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People v. Schubert

OPINION FILED SEPTEMBER 10, 1985.

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

v.

CHRISTOF SCHUBERT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Robert L. Massey, Judge, presiding.

JUSTICE BILANDIC DELIVERED THE OPINION OF THE COURT:

Defendant Christof Schubert was charged by indictment with a violation of the child pornography statute. (Ill. Rev. Stat. 1981, ch. 38, par. 11-20a.) The indictment read, in part, that he exhibited child pornography depicting a child "under the age of sixteen years." Thereafter, defendant was found guilty after a bench trial of the offense of exhibiting child pornography. Motions in arrest of judgment and for a new trial were denied. Defendant was sentenced to 30 months probation and a $1,000 fine.

Defendant appeals his conviction, contending that certain provisions of the child pornography statute are void for vagueness and unconstitutional as applied to him; that he was not found guilty beyond a reasonable doubt; that the materials upon which his conviction was based were improperly admitted into evidence; and that the indictment with which he was charged was insufficient as a matter of law.

In April 1983, defendant, a member of the Chicago gay community, responded by telephone to an ad in a magazine titled Gay Chicago in the hope of trading certain magazines in his possession. The ad had been placed by Gerald Peterman in an attempt to obtain and sell pornographic material. During a telephone conversation, Peterman arranged a meeting with defendant at Peterman's apartment on the afternoon of April 22, 1983.

Peterman, who had assisted the police in past investigations of child pornography, informed youth officer Brian Killacky that defendant had answered the ad and indicated that he had some child pornography for sale. Youth officer Killacky was present in Peterman's apartment on the day of the agreed-upon meeting. Upon defendant's arrival, Peterman admitted him into the apartment and Officer Killacky introduced himself to defendant as Mark Killacky. Defendant identified himself as Carl Georges.

Officer Killacky testified that upon entering the living room, defendant opened a suitcase he was carrying and spread a number of magazines on the living room floor. Officer Killacky and defendant then seated themselves on the floor next to each other. Defendant indicated that he had numerous magazines containing "kiddie porn" and pointed out two magazines in particular that contained child pornography. Defendant described these two magazines as containing "good chicken," a term for young boys.

Defendant then handed the two magazines to Officer Killacky. Upon examination, the officer determined that the two magazines contained depictions of male children under the age of 16, engaging in acts of deviate sexual conduct and lewd behavior. Officer Killacky and defendant then bargained over the price of the two magazines, eventually agreeing on the price of $5. Officer Killacky identified the magazines in question. One was titled, "More Than 7 Inches: a photo study of youths with unusually large penises"; the other was titled, "Salute: Donny!"

Defendant told Officer Killacky that he had several friends who had homemade child pornography, consisting of movies and magazines. Defendant suggested that they meet within the next few days so Officer Killacky could purchase a larger quantity of child pornography. Officer Killacky did not arrest defendant at this time, but made plans to meet defendant at the apartment in three days. On April 25, 1983, defendant arrived at the apartment with two other men. Officer Killacky arrested him.

Defendant also testified. His testimony conflicted with that of Officer Killacky in several material aspects. Defendant stated that when he telephoned Peterman, Peterman asked whether the magazines contained child pornography. Defendant responded that he did not know the contents of the magazines because he had not examined them thoroughly. However, defendant also testified that he had read the articles in the magazines but had not looked at all of the pictures.

Defendant also testified that upon his arrival at Peterman's apartment, he opened the suitcase at Peterman's request and spread the magazines on the living room floor after being informed that "Mark" (Officer Killacky) was really interested in "chicken." Defendant then sat down on the living room floor opposite Peterman and "Mark," who were sitting side-by-side examining the magazines. Defendant said he was unaware of which two magazines were sold because he was not interested in the subject matter.

I

Our child pornography statute provides in pertinent part:

"Sec. 11-20a. Child Pornography * * *

(1) Matter * * * is `child ...


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