{
  "id": 8525434,
  "name": "STATE OF NORTH CAROLINA v. CINEMA BLUE OF CHARLOTTE, INC., a North Carolina Corporation, aka CINEMA BLUE ADULT ENTERTAINMENT CENTER, aka CINEMA BLUE OF CHARLOTTE, aka CINEMA BLUE; JIM ST. JOHN; and CURTIS RENE PETERSON",
  "name_abbreviation": "State v. Cinema Blue of Charlotte, Inc.",
  "decision_date": "1990-06-05",
  "docket_number": "No. 8926SC765",
  "first_page": "628",
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    "judges": [
      "Judges Johnson and Eagles concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. CINEMA BLUE OF CHARLOTTE, INC., a North Carolina Corporation, aka CINEMA BLUE ADULT ENTERTAINMENT CENTER, aka CINEMA BLUE OF CHARLOTTE, aka CINEMA BLUE; JIM ST. JOHN; and CURTIS RENE PETERSON"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Chief Judge.\nIn their first two arguments on appeal, defendants contend the trial court erred in excluding expert testimony by Dr. Joseph Scott. Defendants sought to have Dr. Scott testify as to 1) the proper community standard for obscenity in Mecklenburg County and 2) the community acceptance of other sexually explicit materials \u201ccomparable\u201d to those which defendants were convicted of disseminating. Defendants correctly point out that \u201cappropriate expert testimony\u201d may be offered \u201cto explain to juries what they otherwise would not understand\u201d in an obscenity case. State v. Anderson, 322 N.C. 22, 26-28, 366 S.E.2d 459, 463, cert. denied, \u2014 U.S. \u2014, 109 S.Ct. 513 (1988). However, the trial court has wide discretion in determining whether to admit expert testimony in such cases. Id. We have reviewed the record on appeal and find no abuse of discretion by the trial judge in excluding this testimony. Defendants\u2019 argument has no merit.\nDefendants next argue that the trial court should have sustained their objection to \u201cevidence of events at Cinema Blue in 1985.\u201d They claim that because the trial court decided to \u201cdismiss charges [against defendants] for conduct that occurred in 1985,\u201d testimony by Captain Thomas Barnes of the Charlotte Police Department regarding observations and purchases he made in 1985 at Cinema Blue was more prejudicial than probative. Thus, according to defendants, such testimony should have been excluded under G.S. 8C-1, Rule 703. We disagree.\nTo support a charge of conspiracy to disseminate obscenity, the State is required to prove scienter on the part of the particular defendant. To satisfy this element of the offense, each defendant must have at least a general familiarity with the sexually explicit nature of the materials in question. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887 (1974). Circumstantial evidence which suggests such familiarity is therefore admissible. In the instant case, testimony indicating that Cinema Blue had sold sexually explicit materials for several years prior to 1988 tends to show that the corporate defendant and the individual defendants, both of whom began working for Cinema Blue before 1988, were aware that the store was selling sexually explicit materials at the time of the alleged conspiracy. Consequently, the trial court properly allowed Captain Barnes\u2019 testimony.\nIn defendants\u2019 fourth argument, based on assignment of error number nine, they complain that \u201c[t]he trial court erred in admitting testimony of arrests, plea bargains and prior convictions of Cinema Blue\u2019s clerks.\u201d Defendants claim this testimony violated the rule which bars convictions and guilty pleas by a codefendant from being admitted as evidence of a defendant\u2019s guilt. State v. Campbell, 296 N.C. 394, 205 S.E.2d 228 (1979). Nevertheless, our Supreme Court has held that a guilty plea by a codefendant is admissible to show that the codefendant was not being treated too leniently in exchange for testifying against the defendant. State v. Rothwell, 308 N.C. 782, 303 S.E.2d 798 (1983). Furthermore, testimony concerning prior arrests, plea bargains, and convictions by employees of Cinema Blue is admissible under G.S. 8C-1, Rule 404(b) if it tends to show motive, opportunity, intent, preparation, plan, or knowledge on the part of a defendant. In the case at bar, testimony by Grady Burr and David Schoch, two codefendants, was properly admitted under the rule in Rothwell to strengthen their credibility. Testimony by Mr. Schoch and former employee Ernest Smith regarding their past arrests and plea arrangements was properly allowed because it tends to show the intent and plan on the part of defendant Cinema Blue to engage in a conspiracy to disseminate obscenity.