Appeal from the Circuit Court of Du Page County; the Hon.
Robert A. Nolan, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendant, Charles Anderson, appeals from his conviction in the circuit court of Du Page County after a jury trial on two counts of obscenity in violation of section 11-20 of the Illinois Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, par. 11-20.) Defendant contends that the two magazines sold by his employee were not obscene as a matter of law beyond a reasonable doubt, that the State failed to prove defendant possessed the requisite scienter for his obscenity conviction, and that the trial court erroneously interpreted the law, thereby necessitating remandment for resentencing. Because we conclude the trial court committed no reversible errors, we affirm defendant's conviction.
Defendant, the owner and sole proprietor of Villa Park Bookstore, was charged in a nine-count indictment "with having recklessly failed to exercise reasonable inspection which would have disclosed" that certain magazines sold at his bookstore were obscene. Also indicted and tried with defendant was his employee and store clerk, Frank L. Rivera.
The jury trial was conducted on January 18-19, 1983. The State elected to bring prosecution on only four counts based upon the sale of four different magazines. Proofs were submitted by stipulation and included the admission of the magazines into evidence. After the stipulation was read to the jury, the trial court denied defendant's motion for a directed verdict.
On the basis of the stipulation and the magazines admitted as exhibits, the jury returned guilty verdicts as to two counts but acquitted defendant on two other counts. The trial court entered judgment on the verdicts and on May 19, 1983, after hearing argument in aggravation and mitigation, sentenced defendant to four months in the county jail on each count, with the sentences to run concurrently. The court also imposed a $1,000 fine on one count. Defendant on June 17, 1983, filed a timely notice of appeal.
Defendant first argues that the two magazines which are the basis of this action are not obscene as a matter of law. Each magazine was introduced into evidence and determined by the jury to be obscene. However, this court is required to make an independent judgment as to whether the material is constitutionally protected. Jacobellis v. Ohio (1964), 378 U.S. 184, 12 L.Ed.2d 793, 84 S.Ct. 1676; People v. Ridens (1974), 59 Ill.2d 362, cert. denied (1975), 421 U.S. 993, 44 L.Ed.2d 483, 95 S.Ct. 2000.
The Illinois statute on obscenity provides in relevant part:
"A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor and description or representation of such matters." (Ill. Rev. Stat. 1981, ch. 38, par. 11-20(b).)
The United States Supreme Court in Ward v. Illinois (1977), 431 U.S. 767, 52 L.Ed.2d 738, 97 S.Ct. 2085, construed this statute as constitutional and concluded the examples of obscenity recited in its earlier decision in Miller v. California (1973), 413 U.S. 15, 37 L.Ed.2d 419, 93 S.Ct. 2607, were intended by the Illinois Supreme Court in Ridens to be incorporated into the Illinois statute. (Ward v. Illinois (1977), 431 U.S. 767, 775, 52 L.Ed.2d 738, 747, 97 S.Ct. 2085, 2090.) After considering United States Supreme Court interpretations of Illinois case law, our appellate court has articulated the present obscenity guidelines in this State as follows:
"(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct of the kind cited in the following examples:
1. patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated;
2. patently offensive representations or descriptions of masturbation, excretory functions and lewd exhibition of the genitals.
(c) whether the material is utterly without redeeming social value." People v. Speer (1977), 52 Ill. App.3d 203, 211, 367 N.E.2d 372, 377.
Acknowledging that these guidelines govern this appeal, defendant asserts as one of first impression the question whether the magazines here, depicting bondage scenes, constitute obscenity under the Illinois statute. Our review of the case law confirms defendant's assertion that no Illinois court has answered the specific question whether magazines depicting women in bondage without more are obscene. However, under analogous circumstances, both the United States Supreme Court and Illinois courts have ruled that sadistic and masochistic publications are obscene.
• 1 Defendant makes essentially two arguments with regard to these rulings. First, he contends that bondage is not fairly included within the definition of sadism or ...