APPEAL from the Circuit Court of McHenry County; the Hon.
HENRY COWLIN, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 17, 1982.
Defendant, John R. Spargo, appeals from his conviction for the offense of child pornography (Ill. Rev. Stat. 1979, ch. 38, par. 11-20a) and contends: (1) that section 11-20a of the Criminal Code of 1961 is unconstitutionally overbroad and (2) that section 11-20a is unconstitutionally vague and violates Federal and State due process requirements.
On August 30, 1979, defendant was charged by information with violation of section 11-20a(b)(1)(A) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 11-20a(b)(1)(A)). The information alleged that on August 17, 1979, defendant exhibited certain child pornography to Edward J. Flynn. Subsequently, defendant filed a motion to dismiss the information alleging that the child pornography statute was unconstitutional in various respects. In a memorandum opinion, the trial judge denied defendant's motion, and the case proceeded to a bench trial.
The only evidence introduced at trial was a stipulation of facts and the State's exhibit containing the alleged child pornography. The factual stipulation was as follows:
"1. That Edward J. Flynn, (hereinafter referred to as `Flynn'), an adult male, was, during the years of 1978 and 1979, a senior investigator for the Illinois Legislative Investigation Commission.
2. That John R. Spargo, (hereinafter referred to as `Spargo'), an adult male, was, at all times relevant hereto, a resident of Lake Geneva, Wisconsin.
3. That Spargo was unaware that Flynn was a law enforcement officer, and Flynn never informed Spargo of the fact until after Spargo's arrest.
4. That at the request of Flynn, Spargo and Flynn met at the McHenry Dam State Park in McHenry County, Illinois, on Friday, August 17, 1979.
5. That at the request of Flynn, Spargo brought with him to that meeting People's Exhibit #1.
6. That at the request of Flynn, and while both parties were sitting in Flynn's automobile, Spargo showed and/or exhibited to Flynn, and the parties mutually viewed, People's Exhibit #1 and its contents.
7. That thereupon, Flynn placed Spargo under arrest.
8. That Spargo did not sell or deliver nor did he offer to sell or deliver People's Exhibit #1 or any of the contents thereof, to Flynn."
People's exhibit No. 1 is an album consisting of 70 3" x 4" color photographs of young, nude boys engaged in acts of masturbation and exhibition of their genitals and pubic area. There are multiple photographs of the same boy on a page with his name, age and brief comments about the child's sexual traits. The ages listed for the boys range from 11 to 16. The court found the defendant guilty of the offense of child pornography and set a date for a sentencing hearing. On October 29, 1980, defendant was sentenced to a term of 24 months' probation and fined $1,000.
Defendant contends that section 11-20a of the Criminal Code of 1961 is unconstitutionally overbroad in that it makes criminal the conduct involved herein, i.e., the showing of obscene photographs to another within the privacy of that person's automobile. It should be noted initially that defendant is correct in his initial premise that the statute does appear to prohibit this kind of conduct. The statute makes anyone who "exhibits" child pornography guilty of a Class 4 felony. (Ill. Rev. Stat. 1979, ch. 38, par. 11-20a(b)(1)(A).) The statute does not purport to regulate only the commercial exhibition of child pornography, as evidenced by the lack of a qualifier for the word "exhibits." Further evidence of this is found in the combined reading of sections 11-20 and 11-20a. Section 11-20 of the Criminal Code of 1961, which pertains to the offense of obscenity, provides that it is an affirmative defense to the offense of obscenity if the dissemination "[w]as not for gain and was made to personal associates * * ...