\nDefendants also contend the trial court erred \u201cin allowing testimony of hearsay declarations of a codefendant.\u201d They argue that David Schoch was improperly allowed to repeat \u201cincriminating statements about Defendant St. John purportedly made to him by Defendant Peterson.\u201d The essence of these alleged statements was that defendant St. John was Schoch\u2019s new boss. Nevertheless, we find no conceivable prejudice to defendants resulting from their admission. Mr. Schoch\u2019s testimony, even absent the statements in question, clearly portrays his relationship with St. John as one between employee and boss. Defendants\u2019 assignment of error is therefore overruled.\nDefendants next complain the trial court acted improperly by dismissing defendant St. John\u2019s motion to sever and by allowing the State to join all defendants and charges for one trial. Defendants point out that Mr. St. John was not alleged to have participated in a conspiracy to disseminate until after April 1987, and they argue that denial of his motion to sever, in view of evidence admitted at trial regarding events in 1985, prejudiced his defense.\nG.S. 15A-926(a) allows consolidation of separate offenses for trial when the offenses charged are \u201cbased on the same act or transaction or on a series of transactions connected together or constituting parts of a single scheme or plan.\u201d Subsection (b) similarly permits joinder of separate defendants for trial when the several offenses charged are transactionally related. This requirement is satisfied when the offenses in question all arose out of a single conspiracy. State v. Silva, 304 N.C. 122, 282 S.E.2d 449 (1981).\nIn addition to the transactional requirement, the trial court must determine that none of the defendants would be deprived of a fair trial by being tried together or by facing more than one charge at the same trial. State v. Williams, 74 N.C. App. 695, 329 S.E.2d 705 (1985). However, when the offenses are transac-tionally related, the trial court\u2019s ruling on a motion for joinder or severance is discretionary and, absent a showing of abuse, will not be disturbed on appeal. State v. Wilson, 57 N.C. App. 444, 291 S.E.2d 830, cert. denied, 306 N.C. 563, 294 S.E.2d 375 (1982); State v. Lake, 305 N.C. 143, 286 S.E.2d 541 (1982).\nIn the present case, all three defendants were charged as members of a single conspiracy to disseminate obscenity. The remaining charges were all for disseminating obscenity in some capacity and clearly arose out of this conspiracy. Thus, the proper standard for review by this Court is abuse of discretion. We have reviewed the record and find no such abuse by the trial judge in granting the State\u2019s motion for joinder or in dismissing defendant St. John\u2019s motion to sever. Defendant\u2019s argument has no merit.\nDefendants next contend the trial court erred in its instructions to the jury. They complain that the court should have given several instructions proposed by defendants which address the scope of First Amendment protection and elements of the standard for obscenity. We have examined the instructions given by the trial judge and find them to be sufficient. The instructions proposed by defendants but refused by the trial court were not necessary to a proper determination on the issue of obscenity. Consequently, this assignment of error is overruled.\nIn assignment of error number seventeen, based on exceptions eleven through nineteen in the record, defendants claim the trial judge erred at sentencing by finding as a factor in aggravation that defendants \u201cinduced others to participate in the commission of\u201d each offense of conspiracy to disseminate and dissemination as an accessory before the fact. Such findings, according to defendants, violated G.S. 15A-1340.4(a)(1) which provides that \u201c[e]vidence necessary to prove an element of the offense [charged] may not be used to prove any factor in aggravation. . . .\u201d We disagree.\nWhile G.S. 15A-1340.4(a)(l) indeed prohibits basing an aggravating factor on circumstances essential to establishment of a defendant\u2019s guilt for a particular crime, our Supreme Court has indicated that many of the factors listed in the statute \u201ccontemplate a duplication in proof without violating [that] proscription. . . .