APPEAL from the Circuit Court of Winnebago County; the Hon.
BRADNER C. RIGGS, Judge, presiding.
MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant was charged with making available to the public three allegedly obscene films which were located in an adult book store at 322 East State Street, Rockford, Illinois. (Ill. Rev. Stat. 1979, ch. 38, par. 11-20(a)(3).) Following a jury trial, she was found guilty of obscenity and sentenced to 30 days in the county jail and fined $1,000. She raises six issues in this appeal. We find reversible error occurred in two instances: when the jury was instructed that the State did not have to "produce expert testimony on the question of whether or not the movies are obscene," and when the State failed to provide the jury with sufficient evidence of the defendant's scienter.
• 1 In view of our holding, we do not consider the other four issues raised by the defendant. However, and notwithstanding our holding, we wish to remark upon an error which we believe would have compelled us at the very least to remand this cause for resentencing of the defendant. In People v. Conover (1981), 84 Ill.2d 400, the Illinois Supreme Court determined when section 5-5-3.2(a)(2) may be considered to be a factor in aggravation during sentencing. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(a)(2).) Section 5-5-3.2(a) provides:
"The following factors shall be accorded weight in favor of imposing a term of imprisonment or may be considered by the court as reasons to impose a more severe sentence under Section 5-8-1:
(2) the defendant received compensation for committing the offense."
"* * * that section 5-5-3.2(a)(2) of the Unified Code of Corrections may be considered as a factor in aggravation only when one is remunerated, * * * to commit an offense, whether the offense is burglary or theft, where proceeds may be taken, or the crime is one that does not involve proceeds, e.g., aggravated battery." 84 Ill.2d 400, 405.
At sentencing, the court in the instant case stated its reasons for imposing a sentence of imprisonment:
"* * * I'm going to enter a Judgment of Conviction and having due regard for the character of the defendant and nature and circumstances of the offense and the public interest, find that a sentence of jail is an appropriate disposition. And I do this because first, the defendant was, in fact, receiving compensation for doing what she was doing and secondly, because I believe that the sentence in [sic] necessary to deter others from committing the same crime." (Emphasis added.)
We believe the court's consideration of the fact the defendant was paid to work at the bookstore was improper under Conover and would mandate a vacation of the sentence and remandment for resentencing were it not for our finding that the defendant's conviction must be reversed.
A summary of the facts is necessary. At 6:30 p.m. on August 30, 1979, Officer Richard Galvanoni of the Rockford Police Department entered an adult bookstore located at 322 East State Street, Rockford, Illinois. He asked the clerk on duty, defendant Barbara Hart, for $5 worth of quarters and gave her a $20 bill. He asked her "if the movies in the back were any good." She said she did not know. He asked if there was a "browsing" fee, and she said not at that time. Officer Galvanoni proceeded to the projection area, or arcade, which is a room located about 30 feet away from the front counter where the defendant was stationed. The arcade contained approximately 18 three-foot by four-foot booths; each booth had a door on which were mounted framed posters graphically indicating a choice of movie "A" or "B" with a scene taken from the movie and showing the title thereof. A coin-operated projector with a different slot for movie "A" or "B" was located inside the booth. Upon placement of a quarter in the slot, the movie chosen automatically projected onto a screen located on the interior side of the booth door. The movie runs for a short time; a total of six quarters must be fed into the slot in order to see the entire 10-minute movie. Officer Galvanoni viewed three movies in this manner. At trial, the jury viewed all three of the movies, which were described in detail in Galvanoni's affidavit for search warrant. Generally described, they depicted fellatio, masturbation, analingus, and anal intercourse by and between two white males; fellatio, cunnilingus and intercourse between a black male and a white female; and simultaneous combinations of acts of cunnilingus, fellatio and/or intercourse by and between two white females and one white male. None had a sound track; they were silent movies. The store window and entrance door had been painted to prevent viewing from the outside by all except the tallest persons, and admittance was restricted to persons over 18 years of age. The interior of the store and the walls were filled with racks holding paperbacks and hundreds of "different various types of magazines" and "marital aids" such as "rubber dildos and items of that nature."
After watching the three movies and browsing in the store for awhile, Galvanoni asked the defendant "if any of the movies that were playing in the back were for sale at the front of the store." She responded "she didn't know but possibly the Swedish Erotica films may be the same in the back as they sold in [sic] the counter." Officer Galvanoni then left the store, and the three films at issue were seized pursuant to a search warrant the following evening, August 31, 1979. The defendant was not present at the store when the films were seized; a warrant for her arrest was issued on August 31, and she posted bond on September 1, 1979.
The defendant charges it was error for the court to give this non-IPI instruction which was tendered by the State and objected to by the defendant:
"The State is not required to produce expert testimony on the question of whether or not the movies are obscene."
People v. Ridens (1972), 51 Ill.2d 410, and People v. Hobbs (1978), 59 Ill. App.3d 793, were cited as authority for the instruction.
At trial, the State's evidence consisted of Officer Galvanoni's testimony, testimony of the officers who executed the search warrant and who transferred the three films in question from cassettes to reels, and the films themselves. The defendant's motion for a directed verdict was denied and she presented two witnesses, Doctor Thomas Hollon and Michael Mullen. Dr. Hollon, a clinical psychologist with extensive experience in diagnostic evaluation and counseling of persons with sexual disorders, cited the 1970 report of the President's Commission on Obscenity and Pornography as the most authoritative study on the relationship between sexually explicit material and human sexuality. He testified the commission's report showed there was no causal relationship between exposure to sexually explicit materials and antisocial behavior. Further, the report showed repeated exposure to such materials resulted in "satiation"; that is, a lack of response to the explicit stimuli; a failure to become aroused. He defined "prurient interest" as a sick or morbid interest in nudity, sexuality or excretia, and stated that there can be a physiological response (sexual arousal) to sexually explicit material which flows from a completely normal interest in sex. He stated his view that normal sexual behavior encompasses a wide range of sexual behavior and acts between consenting adults, and that the conduct portrayed in the three films fell within this range of normal sexual behavior. His opinion was that the films do not appeal to prurient interest, and that although they would not have any scientific or instructional value, they would have recreational or informational value, albeit to a limited number of persons.
Michael Mullen, an assistant in a Rockford legal firm, testified regarding his purchase of a number of so-called "men's magazines" at various locations in Rockford. "Hustler" was purchased at a Stop-N-Go store; "Cheri" was purchased at Ekstrom's in Rockford. There were no restrictions on the accessibility of these magazines at either store. A copy of "Velvet" was purchased at Seventh Street Recreation in Rockford; "High Society" was purchased at Canterbury Books; "Club International" was purchased at a different Stop-N-Go in Rockford. Again, there were no restrictions on the accessibility of these magazines; Stop-N-Go had a five-minute time limit on browsing, however. The magazines range in price from $2.75 to $3.25 per copy. Generally described, the magazines feature photos of nude men and women posed singly, as couples, or in groups in a variety of poses which suggest imminent or actual hetero- or homosexual ...