APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
510 N.E.2d 1032, 156 Ill. App. 3d 860, 110 Ill. Dec. 1 1987.IL.859
Appeal from the Circuit Court of Macon County; the Hon. Jerry L. Patton, Judge, presiding.
PRESIDING JUSTICE SPITZ delivered the opinion of the court. LUND and KNECHT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ
The defendant, Tammy Jo McGeorge, was charged by information with eight counts of obscenity, a Class A misdemeanor (Ill. Rev. Stat. 1983, ch. 38, par. 11-20). Counts I through IV alleged, seriatim, possession of two obscene magazines and two obscene books with the intent to disseminate them. Counts V though VIII alleged, seriatim, the sale of two other obscene magazines and two additional obscene books. Each count alleged that the defendant had knowledge of the nature or contents of the materials or recklessly failed to exercise reasonable inspection which would have disclosed the nature or contents of the materials.
Defendant filed a pretrial motion to dismiss, asserting that the Illinois obscenity statute unconstitutionally violated her rights under the first and fourteenth amendments. The motion to dismiss was denied by the trial court. A jury trial was conducted in this cause on April 21 and 22, 1986.
At the trial, Clifford Kretsinger, a police officer for the city of Decatur, testified that on October 28, 1985, he went to an adult bookstore at 145 North Main Street, Decatur, Illinois. He had been directed to go to the store by his superior to look for "bondage" material. The exterior of the bookstore was labeled as an adult bookstore and one could not see into the interior from the outside.
Kretsinger testified that as he entered the store, the defendant, who was behind the counter, advised him that there was a 50-cent charge to enter the store, which would be refunded upon a purchase. After the defendant collected the fee, Kretsinger entered the main sales area, which contained racks of books and magazines appearing to be of a sexual nature, and began looking through the books. Kretsinger picked up a book entitled She-Male Sadist, opened it to a photographic illustration on page 71, and showed it to defendant at the counter. Kretsinger asked the defendant if they had any other books or magazines "with any better pictures, maybe something in color." The defendant responded by saying that she did not know what was in the books because she did not look at them and suggested that he look himself.
Kretsinger further testified that he proceeded to select another book, Slave Sisters, and two magazines, Chair Bondage and Climaxed by Pain, and took them to the sales counter where the defendant was seated. Kretsinger purchased the magazines from a male behind the counter who rang up the items and bagged them for him.
On cross-examination, Officer Kretsinger acknowledged that he was not directed to the particular materials by anyone; he was not assisted in picking out the materials by anyone, but was free to select for himself; and he was free to choose from virtually hundreds of items in the store, including any number of bondage books or magazines.
David Barringer, another city of Decatur police officer, testified that later that day upon similar instructions from his superior, he also went to the adult bookstore at 145 North Main Street, Decatur, Illinois. Barringer confirmed that the store was labeled as an adult bookstore and also believed that signs required a person to be 18 years old or older to enter. Barringer further testified that there were racks of books and magazines in the store of a sexual nature. Barringer testified that after he entered the store, the defendant entered and went behind the counter. Barringer picked up a book entitled Bizarre, Master of Pain, opened it to a picture on page 165, approached the counter, and showed it to the defendant. When Barringer asked the defendant if she had any films of this type in the store, she responded negatively. When Barringer then asked if they had any magazines similar to the books, the defendant said "Yes," pointing to a rack in front of a wall. Barringer testified that the defendant said all of the bondage books were located over there.
Barringer went to the area indicated by defendant and selected two magazines, John Savage's Notebook and Asses in Bondage. He also selected another book entitled Bizarre, Daughters of Darkness from the area where he had originally obtained the first book. According to Barringer, there were about 100 books of that type in the same area.
Barringer took the selected materials to the counter where defendant was located. Defendant asked if he was affiliated with any law-enforcement agency. Barringer told her that he was not, and asked if he would get a discount if he was. The defendant responded negatively. Barringer gave the money for the materials to the defendant and she gave him a receipt and bagged them.
On cross-examination, Barringer also acknowledged that no one had directed him to a particular book or magazine and that he could have selected from hundreds of different books or magazines in the store, including those with a bondage theme.
The defendant's oral motion for a directed verdict at the close of the State's case in chief was granted in part and denied in part. A directed verdict was granted on count I (Chair Bondage), count II (Climaxed by Pain), and Count III (Slave Sisters), leaving count IV (She-Male Sadist) as the only remaining count alleging possession of obscene materials with intent to disseminate; however, the motion to dismiss counts V through VIII, alleging possession with intent to disseminate, was denied. Included in the defendant's case in chief were certified copies of adult use ordinances from eight cities in the State of Illinois (Urbana, Bloomington, Springfield, Danville, Chicago, Galesburg, Quincy, Peoria), all of which allowed for adult uses in specified areas.
Dr. Roderick Bell, a social scientist with a Ph.D., testified on behalf of the defendant as an expert witness regarding a public opinion poll designed to sample and report the attitudes of adults living within the State of Illinois regarding the depiction of sexually explicit materials. Dr. Bell's poll was taken in August and September of 1985 and was based on a random telephone sampling of 800 individuals. A "Summary of Responses" was admitted into evidence as defendant's exhibit No. 16. The following is an excerpt from that "Summary."
"In your opinion is it now all right or not all right in the State of Illinois for . . ..
12. Movie theaters and bookstores that restrict attendance to adults only to show depictions of bondage?
13. Movie theaters and bookstores that restrict attendance to adults only to show depictions of S&M-type activities?
Also testifying on behalf of the defendant was Dr. Frank Cushing, a clinical psychologist with a doctorate in psychology. Dr. Cushing testified that the ranges of human sexual conduct which he observed in the materials on trial fell within the category of normal sexual activity and did not fall in the category of a shameful or morbid interest in sex. He further testifies that the bondage materials appealed to the fantasies and was not so much a sexual issue as a power and control issue. Finally, Dr. Cushing stated that the materials presented at trial had a limited value and that exposure to them would not lead the average adult to commit antisocial acts.
John Breen, a legal investigator, testified that he went to various adult bookstores in different communities throughout the State of Illinois where he purchased magazines portraying the bondage content and human sexual conduct which he observed available in the materials in those locations. He testified that he observed materials dealing with heterosexual intercourse, anal and oral intercourse, homosexual and lesbian activities, and bondage in the various bookstores. He also confirmed that he had gone to the Decatur store where the ...