\u201d State v. Thompson, 309 N.C. 421, 307 S.E.2d 156 (1983). In the case of a criminal conspiracy, the State must show, by competent evidence, only that the defendant entered into an agreement with one or more other persons to do an unlawful act or to do a lawful act by unlawful means or in an unlawful manner. State v. Massey, 76 N.C. App. 660, 334 S.E.2d 71 (1985). Although essential evidence of the agreement may also suggest that the accused induced others to participate in the conspiracy, the fact that he did so is not required to establish his guilt as a conspirator. With respect to a conviction for being an accessory before the fact, the State must show that defendant either gave advice or counsel to the principal or did some act which aided the principal in the commission of the offense. Once again, however, it does not matter that certain evidence essential to establish the giving of aid or advice by defendant also tends to show he persuaded the principal to commit the offense in question. Such duplication in proof does not prohibit the trial judge from using the evidence to find a factor in aggravation. We therefore conclude that the trial judge did not err at sentencing.\nDefendants next argue that the trial court erred by denying their motions to dismiss because \u201c[insufficient evidence [was] presented to support conspiracy or accessory before the fact charges.\u201d They contend that the State failed to produce any evidence of \u201cscienter\u201d to support defendants\u2019 convictions.\nIn ruling on a motion to dismiss pursuant to G.S. 15A-1227, the trial court must consider the evidence presented in the light most favorable to the State, and the State must be given the benefit of every reasonable inference to be drawn therefrom. State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981). If there is evidence, direct or circumstantial, from which a jury could reasonably find that defendant had committed the offense charged, the motion to dismiss must be denied. State v. Simmons, 57 N.C. App. 548, 291 S.E.2d 815 (1982). In the present case, the record tends to show that the Cinema Blue store sold only sexually explicit materials and that much of these materials were in plain view of anyone who entered the store. The record also indicates that the individual defendants were supervisors of the store and had visited the store on a number of occasions for business purposes. We believe that this evidence constituted sufficient proof of scienter to withstand a motion to dismiss. Defendants\u2019 argument has no merit.\nFinally, defendants assign as error the trial court\u2019s denial of several pretrial motions to dismiss the charges against them arguing that G.S. 14-190.1 is unconstitutionally overbroad and vague. Nevertheless, this Court has held G.S. 14-190.1 to be neither vague nor overbroad because of the specificity with which it defines which types of \u201csexual conduct\u201d are considered obscene. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305 (1986), aff\u2019d, 320 N.C. 485, 358 S.E.2d 383 (1987). This argument has no merit.\nDefendant had a fair trial free from prejudicial error.\nNo error.\nJudges Johnson and Eagles concur.",
        "type": "majority",
        "author": "HEDRICK, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Harold M. White, Jr., and Assistant Attorney General Thomas J. Ziko, for the State.",
      "Lee J. Klein for defendants, appellants.",
      "Nelson Casstevens, Jr., for defendant, appellant Cinema Blue of Charlotte, Inc.",
      "George Daly for defendant, appellant Jim St. John.",
      "Calvin Murphy for defendant, appellant Curtis Rene Peterson."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CINEMA BLUE OF CHARLOTTE, INC., a North Carolina Corporation, aka CINEMA BLUE ADULT ENTERTAINMENT CENTER, aka CINEMA BLUE OF CHARLOTTE, aka CINEMA BLUE; JIM ST. JOHN; and CURTIS RENE PETERSON\nNo. 8926SC765\n(Filed 5 June 1990)\n1. Obscenity \u00a7 3 (NCI3d)\u2014 disseminating obscenity \u2014 exclusion of expert testimony\nThe trial court in an obscenity prosecution did not abuse its discretion in excluding expert testimony as to the proper community standard for obscenity in Mecklenburg County and the community acceptance of sexually explicit materials comparable to those allegedly disseminated by defendants.\nAm Jur 2d, Lewdness, Indecency, and Obscenity \u00a7 34.\n2. Obscenity \u00a7 3 (NCI3d)\u2014 conspiracy to disseminate obscenity\u2014 prior sales of sexually explicit materials\nTestimony indicating that a store sold sexually explicit materials for several years prior to 1988 was admissible to show that the corporate and individual defendants were aware that the store was selling sexually explicit materials at the time of an alleged conspiracy to disseminate obscenity in 1988.