State v. Beam

The full case caption appears at the end of this opinion. HUFF, J.: William Joseph Beam appeals his convictions on one felony count and two misdemeanor counts of transfer of recorded sounds. We affirm. FACTUAL/PROCEDURAL BACKGROUND Frederick Beasley, an employee of the Motion Picture Association’s film security office received a complaint that Video Review of Myrtle Beach was selling or renting pirated video tapes. Thereafter, on September 21, 1995, Beasley rented three videos from Video Review. Trained to differentiate between legitimate and pirated videos through visual inspection of their cassettes, Beasley determined each video he rented was pirated. Beasley took the tapes to the Myrtle Beach Police Department. On October 5, Beasley returned the three tapes to Video Review and rented three more tapes and purchased one tape. Using the same visual inspection methods, he determined each of the four tapes he obtained that day were also pirated. Beasley then took the tapes to Detective John King of the Myrtle Beach Police Department. On October 25, Beasley accompanied police officers to Video Review as they executed a search warrant. Beasley and Ray Bowley, a contract employee of the Motion Picture Association, visually examined the tapes in the inventory and found more than two hundred counterfeit tapes. The majority of the counterfeit tapes were located in the new release section. The Horry County Grand jury indicted Beam, the owner of Video Review, with one felony count and two misdemeanor counts of transfer of recorded sounds. ⁽¹⁾ The judge qualified Beasley as an expert in identifying the validity of video tapes. Beasley testified that a legitimate film can be removed from its original cassette, placed in another cassette, and still be a legitimate video. This might be done if the cassette is damaged. If a cassette were changed, a visual examination of the cassette could no longer determine whether the video was legitimate. During cross-examination, Beam’s counsel asked Beasley about a switch point test. Beasley stated that a switch point test could be used to determine whether the film in a cassette was legal or pirated. He stated that the test could be performed with a cross pulse monitor, but that he had no expertise with that machine. The judge qualified Bowley as an expert in trademark, copyright, and piracy issues. During cross-examination, Beam’s counsel also asked Bowley about the switch point test. Bowley was familiar with the test and the machine used to conduct it. He stated an experienced technician could determine absolutely whether the film was genuine or counterfeit. Beam’s counsel then asked whether Bowley performed a switch point test on the tapes from Video Review. Bowley admitted not performing the test on any of the tapes. The transcript then reflects the following: Q: Okay. Well, this jury’s got a tough decision to make today. Don’t you think that it would require you to do that test if that’s available to shut the door on whether or not you’ve got a counterfeit tape or not when you’ve got that – - A: Would you like for me to do it now?