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  "name": "STATE OF NORTH CAROLINA v. GENE MOORE",
  "name_abbreviation": "State v. Moore",
  "decision_date": "1999-02-02",
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    "judges": [
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      "STATE OF NORTH CAROLINA v. GENE MOORE"
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      {
        "text": "MARTIN, Judge.\nOn 21 September 1992, Onslow County adopted an \u201cOrdinance to Regulate Adult Businesses and Sexually Oriented Businesses.\u201d Article IV of the ordinance defines \u201csexually oriented business\u201d as\nany business activity, club or other establishment within which the exhibition, showing rental or sale of materials distinguished or characterized by an emphasis on material depicting, describing or exhibiting specified anatomical areas or relating to specified sexual activities is permitted. Sexually oriented businesses shall include, but are not limited to: adult arcades, adult bookstores, adult motion picture theaters, adult theaters, massage parlors, and/or adult video rental/sale stores as defined by this ordinance.\nSuch businesses are prohibited from operating within 1,000 feet in any direction from a residence, house of worship, public school or playground, or other adult or sexually oriented business.\nDefendant is owner and operator of three businesses, \u201cVideo Star,\u201d \u201cBaby Dolls,\u201d and \u201cPrivate Pleasures,\u201d located at 5527 Richlands Highway in Onslow County. On 5 December 1995, Onslow County initiated an action against defendant seeking, by injunctive relief and an order of abatement, to enforce compliance with the ordinance. By order dated 18 January 1996, nunc pro tunc 15 December 1995, Judge Louis B. Meyer found that defendant was operating a sexually oriented business in violation of the ordinance and entered a preliminary injunction commanding defendant to bring his business into compliance with, and prohibiting him from violating, the ordinance.\nUpon motion of Onslow County alleging defendant\u2019s willful violation of the terms of the preliminary injunction, an order was issued 29 July 1997 requiring defendant to appear and show cause why he should not be held in criminal contempt. At the hearing, held 4 September 1997, the State offered evidence tending to show that defendant owns the three businesses, which are located fifty to seventy-five feet from a private residence. A deputy sheriff testified that while working in an undercover capacity, he entered the \u201cVideo Star\u201d on 11 July 1997 and purchased a sexually explicit video which defendant stipulated \u201chad an emphasis on specified sexual activities and specified anatomical areas as those terms are defined by Article 7 [sic] of the Onslow County Ordinances entitled \u2018Sexually Oriented Businesses.\u2019 \u201d On 25 July 1997 the same undercover officer visited \u201cPrivate Pleasures\u201d where he paid fifty dollars to have a nude female employee dance in an erotic manner for thirty minutes. On 26 July 1997 the officer testified that he entered \u201cBaby Dolls\u201d and paid fifty dollars to have a nude female employee perform sexual touching for thirty minutes.\nThe trial court found defendant guilty of criminal contempt for his failure to abide by the terms of the preliminary injunction. Defendant was publicly censured, fined $500.00, and sentenced to thirty days in jail. Defendant appeals.\nBy his first two assignments of error, defendant contends the show cause order was insufficient to give notice of the specific charges against him. The show cause order required that he show cause why he should not be held in criminal contempt for his failure to abide by the terms of the preliminary injunction, in that he \u201chas continued to operate sexually oriented businesses on the premises owned by the Defendant at 5527 Richlands Highway, which premises is within 1,000 feet of a residence.\u201d Defendant argues that his constitutional due process rights entitle him to reasonable notice of the specific charges against him, and that he \u201chas no way of knowing which of the various types of sexually oriented businesses he is accused of operating because the order to show cause does not specify the acts allegedly committed.\u201d\nHaving failed to object at the hearing as to the adequacy of the charge against him, defendant has not preserved this issue for appeal. N.C.R. App. R 10(b)(1) provides, in pertinent part:\nIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party\u2019s request, objection or motion.\nNor has defendant preserved the issue for plain error review by \u201cspecifically and distinctly\u201d contending plain error in his assignments of error as required by N.C.R. App. P. 10(c)(4). \u201c[W]here a defendant fails to assert plain error in his assignments of error... he has waived even plain error review.\u201d State v. Gary, 348 N.C. 510, 518, 501 S.E.2d 57, 63 (1998).\nNext, defendant argues the preliminary injunction which he was accused of violating is void because it does not comply with the provisions of G.S. \u00a7 1A-1, Rule 65(d). He contends the order failed to \u201cset forth the reasons for its issuance,\u201d was not \u201cspecific in terms,\u201d and did not \u201cdescribe in reasonable detail. . . the act or acts enjoined or restrained.