferson County, 813 So.2d 844, 856 (Ala.2001); Jefferson County Bd. of Health v. City of Bessemer, 293 Ala. 237, 301 So.2d 551 (1974).”

960 So.2d at 615.

In Vaughn v. State, 880 So.2d 1178 (Ala.Crim.App.2003), this Court set forth the following guidelines for addressing constitutional challenges on vagueness grounds:

“ ‘ “The doctrine of vagueness ... originates in the due process clause of the Fourteenth Amendment, see Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), and is the basis for striking down legislation which contains insufficient warning of what conduct is unlawful, see United States v. National Dairy Products Corporation, 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963).

“ ‘ “Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989, 996 (1954). A vague statute does not give adequate ‘notice of the required conduct to one who would avoid its penalties,’ Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367, 371 (1951), is not ‘sufficiently focused to forewarn of both its reach and coverage,’ United States v. National Dairy Products Corporation, 372 U.S. at 33, 83 S.Ct. at 598, 9 L.Ed.2d...

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7 practice notes
  • Hughes v. State, CR-17-0768
    • United States
    • Alabama Court of Criminal Appeals
    • February 7, 2020
    ...is unconstitutional as applied to his conduct.’ " Wesson v. State, 208 So. 3d 1160, 1162 (Ala. Crim. App. 2015) (quoting Powell v. State, 72 So. 3d 1268, 1278 (Ala. Crim. App. 2011) ).315 So.3d 1148 Section 13A-11-241(a), Ala. Code 1975, provides: "A person commits the crime of cruelty to a......
  • Gilbert v. State, CR–13–0839.
    • United States
    • Alabama Court of Criminal Appeals
    • March 18, 2016
    ...as applied to him 'bears the burden of proving that [the statute] is unconstitutional as applied to his conduct.' Powell v. State, 72 So.3d 1268, 1278 (Ala.Crim.App.2011). The Texas Court of Appeals has explained:" 'A statute may be found unconstitutional "as applied" to a specific set of f......
  • Vann v. State, CR–12–0037.
    • United States
    • Alabama Court of Criminal Appeals
    • December 20, 2013
    ...1195 [ (Ala.Crim.App.2003) ], quoting Timmons [ v. City of Montgomery ], 641 So.2d [1263,] 1264 [ (Ala.Crim.App.1993) ].”Powell v. State, 72 So.3d 1268, 1280 (Ala.Crim.App.2011). In the present case, Detective Orr testified that if a sex offender stays in contact with the sex-offender unit ......
  • State v. Solomon, CR-16-1189
    • United States
    • Alabama Court of Criminal Appeals
    • July 13, 2018
    ...as applied to his [or her] conduct.’ " Wesson v. State, 208 So.3d 1160, 1162 (Ala. Crim. App. 2015) (quoting Powell v. State, 72 So.3d 1268, 1278 (Ala. Crim. App. 2011) ). In Wesson, this Court explained:" ‘A statute may be found unconstitutional "as applied" to a specific set of facts or "......
  • Request a trial to view additional results
7 cases
  • Hughes v. State, CR-17-0768
    • United States
    • Alabama Court of Criminal Appeals
    • February 7, 2020
    ...is unconstitutional as applied to his conduct.’ " Wesson v. State, 208 So. 3d 1160, 1162 (Ala. Crim. App. 2015) (quoting Powell v. State, 72 So. 3d 1268, 1278 (Ala. Crim. App. 2011) ).315 So.3d 1148 Section 13A-11-241(a), Ala. Code 1975, provides: "A person commits the crime of cruelty to a......
  • Gilbert v. State, CR–13–0839.
    • United States
    • Alabama Court of Criminal Appeals
    • March 18, 2016
    ...as applied to him 'bears the burden of proving that [the statute] is unconstitutional as applied to his conduct.' Powell v. State, 72 So.3d 1268, 1278 (Ala.Crim.App.2011). The Texas Court of Appeals has explained:" 'A statute may be found unconstitutional "as applied" to a specific set of f......
  • Vann v. State, CR–12–0037.
    • United States
    • Alabama Court of Criminal Appeals
    • December 20, 2013
    ...1195 [ (Ala.Crim.App.2003) ], quoting Timmons [ v. City of Montgomery ], 641 So.2d [1263,] 1264 [ (Ala.Crim.App.1993) ].”Powell v. State, 72 So.3d 1268, 1280 (Ala.Crim.App.2011). In the present case, Detective Orr testified that if a sex offender stays in contact with the sex-offender unit ......
  • State v. Solomon, CR-16-1189
    • United States
    • Alabama Court of Criminal Appeals
    • July 13, 2018
    ...as applied to his [or her] conduct.’ " Wesson v. State, 208 So.3d 1160, 1162 (Ala. Crim. App. 2015) (quoting Powell v. State, 72 So.3d 1268, 1278 (Ala. Crim. App. 2011) ). In Wesson, this Court explained:" ‘A statute may be found unconstitutional "as applied" to a specific set of facts or "......
  • Request a trial to view additional results

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