\nAm Jur 2d, Evidence \u00a7 323; Lewdness, Indecency, and Obscenity \u00a7\u00a7 15, 38.\n3. Criminal Law \u00a7 79.1 (NCI3d)\u2014 guilty pleas of codefendants\u2014 admissibility to strengthen credibility\nTestimony by two codefendants concerning their guilty pleas to the obscenity charges for which defendants were being tried was admissible to strengthen their credibility as witnesses.\nAm Jur 2d, Evidence \u00a7\u00a7 323-326, 666, 667; Lewdness, Indecency, and Obscenity \u00a7\u00a7 15, 38.\n4. Criminal Law \u00a7 79 (NCI3d)\u2014 obscenity case \u2014past arrests and plea bargains of store employees \u2014admissibility to show intent and plan\nTestimony by two former employees of defendant adult entertainment center concerning their past arrests and plea arrangements in obscenity cases was admissible to show intent and plan on the part of defendant to engage in a conspiracy to disseminate obscenity. N.C.G.S. \u00a7 8C-1, Rule 404(b).\nAm Jur 2d, Evidence \u00a7\u00a7 323-326, 666, 667; Lewdness, Indecency, and Obscenity \u00a7\u00a7 15, 38.\n5. Criminal Law \u00a7 322 (NCI4th)\u2014 joinder of all defendants and charges for trial\nThe trial court did not abuse its discretion in granting the State\u2019s motion to join all defendants and charges for trial in a prosecution for conspiracy to disseminate obscenity and dissemination of obscenity and in denying one defendant\u2019s motion for a severance where all three defendants were charged as members of a single conspiracy and the dissemination charges arose out of this conspiracy. N.C.G.S. \u00a7 15A-926(a).\nAm Jur 2d, Conspiracy \u00a7 39.\n6. Criminal Law \u00a7 1133 (NCI4th)\u2014 conspiracy \u2014 accessory before the fact \u2014 inducement of others aggravating factor\nThe trial court\u2019s finding as an aggravating factor for conspiracy to disseminate obscenity and dissemination of obscenity as an accessory before the fact that defendants induced others to participate in each offense was not improperly based on evidence necessary to prove an element of each offense in violation of N.C.G.S. \u00a7 15A-134p.4(a)(l).\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\n7. Obscenity \u00a7 3 (NCI3d)\u2014 conspiracy to disseminate obscenity\u2014 accessory before the fact to dissemination of obscenity\u2014 sufficient evidence of scienter\nThe State presented sufficient evidence of scienter to support convictions of the individual defendants on charges of conspiracy to disseminate obscenity and dissemination of obscenity as accessories before the fact where the State\u2019s evidence tended to show that defendants were supervisors of an adult entertainment store and had visited the store on a number of occasions for business purposes, that the store sold only sexually explicit materials, and that many of those materials were in plain view of anyone who entered the store.\nAm Jur 2d, Lewdness, Indecency, and Obscenity \u00a7 15.\n8. Obscenity \u00a7 1 (NCI3d)\u2014 obscenity statute \u2014 constitutionality\nThe statute proscribing the dissemination of obscenity, N.C.G.S. \u00a7 14-190.1, is not unconstitutionally vague and overbroad.\nAm Jur 2d, Lewdness, Indecency, and Obscenity \u00a7\u00a7 3-8.\nAPPEAL by defendants from Gray (Marvin KJ, Judge. Judgments entered 24 February 1989 in Superior Court, MECKLEN-BURG County. Heard in the Court of Appeals 7 May 1990.\nDefendants were charged in proper bills of indictment with multiple counts of dissemination of obscenity in violation of G.S. 14-190.1 and with common law conspiracy to disseminate obscenity. Each defendant was convicted by a jury on two counts of dissemination of obscenity and one count of common law conspiracy to disseminate. At the sentencing hearing, the trial court found factors in aggravation and mitigation with respect to each offense and concluded in each case that the aggravating factors outweighed the mitigating factors. From judgments imposing prison sentences totaling six years on each individual defendant and fining defendant Cinema Blue $150,000, defendants appealed.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Harold M. White, Jr., and Assistant Attorney General Thomas J. Ziko, for the State.\nLee J. Klein for defendants, appellants.\nNelson Casstevens, Jr., for defendant, appellant Cinema Blue of Charlotte, Inc.\nGeorge Daly for defendant, appellant Jim St. John.\nCalvin Murphy for defendant, appellant Curtis Rene Peterson."
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