Appeal from the Circuit Court of Winnebago County; the Hon.
Robert J. French, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 31, 1985.
Defendant, Charles Morrison, was charged with three counts of obscenity, each dealing with the sale of an allegedly obscene magazine. (Ill. Rev. Stat. 1983, ch. 38, par. 11-20(a)(1).) At a jury trial defendant was found guilty on all three counts. Defendant was sentenced to conditional discharge for a period of 12 months and assessed a fine of $1,500. Defendant filed a timely notice of appeal.
On appeal, defendant contends: (1) that the Illinois obscenity statute is unconstitutionally vague, indefinite, and uncertain; (2) that the State's Instruction No. 12 incorrectly stated the law of obscenity; and (3) that the prosecutor's remarks to the jury, in particular his repeated references to the jurors as members of the community of Illinois, misled the jury and prejudiced its deliberation.
At defendant's trial Detective Steven D. Olson of the Rockford police department testified that at about 10 a.m., on July 21, 1983, he entered an adult book store at 519 W. State Street in Rockford. As he entered the book store, he was stopped by defendant who was behind the counter and who told the officer he would have to pay a 50¢ browsing fee. The officer related that within the book store there were numerous magazines, all depicting sexually explicit activities on both the front and back covers. Olson selected three magazines, brought them to the counter where defendant was located, and placed them face down. Defendant picked each magazine up, turned it over, looked at the price, and rang it up on the cash register. Later in the day, at approximately 2 p.m., the witness and other officers returned to the book store to arrest defendant.
The State's other witness was David B. MacMurchy, an officer assigned to the identification section of the Rockford police department. MacMurchy related that on the day of defendant's arrest the officer took photographs of the exterior and interior of the adult book store at 519 W. State Street. MacMurchy identified the photographs and described what each picture depicted.
Defendant's expert witness, Dr. Roderick Bell, presented testimony regarding a public opinion poll he conducted which was designed to establish the attitude of adults living within the State of Illinois as to sexually explicit materials. Defendant's other witness, Phillip Lark, testified that he went to various adult book stores in different communities within the State of Illinois where he purchased sexually explicit magazines comparable to the materials involved in the defendant's trial.
During the State's closing argument, the prosecutor argued that the testimony of defendant's two witnesses was designed to show the jurors that because sexually explicit materials were available in other counties, this availability indicated such materials were acceptable in the State of Illinois. The prosecutor then stated:
"I am telling you that simply because other counties in this State and bookstores in other counties in this State are allowed to operate and allowed to sell this type of material does not mean that we are going to allow them to be sold in Winnebago County."
Defendant's objection to the prosecutor's reference to "Winnebago County" was overruled.
At the jury instruction conference the State tendered the People's instruction No. 12 (Illinois Pattern Jury Instruction (IPI), Criminal, No. 9.57 (2d ed. 1981)) which gave a definition of "obscenity." This instruction was given over defendant's objection that it incorrectly stated the law regarding obscenity. Defendant's instructions Nos. 5 and 6 (non-IPI), which were refused, were claimed to set forth the tripartite test for obscenity under Illinois law and the application of community standards to that test.
The jury found the defendant, Charles D. Morrison, guilty of the crime of obscenity on all counts. The court imposed a sentence of 12 months' conditional discharge and a fine of $1,500.
• 1 Defendant's first contention is that the Illinois obscenity statute (Ill. Rev. Stat. 1983, ch. 38, par. 11-20) is unconstitutionally vague, indefinite, and uncertain. This issue and defendant's arguments are nearly identical to the first issue in People v. Pope (1985), 138 Ill. App.3d 726, with which the instant case was consolidated for oral argument. We adopt our positions set forth in Pope on this first issue and refer the parties to our opinion in Pope for our discussion of this similar issue in which we conclude, as here, that the obscenity statute is constitutional.
• 2, 3 Next, defendant contends that People's instruction No. 12 incorrectly stated the law of obscenity and, therefore, should not have been given. It is true that jury instructions should not be misleading or confusing (People v. Gathings (1981), 99 Ill. App.3d 1135, 1138, 425 N.E.2d 1313), but jurors are properly instructed if all the instructions construed together, properly inform them of the applicable law. (People v. Gerecke (1977), 45 Ill. App.3d 510, 517, 359 N.E.2d 1178.) Moreover, any confusion or ambiguity in an instruction may be cleared up by another instruction, as no single instruction is required to set forth all the relevant law on a single subject. People v. Mills (1968), 40 Ill.2d 4, 15, 237 N.E.2d 697; People v. Jones (1975), 26 Ill. App.3d 78, 85, 325 N.E.2d 56.
• 4, 5 People's instruction No. 12 was taken from IPI Criminal 2d No. 9.57, and unless the trial court determines that a pattern instruction does not accurately state the law, that instruction should be used. (87 Ill.2d R. 451(a); People v. Haywood (1980), 82 Ill.2d 540, 545, 413 N.E.2d 410.) Here, the instruction in dispute accurately stated the ...