APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
513 N.E.2d 468, 160 Ill. App. 3d 315, 112 Ill. Dec. 54 1987.IL.1217
Appeal from the Circuit Court of Kendall County; the Hon. Wilson Burnell, Judge, presiding.
JUSTICE WOODWARD delivered the opinion of the court. REINHARD and UNVERZAGT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD
Following separate jury trials, defendant, Sequoia Books, Inc., was found guilty of obscenity in two cases. Defendant was fined $1,000 plus costs and $924 plus costs, respectively. Defendant appeals from both convictions.
On August 9, 1985, Judge John L. Peterson issued a search warrant for the Denmark Bookstore in Aurora, Illinois, which was owned and operated by the defendant, to search for evidence of the offense of obscenity (Ill. Rev. Stat. 1985, ch. 38, par. 11-20) and to seize any "magazines containing depictions or portion thereof of the following: cunnilingus, fellatio, anal intercourse, excretion of semen from penis onto other persons, masturbation, vaginal or anal insertion of prosthetic devices, insertion of tongue into anus." Attached to the complaint for search warrant were the affidavits of Glenn Calvert and Ricky M. Holman, investigators for the Kendall County State's Attorney's office. Calvert's affidavit set forth that he had visited defendant's bookstore and purchased three magazines entitled Cum Shootout, Chain Gang Bang, and Tightropes. Each magazine depicted more than one sexual act described in the search warrant. Calvert spent 15 minutes in the bookstore and observed several hundred magazines, many, if not all, of which depicted acts described in the warrant. All of these magazines were offered for sale to the public. Holman's affidavit stated that numerous criminal charges had been filed in Kendall County under section 11-20 of the Criminal Code of 1961 (Act) (Ill. Rev. Stat. 1985, ch. 38, par. 11-20) against various persons resulting from the purchase of magazines and movies from the defendant's bookstore.
Armed with the search warrant, Calvert, Holman, and others, went to the Denmark Bookstore and seized 48 different magazines.
On February 10, 1986, Illinois State Police investigator Harold Andrews presented an application for search warrant to Judge James M. Wilson for the Denmark Bookstore, again for seizure of magazines containing depictions of sexual activities and bondage. According to Andrew's affidavit, he had been in the Denmark Bookstore on January 2 and February 6, 1986, and had purchased a total of eight magazines which were tendered to Judge Wilson for review. Judge Wilson issued a search warrant for Denmark Bookstore for the seizure of magazines containing depictions of sexual activity, identical to what was described in the search warrant of August 30, 1985, but which also included "depictions of male or female persons with genitals or breasts being fettered or bound or otherwise physically restrained, insertion of objects into penis or anus."
Again, armed with the search warrant, Andrews and Kendall County investigators went to the Denmark Bookstore and seized 177 magazines.
The defendant was then charged in two separate cases with one count of obscenity. Each complaint charged that the defendant had offered obscene magazines for sale, each complaint incorporating by reference the list of magazines seized pursuant to the applicable search warrant. After pleading not guilty in each case, defendant filed motions to quash the search warrant, suppress evidence, and the return of the items seized, arguing that the search and seizure procedures violated the defendant's constitutional rights under the first, fourth, and fourteenth amendments to the United States Constitution. Following an evidentiary hearing, the motions in both cases were denied.
The defendant also filed motions to dismiss in each case, contending that the complaints were improperly drawn in that a large number of magazines had been included within a single count. Further, the motions to dismiss in each case challenged the constitutionality of the obscenity statute in both its pre-1986 form and its post-1986 form. Following hearings in both cases, the motions to dismiss were denied.
Each case then proceeded to trial. In both cases, the parties stipulated that the defendant owned and operated the Denmark Bookstore and offered the charged magazines for sale on the dates in question, knowing the nature and contents of the magazines. In each case, the State presented testimony that the magazines lacked value, had a negative and dehumanizing effect on the average adult, and that each of the magazines appealed to the prurient interest of the average adult. In addition, at the trial of the second case, the State also presented testimony that the magazines had no serious value in the fields of literature or art.
In each case, the defendant presented evidence of contemporary community standards through the use of a public opinion poll conducted in 1983, the results of which were designed to establish the attitudes of adults living across the State of Illinois to sexually explicit materials. There was also testimony concerning the various adult bookstores in communities throughout Illinois and the type of magazines that were available for sale there. The defendant also presented testimony that the magazines in both cases did not appeal to prurient interest and, instead, appealed to the normal curiosity of the average adult about sex. Finally, defendant's witnesses testified that the magazines would not lead the average adult to commit antisocial acts and that the magazines had value in that they provided a release and entertainment for a segment of the population. In both cases, defendant offered into evidence certified copies of the adult use ordinances from several municipalities throughout Illinois as evidence of community standard. The trial court sustained the State's objections to the admission of the ordinances on the basis of relevancy.
At the conferences on jury instructions in the respective cases, the State offered an instruction which permitted the jury to find the defendant guilty of obscenity if they found a single magazine to be obscene. The defendant tendered instructions which would require the jury to find all of the magazines obscene in order to find defendant guilty of obscenity. In both cases, the trial court, accepting the State's theory, ruled that the State could proceed in a single count for as large a number of magazines as it chose and obtain a conviction regardless of a finding by the jury that some magazines were not obscene and thus constitutionally protected. In each case, over defendant's objections, a special ...