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 65(d) (1990).\nA similar argument, advanced by defendant in his appeal in Onslow County v. Moore, 129 N.C. App. 376, 499 S.E.2d 780 (1998), has been rejected without discussion by another panel of this Court. \u201cWe have carefully reviewed Moore\u2019s remaining assignments of error and find them to be without merit.\u201d Id. at 389, 499 S.E.2d at 789. \u201cSubsequent actions are precluded when a court of competent jurisdiction has already reached a final judgment on the merits of a controversy.\u201d State v. Lewis, 63 N.C. App. 98, 102, 303 S.E.2d 627, 630 (1983), affirmed, 311 N.C. 727, 319 S.E.2d 145 (1984). One panel of this Court \u201cmay not overrule the decision of another panel on the same question in the same case.\u201d In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989). This assignment of error is overruled.\nNext, defendant complains the evidence was insufficient to show that he wilfully operated a sexually oriented business in knowing violation of the preliminary injunction. The sufficiency of the evidence, however, has not been preserved for review because defendant failed to move for dismissal at trial. N.C.R. App. P. 10(b)(3) (1998); State v. Richardson, 341 N.C. 658, 462 S.E.2d 492 (1995); State v. Futrell, 112 N.C. App. 651, 436 S.E.2d 884 (1993). Nonetheless, defendant argues that G.S. \u00a7 15A-1446(d)(5) provides appellate review of the sufficiency of the evidence even when there is no objection or motion at trial. However, our Supreme Court has specifically held: \u201c \u2018To the extent that N.C.G.S. \u00a7 15A-1446(d)(5) is inconsistent with N.C.R. App. P. 10(b)(3), the statute must fail.\u2019 \u201d Richardson at 677, 462 S.E.2d at 504 (quoting State v. Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 493 (1987)). Nor has defendant preserved this issue for plain error review. N.C.R. App. P. 10(c)(4); State v. Gary, supra.\nEven assuming the sufficiency of the evidence was properly before us, our review of the evidence, considered in the light most favorable to the State, State v. Bates, 313 N.C. 580, 330 S.E.2d 200 (1985), reveals substantial evidence to show defendant\u2019s operation of a sexually oriented business in willful violation of the preliminary injunction. Indeed, defendant\u2019s statement to the undercover officer that he was the owner of the three businesses and his stipulation that the video which he personally sold to the officer \u201chad an emphasis on specified sexual activities or specified anatomical areas as those terms are defined\u201d by the ordinance, provide substantial evidence that defendant wilfully operated a sexually oriented business in violation of the preliminary injunction.\nBy his next assignment of error, defendant challenges the constitutionality of the ordinance, contending it is vague and overbroad and violates his rights to freedom of expression guaranteed by the First Amendment to the United States Constitution. The constitutionality of the Onslow County \u201cOrdinance to Regulate Adult Businesses and Sexually Oriented Businesses\u201d has been previously considered by this Court in Maynor v. Onslow County, 127 N.C. App. 102, 488 S.E.2d 289, appeal dismissed, 347 N.C. 268, 493 S.E.2d 458, cert. denied, 347 N.C. 400, 496 S.E.2d 385 (1997). We stated:\n[I]t is clear from the County Commission\u2019s resolution that the Ordinance was not intended to restrict any communication or protected speech or to deny adults access to the distributors of sexually oriented entertainment. The Ordinance is an attempt to regulate the location and the access to these materials. \u201cThe mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating [an] ordinance[ ].\u201d Young v. American Mini Theatres, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310, 321, reh\u2019g denied, 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155 (1976). It is within the constitutional powers of a county or municipality to adopt regulations which limit the areas in which adult entertainment establishments may operate. D.G. Restaurant Corp. v. City of Myrtle Beach, 953 F.2d 140, 145 (4th Cir. 1991); Young, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310; City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29, reh\u2019g denied, 475 U.S. 1132, 106 S.Ct. 1663, 90 L.Ed.2d 205 (1986).\nId. at 106-07, 488 S.E.2d at 292. We held the ordinance to be a valid \u201cregulation of the place and manner of expression only and . . . not violative of the First Amendment.\u201d Id. at 108, 488 S.E.2d at 293. See Onslow County v. Moore, 129 N.C. App. 376, 499 S.E.2d 780 (1998) (holding ordinance does not violate First Amendment). Moreover, having stipulated that the video he sold to the undercover officer met the specific definitions of the ordinance, defendant had no uncertainty about the applicability of the ordinance to him and, therefore, his objections based on vagueness are also overruled. Id.\nFinally, defendant assigns error to the denial of his motion for mistrial, made after the State attempted to offer evidence of defendant\u2019s previous convictions for operating a sexually oriented business. Although the trial court sustained defendant\u2019s objection to the evidence and excluded it, defendant contends the State\u2019s proffer of the evidence so tainted the proceeding as to irreparably prejudice him. We disagree. The trial court advised defendant that the excluded evidence would not be considered and, where the court sits without a jury, it is presumed that the judge disregarded any incompetent evidence. In re Paul, 84 N.C. App. 491, 353 S.E.2d 254, cert. denied, 319 N.C. 673, 356 S.E.2d 779 (1987), cert. denied, 484 U.S. 1004, 98 L.Ed.2d 646 (1988). Defendant has not rebutted the presumption and has shown no prejudice. A mistrial should be granted only for \u201c \u2018such serious improprieties as would make it impossible to attain a fair and impartial verdict,\u2019 \u201d State v. Sanders, 347 N.C. 587, 601, 496 S.E.2d 568, 577 (1998) (quoting State v. Stocks, 319 N.C. 437, 441, 355 S.E.2d 492, 494 (1987)), and a trial court\u2019s ruling on a motion for a mistrial is not reviewable on appeal unless there is a clear showing of gross or manifest abuse of discretion. State v. Sorrells, 33 N.C. App. 374, 235 S.E.2d 70, disc. review denied, 293 N.C. 257, 237 S.E.2d 539 (1977). No abuse of discretion has been shown by defendant and this assignment of error is overruled.\nDefendant\u2019s remaining assignment of error has been abandoned. N.C.R. App. R 28(a); State v. Rhyne, 124 N.C. App. 84, 478 S.E.2d 789 (1996).\nAffirmed.\nChief Judge EAGLES and Judge McGEE concur.",
        "type": "majority",
        "author": "MARTIN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Michael F. Easley, by Assistant Attorney General Gail E. Weis, for the State.",
      "Jeffrey S. Miller and John W. Ceruzzi, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. GENE MOORE\nNo. COA98-360\n(2 February 1999)\n1. Appeal and Error\u2014 preservation of issues \u2014 no objection\u2014 plain error not asserted in assignments of error\nDefendant waived even plain error review in an action in which he was found guilty of criminal contempt for failing to abide by a preliminary injunction regarding operation of adult businesses where he did not object at the hearing to the adequacy of the notice of the specific charges against him and did not specifically and distinctly contend plain error in his assignments of error.\n2. Appeal and Error\u2014 decision by previous Court of Appeals panel \u2014 binding\nDefendant\u2019s contention that the preliminary injunction which he was accused of violating was void because it did not comply with the provisions of N.C.G.S. \u00a7 1A-1, Rule 65(d) was overruled because a similar argument by defendant in Onslow County v. Moore, 129 N.C. App. 376, was rejected without discussion by another panel of the Court of Appeals. One panel of the Court of Appeals may not overrule the decision of another panel on the same question in the same case.\n3. Obscenity\u2014 operation of sexually oriented business \u2014 violation of injunction \u2014 sufficiency of evidence\nThere was substantial evidence to show defendant\u2019s operation of a sexually oriented business was in willful violation of a preliminary injunction where defendant stated to an undercover officer that he was the owner of the three businesses at issue and stipulated that the video which he personally sold to the officer had an emphasis on specified sexual activities or specified anatomical areas as those terms are defined by the ordinance.\n4. Obscenity\u2014 sexually oriented business \u2014 freedom of expression\nAn ordinance prohibiting sexually oriented businesses from operating within a thousand feet in any direction from a residence, house of worship, public school, playground, or other adult or sexually oriented business was not vague or overbroad and did not violate defendant\u2019s rights to freedom of expression guaranteed by the First Amendment to the United States Constitution. The ordinance has been held to be a valid regulation of the place and manner of expression only and not violative of the First Amendment; moreover, defendant stipulated that the video he sold to the undercover officer met the specific definitions of the ordinance, so that he had no uncertainty about the applicability of the ordinance to him.\n5. Trials\u2014 mistrial \u2014 nonjury proceeding \u2014 excluded evidence\nThe trial court did not err in a nonjury proceeding by denying defendant\u2019s motion for a mistrial after the State attempted to offer evidence of previous convictions and the court sustained defendant\u2019s objection and advised defendant that the excluded evidence would not be considered. Where the judge sits without a jury, it is presumed that the judge disregards any incompetent evidence.\nAppeal by defendant from judgment entered 4 September 1997 by Judge Jay D. Hockenbury in Onslow County Superior Court. Heard in the Court of Appeals 4 January 1999.\nAttorney General Michael F. Easley, by Assistant Attorney General Gail E. Weis, for the State.\nJeffrey S. Miller and John W. Ceruzzi, for defendant-appellant."
  },
  "file_name": "0197-01",
  "first_page_order": 231,
  "last_page_order": 238
}
