APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY
J. BOSCO, Judge, presiding.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 7, 1976.
Five cases charging the defendants with violating the Illinois obscenity statute (Ill. Rev. Stat. 1973, ch. 38, par. 11-20) were consolidated for appeal. In four of the five cases the defendants were charged with selling an obscene magazine with knowledge of the nature or content thereof. In the fifth case defendant James Grant was charged with selling an obscene magazine with knowledge of the nature and content thereof or recklessly failing to exercise reasonable inspection of such magazine where an inspection would have revealed its obscene nature and content. In a bench trial the court found each of the magazines to be obscene and found each of the defendants guilty of the crime of obscenity. Defendants Speer, Grant, Glass and Myers were fined $100 each and defendant Stove was fined $1,000. The defendants appeal contending that: (1) the State failed to prove beyond a reasonable doubt that the defendants had knowledge of the nature and content of the magazines; (2) the magazines are not obscene in the constitutional sense and therefore fall within the protection of the First Amendment; and (3) the complaint against James Grant is void because it uses the disjunctive "or" in charging Grant with sale with knowledge of the magazine's contents or sale with reckless disregard of the magazine's contents, thereby creating uncertainty and conjecture as to which alternative Grant was accused of violating.
In the case of James Speer, Investigator George Carey of the Chicago Police Department's Vice Control Division testified that on August 21, 1974, he went to the Mart Adult Book Store at 78 West Van Buren in Chicago. He said "hello" to James Speer, a clerk at the checkout counter. He proceeded to a magazine rack, selected a magazine entitled "Playmate" No. 7, took it to the checkout counter and paid James Speer $3 for it. The officer opened the magazine to pages he marked "A" and "B" and showed it to Speer and asked if Speer would sell that magazine to a minor. Speer said "no." The magazine "Playmate" No. 7 consists of a pictorial story without narrative, of color photographs of a young woman and two young men engaging in a variety of sexual activities. The two pages the officer showed Speer contain a single color photo of the individuals in bed with the woman performing an act of fellatio (oral caressing of the male sex organ) on one of the males while the other male is masturbating the genitals of the woman. There is no written matter in the magazine and the rest of the pages are filled with photographs of acts of sexual intercourse, anal intercourse, fellatio and masturbation with the photographs focusing on the genitals of the participants. James Speer testified that he had been employed as a clerk at the adult bookstore for seven or eight months prior to the time he had sold investigator Carey the magazine. Speer denied having anything to do with the selection of the books or ever looking at them. He said he only read "hockey magazines." He stated that he knew the kind of store where he worked.
In James Grant's case, Nicholas Ahrens, a police officer with the Chicago Police Department, testified that on August 26, 1974, he went to the Van Buren Book Store at 72 West Van Buren Street. After browsing for several minutes he selected a magazine, "Sinsear," volume 1, No. 4, and took it to the checkout counter where James Grant was working as a clerk. He placed it on the counter so that it was facing Grant and paid Grant for the magazine. Ahrens then identified himself as a police officer and informed Grant of his purpose in the store. The officer opened the magazine to pages he marked "A" and "B", placed them in front of Grant and asked Grant if he would sell that magazine or one like it to a minor. Grant said "no." The magazine, "Sinsear," volume 1, No. 4, is primarily composed of photographs, with a scarcity of written material. The photographs all depict naked or almost entirely naked men and women engaging in actual or imminent sex acts including intercourse, cunnilingus (oral caressing of the female sex organ) and fellatio. The photographs focus throughout the magazine on the genitals of the participants. The marked pages which the officer showed James Grant contain photographs of a nude woman about to perform an act of fellatio on a nude man and the man about to perform the act of cunnilingus upon the woman. James Grant testified that he had been a clerk for 13 years, but had nothing to do with the selection of books sold in the store. He testified that he did not know the nature of the magazine he sold to Officer Ahrens and never once looked at any of the magazines in the store.
In the case of Victoria Stove, Investigator George Carey testified that on May 1, 1974, he went to Victoria's Adult Book Store at 2914 West Irving Park in Chicago, Illinois. The investigator paid a $1 admission fee to a woman sitting at the counter he later identified as Victoria Stove, selected a magazine entitled "Climax" and took it to the counter. He laid the magazine down in front of defendant Stove and paid $5 for it. Carey then identified himself as a police officer and asked the defendant whether she would sell the magazine to a minor. She said she would not. Victoria Stove then told Carey that she was the owner of the store. When he told her he was going to take the magazine before a judge to obtain an arrest warrant, she stated to him that "this is pornography and once I'm arrested what's going to happen to me." The magazine, "Climax" is primarily composed of photographs of naked men and women engaging in intercourse, fellatio, cunnilingus, masturbation and a combination of these acts. In each photograph the focus is on the exposed genitals of the persons depicted. Some textual material appears on certain pages along with the photographs. Victoria Stove testified that she was the owner of the store but had nothing to do with the selection of the materials sold there because "a lot of the stuff was there already" and she "just * * * ordered more of the same stuff."
