People v. Correa

• Decision Date: 16 November 1989
• Docket Number: No. 1-88-1558,1-88-1558
• Parties: , 138 Ill.Dec. 938 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael CORREA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 351

548 N.E.2d 351

191 Ill.App.3d 823, 138 Ill.Dec. 938

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael CORREA, Defendant-Appellant.

No. 1-88-1558.

Appellate Court of Illinois,

First District, Fourth Division.

Nov. 16, 1989.

Barsy, Joseph & Lichtenstein, Chicago (Burton Joseph, Maaren M. Plant, of counsel), Reno, O'Byrne & Kepley, P.C., Champaign (Glenn A. Stanko, of counsel), for defendant-appellant.

Cecil A. Partee, State's Atty., County of Cook (Inge Fryklund, Marie Quinlivan Czech and Angela M. Tisdale, of counsel), for plaintiff-appellee.

Justice LINN delivered the opinion of the court:

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 persued 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 fifteen 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 seven of the fifteen 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 and ordered defendant to pay $750 in fines and costs. Defendant appeals.

Opinion

Books, newspapers, magazines, and motion pictures are all forms of expression normally protected by the free speech provisions of the United States and Illinois Constitutions. (U.S. Const., amend. I; Ill. Const.1970, art. I, sec. 4.) This protection is not affected by the fact that the material is sold for profit, or that it primarily entertains rather than communicates ideas. Leopold v. Levin (1970), 45 Ill.2d 434, 441, 259 N.E.2d 250, 254; City of Chicago v. