STAR NEWS, INC. v.
COMMONWEALTH OF VIRGINIA
JANUARY 6, 1998
Record No. 1785-96-1
STAR NEWS, INC.
COMMONWEALTH OF VIRGINIA
BY JUDGE RICHARD S. BRAY
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
John M. Folkes, Judge
Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
H. Louis Sirkin (Damian T. Horne; Sirkin, Pinales, Mezibov &
Schwartz; Horne, West & McMurtrie, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Richard Cullen,
Attorney General, on brief), for appellee.
Star News, Inc. (Star) was convicted for distributing obscene
material and four additional counts of like distribution as
second or subsequent offenses, each violations of Code ? 18.2?374, punishable
in accordance with Code ?? 18.2-380
and 18.2?381, respectively. On appeal, Star argues that (1) it
was erroneously convicted of second and subsequent offenses, and
(2) that Code ? 18.2-374
contravenes Article I, Section 12 of the Constitution of
Virginia. Finding no error, we affirm the convictions.
Star is a Virginia corporation engaged in the sale of books,
magazines and other publications and the sale and rental of
videotapes, much of which is adult-oriented. A grand jury
indicted Star for distributing obscene material through the sale
of a videotape on January 24, 1996, a misdemeanor pursuant to
Code ? 18.2-380.
The same grand jury also indicted Star for five later instances
of similar conduct, but as second or subsequent offenses, each a
felony under Code ? 18.2-381.
Star moved the trial court to dismiss all indictments, denouncing
the operative statutes as violative of both the federal and state
constitutions, and arguing also that the felony indictments
impermissibly charged distribution as second or subsequent
offenses although Star had not previously been convicted of such
crime. The trial judge denied the motion, and Star pled guilty to
five of the six indictments in accordance with a plea agreement
which preserved Star’s right to appeal "all issues decided
adversely to it."
Code ? 18.2-381
Any person, firm, association or corporation convicted of
a second or other subsequent offense under ?? 18.2-374 through
18.2-379 shall be guilty of a Class 6 felony. However, if the
person, firm, association or corporation convicted of such
subsequent offense is the owner of the business establishment
where each of the offenses occurred, a fine of not more than
$10,000 shall be imposed in addition to the penalties
otherwise prescribed in this section.
Star first contends that Code ? 18.2-381 applies only when
the accused has been convicted of a prior obscenity
offense because the penal statute must be strictly construed,
with any ambiguity resolved in Star’s favor.
Contrary to Star’s argument, however, an "enhanced
punishment may be applied where there are multiple convictions
for separate offenses in a simultaneous prosecution." Mason
v. Commonwealth, 16 Va. App. 260, 262-63, 430 S.E.2d 543, 544
(1993); see also Ansell v. Commonwealth, 219 Va.
759, 763, 250 S.E.2d 760, 763 (1979). The accused in Mason
was convicted of two distinct drug offenses in a single trial and
received an enhanced punishment for one offense as a "second
or subsequent offense" pursuant to Code ? 18.2-248(C). In affirming,
we determined that imposition of the enhanced penalty for the
offense did not require proof of a previous conviction for a like
crime. Mason, 16 Va. App. at 262-63, 430 S.E.2d at 544.
Thus, once Star was convicted for a violation of Code ? 18.2-374, the subsequent
sales were properly subject to the enhanced punishments
prescribed by Code ?
"Concededly, because the statute is penal in nature, it
must be strictly construed, and any ambiguity or reasonable doubt
as to its meaning must be resolved in [Star’s] favor. ‘This does
not mean, however, that [Star] is entitled to a favorable result
based upon an unreasonably restrictive interpretation of the
statute.’" Mason, 16 Va. App. at 262, 430 S.E.2d at
543. While statutes may specifically require prior conviction as
a predicate to enhanced punishment, see e.g., Code ?? 18.2-57.2; 18.2-67.5:2;
18.2-67.5:3; 18.2-104, the legislature did not include such
provision in Code ?
Star next argues that, although the Virginia obscenity
statutes do not violate the United States Constitution, Article
I, Section 12 of the Constitution of Virginia is more expansive
than the First Amendment, "providing that — ‘any citizen
may freely speak, write and publish his sentiments on all
subjects.’" Robert v. Norfolk, 188 Va. 413, 420, 49
S.E.2d 697, 700 (1948). Therefore, it reasons that, although
obscenity is not speech protected by the First Amendment, Miller
v. California, 413 U.S. 15 (1973), a different result would
pertain under the Virginia Constitution.
Again, Star’s contention is without merit. In Goldstein v.
Commonwealth, 200 Va. 25, 104 S.E.2d 66 (1958), the accused
maintained that Code ?
18-113, the predecessor to the instant statutes, "violate[d] the provisions of the First and Fourteenth Amendments to the
Constitution of the United States and the Due Process Clause of
the Constitution of Virginia with respect to freedom of the press
and speech." Id. at 27, 104 S.E.2d at 67. The Court
recognized that the crime of publishing and distributing obscene
materials must be defined with appropriate definiteness to
satisfy due process, but clearly held that obscenity is
unprotected by the Constitution of Virginia. Id.; see
also Bennefield v. Commonwealth, 21 Va. App. 729,
739-40, 467 S.E.2d 306, 311 (1996).
Accordingly, we affirm the convictions.
Benton, J., concurring and dissenting.
I concur in Parts I and III of the opinion. For the reasons I
have previously stated in Mason v. Commonwealth, 16 Va.
App. 260, 263-65, 430 S.E.2d 543, 544-46 (1993) (Benton, J.,
dissenting), I dissent from Part II. Therefore, I would reverse
the felony convictions and dismiss the indictments.
 Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.