State v. Smith

• Decision Date: 03 November 1988
• Docket Number: No. 163A88,163A88
• Citation: 323 N.C. 439,373 S.E.2d 435
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Ernest Eugene SMITH, III. STATE of North Carolina v. David Michael SCHOCH.

Page 435

373 S.E.2d 435

323 N.C. 439

STATE of North Carolina v. Ernest Eugene SMITH, III.

STATE of North Carolina v. David Michael SCHOCH.

No. 163A88.

Supreme Court of North Carolina.

Nov. 3, 1988.

Lacy H. Thornburg, Atty. Gen. by Thomas J. Ziko, Asst. Atty. Gen., Raleigh, for State.

James, McElroy & Diehl, P.A. by Edward T. Hinson, Jr., Charlotte, for defendant-appellant Smith.

Ferguson, Stein, Watt, Wallas, and Adkin, P.A. by John W. Gresham, Charlotte, for defendant-appellant Schoch.

FRYE, Justice.

The dispositive issue presented on this appeal is whether the Court of Appeals erred when it affirmed the convictions of both defendants, holding that they were properly convicted of separate offenses arising out of the dissemination of each item determined by the jury to be obscene. The issue presented is one of first impression before this Court. The Court of Appeals decided that in enacting N.C.G.S. § 14-190.1 the legislature intended that a defendant could be convicted of a separate offense for each obscene item disseminated in a single transaction. We disagree and therefore reverse the Court of Appeals.

The undisputed facts are as follows:

On the afternoon of 1 October 1985, Officer H.F. Frye of the Charlotte City Police entered the Cinema Blue Bookstore in Charlotte. Defendant Schoch was the manager and defendant Smith worked as a clerk. The officer purchased a package of magazines and a film from Schoch. Defendant Smith took no part in this first sale. In a second sale later that afternoon, Sergeant T.G. Barnes, also of the Charlotte City Police, entered the same bookstore and purchased from both defendants Schoch and Smith two magazines. Defendant Schoch was subsequently prosecuted on five indictments charging him with disseminating obscenity in violation of the North Carolina Obscenity Statute, N.C.G.S. § 14-190.1 (one count for each of the three magazines and two films he sold to Officer Frye and Sergeant Barnes). Defendant Smith was tried on three indictments charging violation of the same statute (one count for each of the two magazines and one film he, together with Schoch, had sold to Sergeant Barnes). Neither defendant contests that he sold the materials which were found by the jury to be obscene.

In pertinent part N.C.G.S. § 14-190.1(a) provides:

It shall be unlawful for any person, firm or corporation to intentionally disseminate obscenity. A person, firm or corporation disseminates obscenity within the meaning of this article if he or it:

(1) sells, delivers or provides or offers or agrees to sell, deliver or provide, any obscene writing, picture, record or other representation or embodiment of the obscene; or

....

(3) publishes, exhibits or otherwise makes available anything obscene; or

(4) exhibits, presents, rents, sells, delivers, or provides, or offers or agrees to exhibit, present, rent or to provide: any obscene still or motion picture, film, film strip or projection slide, or sound recording, sound tape, or sound track, or any matter or material of whatever form which is a representation, embodiment, performance, or publication of the obscene.

N.C.G.S. § 14-190.1 (1986 & Cum.Supp.1987).

The statute makes it unlawful to intentionally disseminate obscenity. One disseminates obscenity within the meaning of the statute, by selling, delivering, providing or offering or agreeing to sell, deliver or provide "any obscene writing, picture, record or other representation or embodiment of the obscene." N.C.G.S. § 14-190.1(a)(1). The word "disseminate", depending on its context, may have a singular or plural connotation. This suggests that the General Assembly in enacting N.C.G.S. § 14-190.1 may have intended to punish the unlawful dissemination of each obscene item or intended that a single penalty attach to the unlawful conduct of intentionally disseminating obscenity. The statute makes no differentiation of offenses based upon the quantity of the obscene items disseminated. See Commonwealth v. Beacon Distributors, 14 Mass.App. 570, 441 N.E.2d 541 (1982).

The Court of Appeals properly focused on the critical underlying question: What is the allowable unit of prosecution under N.C.G.S. § 14-190.1? The State contends, and defendants concede, that the allowable unit of prosecution is within the discretion of the legislature, subject only to constitutional limitations. However, defendants argue that when the legislature does not clearly express legislative intent, the court must determine the allowable unit of prosecution. In doing so, any ambiguity should be resolved in favor of lenity. Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955).

In the instant case the majority opinion of the Court of Appeals impliedly adopted the rule of statutory construction in Bell, but found no ambiguity. Nevertheless, the language of N.C.G.S. § 14-190.1 exhibits "no clear expression of legislative intent to punish separately and cumulatively for each and every obscene item disseminated, regardless of the number of transactions involved." State v. Smith, 89 N.C.App. 19, 24, 365 S.E.2d 631, 634 (1988) (Wells, J., dissenting) (emphasis in original).

In Bell, a landmark case regarding the allowable unit of prosecution, the issue was whether the simultaneous interstate transportation of two women in violation of the Mann Act constituted two offenses or only one. Finding that the defendant in Bell could only be tried for one offense, the United States Supreme Court stated:

When Congress has the will it has no difficulty in expressing it when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit. When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or antisocial conduct. It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. This in no wise implies that language used in criminal statutes should not be read with the saving grace of common sense with which other enactments, not cast in technical language, are to be read. Nor does it assume that offenders against the law carefully read the penal code before they embark on crime. It merely means that if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses when we have no more to go on than the present case furnishes.

Bell at 83-84, 99 L.Ed. at 910-11.

Bell established a rule of construction to be applied in federal cases: when the legislature fails to establish the allowable unit of prosecution under a statute, the courts must resolve the ambiguity in favor of lenity. The principle enunciated in Bell was applied in Maxwell v. State, 152 Ga.App. 776, 264 S.E.2d 254 (1979). There, a police officer purchased a theatre ticket from an adult theatre and viewed the showing of two feature films and four previews of coming attractions. A jury convicted defendants of six counts of distributing obscene material based on the showing of six different films in a single, uninterrupted and continuous showing. The trial court vacated the verdict and sentences. The Georgia Court of Appeals, relying largely on Bell, agreed with the trial court and stated that a single, uninterrupted, continuous showing of multiple films as part of a single exhibition constitutes only one count of distributing obscene materials in violation of the Georgia obscenity statutes.

Similarly, the court in Commonwealth v. Beacon Distributors, 14 Mass.App. 570, 441 N.E.2d 541 (1982), reversed on multiplicity grounds multiple convictions in obscenity cases. There the police raided a warehouse maintained by one of the defendants and seized twenty different obscene films. The grand jury returned fourteen separate indictments in twenty counts each. From the eight defendants charged with possession of obscenity, and the twenty films seized, the State prosecuted on a total of 280 separate and distinct charges. The issue before the court, as in the instant case, was whether the legislature intended to punish the unlawful possession of each obscene material or intended to attach a single penalty to the unlawful possession of obscene materials. The court concluded that none of the indictments alleged more than a single offense because the unlawful possession of more than one obscene material in one place constitutes a single offense under the state's obscenity statute.

Other courts have similarly held that a single transaction involving obscene materials constitutes but one offense. See State v. Cimino, 33 Conn.Sup. 680, 682, 366 A.2d 1168 (1976); State v. Hungerford, 278 So.2d 33 (La.1973); State v. Getman, 293 Minn. 11, 195 N.W.2d 827 (1972), vacated on other grounds, 413 U.S. 912, 93 S.Ct. 3044, 37 L.Ed.2d 1029 (1973); State v. PeeDee News Co., 286 S.C. 562, 336 S.E.2d 8 (1985); State v. Davis, 654 S.W.2d 688 (Tenn.Crim.App.1983). Contra State v. Wilds, 88 N.C.App. 69, 362 S.E.2d 605 (1987); Educational Books, Inc. v. Commonwealth of Va., 228 Va. 392, 323 S.E.2d 84 (1984); City of Madison v. Nickel, 66 Wis.2d 71, 223 N.W.2d 865 (1974).

Applying the rule of Bell, which we find persuasive, we agree with the statement of Judge Wells in his dissenting opinion that "until the General Assembly unambiguously declares a contrary intent, we...