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, Richard Pope, was charged with three counts of obscenity (Ill. Rev. Stat. 1983, ch. 38, par. 11-20(a)(1)), each dealing with the sale of an allegedly obscene magazine. At a jury trial defendant was found guilty on all three counts. At a subsequent sentencing hearing the trial court imposed concurrent sentences of 120 days on each of the counts as well as consecutive fines of $1,000 on each count. Defendant filed a timely notice of appeal.
In this court defendant contends: (1) that the Illinois obscenity statute (Ill. Rev. Stat. 1983, ch. 38, par. 11-20) is unconstitutionally vague, indefinite, uncertain and overbroad; (2) that the information under which defendant was charged failed to allege the necessary material definitional elements of obscenity and, therefore, was legally insufficient; (3) that the trial court abused its discretion in prohibiting defendant's voir dire examination designed to determine the jurors' bias or prejudice towards materials depicting sexual intercourse; (4) that the trial court erred in admitting certain photographs into evidence; (5) that the trial court erred in giving a combined issues instruction on all three counts of obscenity and in refusing defendant's tendered instruction relating to contemporary community standards; (6) that defendant was not proved guilty beyond a reasonable doubt; and, (7) that the trial court abused its discretion in sentencing the defendant.
On July 21, 1983, at approximately 9 a.m., Detective John Versetti of the Rockford police department went to an adult book store located at 623 7th Street. A sign on the exterior of the premises designated the store as an "Adult Book Store" and also indicated that patrons must be 18 years of age to enter. Upon entering the store the officer paid defendant, who was located at the counter, a 50¢ browsing fee. Versetti extensively described the interior of the store, pointing out that the store contained numerous magazines and films depicting all types of sexual activity, marital aids, and movie booths whose exterior doors depicted the type of sexual film one could view by entering the booths.
Versetti browsed for about 10 to 15 minutes, selecting three magazines, Full Throttle, Fuck Around, and Anal Animal, all of which were later admitted into evidence. Versetti placed the magazines face down on the counter. Defendant picked each one up and turned it over to get the sticker price on the front. The price of each magazine was $8.50. Defendant asked for the officer's browsing slip so as to apply it to the price of the magazines and then tried to ring the prices up on the cash register. When defendant could not get the register to work, he commented that he was new at the store, did not know how to fix the register, and asked Versetti to return later when the register was fixed. The officer did return later in the morning at approximately 10 o'clock and purchased from the defendant the three magazines the officer had earlier left with the defendant.
Jack Rinehart, a detective assigned to the identification section of the Rockford police department, also testified on behalf of the State. Rinehart stated that on July 21, 1983, at about 3:45 p.m. he had taken photographs of the exterior and interior of the adult book store at 623 7th Street where defendant worked. During his testimony it was revealed that the photographs had been mislabeled in that the address written on the back of them stated "519 7th Street" instead of "623 7th Street." The officer explained that this confusion had occurred because pictures had been taken the same day of another store located at 519 State Street. Rinehart testified that he knew the pictures being introduced into evidence were the ones he took because he and the photographer who took the pictures of the State Street store put their photographs in separate envelopes and that the developed pictures now being displayed were those that returned in the envelope for the 7th Street store.
On cross-examination Rinehart admitted that he had no independent knowledge whether the pictures which constituted the State's exhibits Nos. 10 through 17 and which portrayed the interior of an adult book store, showed what exactly was in the 7th Street store. On redirect examination, however, Rinehart pointed out that the case number for the instant case appeared on the back of each photograph as well as the date and time the pictures were taken and the name of the photographer (the witness) who took the pictures. Additionally, Rinehart stated that he had not participated in nor handled the evidence for the State Street case.
Defendant objected on relevancy grounds to the admission of the State's exhibits Nos. 7 and 8, depicting the counter area of the book store. Defendant also objected to the State's exhibits Nos. 9 through 17, interior shots of the store, based on the fact that there had not been adequate foundation for their admission. The trial court admitted the State's exhibits Nos. 7 through 17 into evidence.
Defendant's first witness was Philip Lark, a college student. Lark testified that he had been employed by defense counsel to visit adult book stores in Winnebago, Champaign, Rock Island, McLean, Macon and Sangamon counties, to determine the availability and acceptability of sexually explicit materials at these various locations. The witness described the exterior and interior of each book store he visited and the clientele he encountered in each as well as the magazines he purchased in the stores. Lark stated that the materials purchased by him accurately contained pictorial portrayals of the sexual activity observed in publications and other materials available in each book store visited, including heterosexual and homosexual conduct, traditional, anal and oral intercourse, and group sex.
Defendant also presented an expert witness, Dr. Roderick Bell, a social scientist, who testified regarding a 1983 public opinion poll he had conducted of 800 people in Illinois. The poll was designed to sample and report the attitude of adults living within the State regarding the depiction of sexually explicit materials. It was Dr. Bell's opinion that the results of the survey showed that a trend existed from 1978 to 1983 towards greater acceptance of the dissemination of sexually explicit materials for adults only. On cross-examination, Dr. Bell explained that "consensus" meant "agreement," and that in his survey consensus by those who were tested was found in only one question. According to Bell, the lack of consensus would indicate that there was no standard.
At the jury instruction conference, over defendant's objection, the State's issues instruction, which combined all three counts into one instruction, was given. (State's instruction No. 10.) Defendant's instructions Nos. 3, 4 and 5, which were separate issues instructions for each of the three counts, were refused. Defendant's instruction No. 7, relating to proof of contemporary community standards, was also rejected.
The jury found defendant guilty of the crime of obscenity on all counts. The defendant filed a timely post-trial motion, which was denied.
At the sentencing hearing, no presentence report was submitted to the trial judge and no evidence in aggravation was presented by the State. Betty Pope, defendant's mother, and Nancy Gorzny, a long-time friend, testified in defendant's behalf, speaking favorably of defendant's character and reputation in his community. Both witnesses acknowledged that defendant was still employed at the adult book store. At the conclusion of the hearing, the court imposed sentences of 120 days on each of the three counts and consecutive fines of $1,000 on each count. The court provided no reasons for defendant's imprisonment other than an allusion to his continued employment at the adult book store.
• 1 Defendant's first contention is that the Illinois obscenity statute (Ill. Rev. Stat. 1983, ch. 38, par. 11-20) is unconstitutional because it provides little guidance to persons who might be affected by it. This contention is without merit as the Illinois Supreme Court has consistently held that the obscenity statute is not impermissibly vague or overbroad, that prohibitions are clear, and that it does not invade areas of personal freedom. People v. Ridens (1974), 59 Ill.2d 362, 321 N.E.2d 264; People v. Ward (1976), 63 Ill.2d 437, 441, 349 N.E.2d 47.
Additionally, defendant argues that the Illinois obscenity statute is constitutionally weak because (1) it allows the trier of fact to consider the effect of allegedly obscene materials on children as part of the relevant community; (2) it fails to require the application of an objective standard as opposed to a contemporary community standard in finding that allegedly obscene material is "utterly without redeeming social value"; and, (3) it fails to allow an affirmative defense for dissemination to all adults instead of certain special classifications of persons.
• 2 Defendant's argument that the obscenity statute is unconstitutionally weak because it permits children to be included in determining the relevant community standard is equally without merit. The obscenity statute specifically addresses this challenge. Section 11-20(c) of the statute states that "[o]bscenity shall be judged with reference to ordinary adults" and that children should be considered as part of the relevant community only when the allegedly obscene materials are designed for or directed to children. (Ill. Rev. Stat. 1983, ch. 38, par. 11-20(c).) Thus, unless children are ...