In the case of Milton Glass, the prosecution and defense stipulated that if Officer Peterson were called to testify he would testify that on July 18, 1974, he went to 119 West Van Buren in Chicago and purchased from Milton Glass a magazine entitled "Ankh" No. 21, "The Journal of the Senses," for $5. The magazine is primarily composed of photographs of men and women engaging in intercourse, masturbation, fellatio, cunnilingus, group sex acts and lesbian sex acts. Milton Glass testified that he was a clerk at the book store and had nothing to do with the selection or contents of the books.
In the case of James Myers we have not been provided with a transcript of his trial proceedings except for the determination that the magazine he sold was obscene and his hearing in aggravation and mitigation. The magazine he was charged with selling, "Nude Living," No. 66, "A Journal of Contemporary Sex Mores," primarily consists of photographs of naked men and women engaged in intercourse, fellatio, cunnilingus, masturbation, voyeurism and various lesbian acts.
• 1 The defendants' first contention is that the State did not prove beyond a reasonable doubt that the defendants had knowledge of the nature or contents of the magazines. In defendant James Myers' case the record does not contain a transcript or report of the proceedings of his trial except for the finding and sentencing. Where a party fails to bring the entire report of proceedings to the reviewing court it will be presumed that the trial court heard sufficient evidence to support its judgment (People v. Nettles, 32 Ill. App.3d 1082, 338 N.E.2d 199), and a reviewing court cannot consider a question concerning the sufficiency of the evidence in absence of a complete record (People v. Sheppard, 415 Ill. 497, 114 N.E.2d 564; People v. Johnson, 15 Ill.2d 244, 154 N.E.2d 274.) Therefore, we will not consider this contention as to defendant Myers.
As to the other four defendants, the contention is that their cases only contain evidence that the defendants sold certain magazines to the police officers and do not contain any evidence, direct or circumstantial, that the defendants had knowledge of the contents of these magazines. In the cases of Speer and Grant the officer in each instance opened the magazine to pages with photographs of explicit sex acts and showed these pages to the defendants who stated that they would not sell these magazines to minors. In Stove's case she was the owner of the store and admitted to the officer that "this is pornography." In the case of Milton Glass, however, the only evidence was that Glass had sold a copy of "Ankh" No. 21, "The Journal of the Senses" to Officer Peterson for $5. There was no direct evidence whether Glass had examined the contents of the magazine. However, in Glass' case, as in the other cases, in order for him to have made the sale it would be necessary to look at the cover of the magazine to determine the sale price. The cover of the magazine Glass sold contains several written labels or admonitions in large letters stating "ADULTS ONLY" and "SALE TO MINORS FORBIDDEN" along with the statement "This Guide Contains PHOTO ILLUSTRATED Educational Material Dealing With Sex." In the center of the cover is a large black and white photograph of a young male and female apparently naked (only parts of the upper portion of their bodies are shown), lying together in the grass. We are of the opinion that looking at this cover would put a reasonable person on notice as to the obscene nature or content of the magazine.
The Illinois obscenity statute makes it unlawful to sell obscene material "with knowledge of the nature or content" of that material. (Ill. Rev. Stat. 1973, ch. 38, par. 11-20.) The Criminal Code in defining the phrase "with knowledge of" states, "Knowledge of a material fact includes awareness of the substantial probability that such fact exists." (Ill. Rev. Stat. 1973, ch. 38, par. 4-5.) The court, which was sitting as the finder of fact, could have reasonably drawn the inference that Milton Glass, in selling the magazine, would have had to look at the cover of the magazine for the sale price and in looking at the cover he would have become aware of the substantial probability that the magazine was of an obscene nature. We are of the opinion that there was sufficient evidence to support a finding that Milton Glass had knowledge of the nature or content of the magazine he sold to Officer Peterson.
The defendants have cited Smith v. California, 361 U.S. 147, 4 L.Ed.2d 205, 80 S.Ct. 215. In Smith it was held that the State may not hold a person strictly liable for the sale of obscene material, but must show that the person had knowledge of the character or contents of the material.
The court went on to say, however:
"Eyewitness testimony of a bookseller's perusal of a book hardly need be a necessary element in proving his awareness of its contents. The circumstances may warrant the inference that he was ...