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People v. Better

OCTOBER 10, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

LINDA BETTER ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES MAHER, JR., Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 7, 1975.

After a bench trial, defendants were convicted of obscenity in violation of section 11-20 of the Criminal Code. (Ill. Rev. Stat. 1973, ch. 38, par. 11-20.) Stalle was fined $100, Better $200, and Cardamon $400. They appealed, contending that: (1) the Illinois obscenity statute is unconstitutional; (2) the acts with which they were charged were not proven obscene as defined by statute; and (3) the trial court applied an improper standard of contemporary community standards. In addition, Cardamon contends that: (1) the complaints filed against him improperly charged an offense, and (2) he was not proven guilty beyond a reasonable doubt. Likewise, Better and Stalle contend that it was not established that they had danced for gain, or that they acted knowingly.

The following evidence pertinent to this appeal was adduced.

Lieutenant Frank Braun, for the State

He is a Cook County sheriff's police officer and commander of the Vice Control Unit. He has been a police officer for twelve years and head of his unit for two. At about 10:15 p.m. on March 21, 1974, he was with an assistant State's Attorney and Bruce Frasch, a police investigator, at the Upstairs Lounge, a bar located at 8550 W. Golf Road in Niles, Illinois. Inside he saw John Cardamon and Linda Better. Better was dancing on a dimly lit stage which was one foot above the floor. Cardamon was stationed in a position from which he could observe the stage. The lighting, though dim, was sufficient for the witness to see the performance on stage. The onlookers inside the lounge were mostly couples ranging from 20 to 45 years of age. Some unescorted men were also present.

Better had a brassiere-type garment on the upper part of her body and a G-string on the lower part. As she danced to juke-box music, she removed the brassiere and the G-string, leaving only a small patch over her pubic area. She placed the G-string between her legs and simulated male masturbation with it. She then removed the pubic patch and danced in the nude for about three minutes. At the conclusion of her performance, the assistant State's Attorney accompanying Braun determined that the dancing was illegal, whereupon Braun arrested both Better and Cardamon. While being questioned at the police station, Better indirectly stated in Braun's presence that the dancers at the lounge were hired. According to Braun, "The girls stated who hired them. * * * Miss Better did."

On March 25, 1974, at about 10:30 p.m. the witness was again present at the Upstairs Lounge and saw Better, Cardamon and Stalle on the premises. He made no written reports concerning his observation of occurrences at the lounge on either March 21 or 25.

Investigator Bruce Frasch, for the State

He is a Cook County sheriff's police investigator and is assigned to the Vice Control Unit. He has been a police officer for five years. Prior to March 21, 1974, he had been to the Upstairs Lounge on at least three occasions and had observed Better dancing in the nude. At about 10:20 p.m. on March 21, he was at the lounge with an assistant State's Attorney and with Lieutenant Braun. He substantially corroborated Braun's testimony concerning the stage lighting, the lounge patrons, Better's dancing, and the assistant State's Attorney's role in Better's and Cardamon's arrests. He also testified that the lighting, though dim, was sufficient for him to observe Better's nudity and that she while nude, touched her breasts and the area of her vagina with her hands. In addition, during the nude part of her performance amidst cheering and hollering, two couples mounted the stage and attempted to disrobe, but were stopped by Cardamon. Frasch believed him to be the manager.

On March 25, 1974, the witness was again present at the lounge and saw Better, Cardamon and Stalle on the premises. Cardamon was standing near the service bar.

Investigator Joseph Dornbos, for the State

He is a Cook County sheriff's police investigator and is assigned to the Vice Control Unit. He has been a police officer for four years. On March 25, 1974, he was with an assistant State's Attorney at the Upstairs Lounge and saw Better, Cardamon and Stalle inside. He substantially corroborated Braun's and Frasch's testimony concerning the stage lighting. On March 25, both Better and Stalle danced in the nude for about two or three minutes, and each, while nude, fondled her breasts and vaginal area. Cardamon was near the service area of the bar and had an unobstructed view of the stage, which was about 30 to 40 feet away from where he was standing. The lighting was sufficient for Dornbos, who was also about 30 to 40 feet away from the stage, to observe the dancing. After the assistant State's Attorney determined that the dancing was obscene, Better, Cardamon and Stalle were arrested.

On March 27, 1974, he again was present at the Upstairs Lounge. He saw Cardamon inside but did not see Better or Stalle. Some other individuals performed nude dances, and Cardamon was again arrested. In his written reports concerning the nude dancing at the lounge on March 25 and 27, the witness ...


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