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11/16/89 the People of the State of v. Michael Correa

November 16, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MICHAEL CORREA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

548 N.E.2d 351, 191 Ill. App. 3d 823, 138 Ill. Dec. 938 1989.IL.1791

Appeal from the Circuit Court of Cook County; the Hon. Paul T. Foxgrover, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JIGANTI, P.J., and McMORROW, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Following a bench trial in the circuit court of Cook County, defendant, Michael Correa, was convicted of possessing obscene magazines with the intent to disseminate them. (Ill. Rev. Stat. 1985, ch. 38, par. 11-20(a)(5).) The trial Judge sentenced defendant to court supervision for one year and ordered defendant to pay $750 in fines and costs.

Defendant appeals, contending: (1) the magazines on which the State based its prosecution are not obscene; (2) the trial court erred in completely disregarding his evidence relating to the literary and artistic value of the magazines; (3) the State failed to prove beyond a reasonable doubt the essential elements of the offense; and (4) the criminal complaint was duplicitous and, therefore, void.

We reverse the judgment of the trial court.

Background

The record contains the following pertinent facts. Defendant was employed as the manager of Friendly Frank's Comic Shop at 3427 Ridge Road in Lansing, Illinois. Youth officer investigator Anthony Van Gorp served in the Lansing police department. Officer Van Gorp's duties included observing areas where youths congregate.

On the afternoon of November 28, 1986, Officer Van Gorp and his partner went to the comic book store. Three of the store's four walls were filled with cartoon comic books, arranged on four rows of shelves on each wall. The cashier's area was located on the fourth wall. The officers perused the comic books and found some that depicted scenes of sexual conduct and nudity. These comic books were not separated in one area of the store; they were found on different walls and on different levels. Van Gorp and his partner returned to the police station and reported to their supervisor.

On December 3, 1986, Officer Van Gorp returned to the comic book store, which was open for business. Van Gorp selected 15 cartoon comic books that depicted scenes of sexual conduct and nudity. At the counter, defendant examined each comic book to find its price. The total bill was $41.10, which Van Gorp paid from police department funds. Defendant accepted payment from Van Gorp and gave the officer change, a receipt, and a bag containing the comic books.

On December 10, 1986, Officer Van Gorp swore out a criminal complaint charging defendant with obscenity, in that he possessed obscene magazines with the intent to disseminate them. Listing their titles, the complaint charged that 7 of the 15 cartoon comic books which Van Gorp bought were obscene. Van Gorp and another officer then went to the comic book store and arrested defendant.

Having waived a jury, defendant was tried by the court. On January 1, 1988, the court found defendant guilty as charged. The sentencing hearing immediately followed defendant's conviction. At the close of the hearing, the court sentenced defendant to court supervision for one year ...


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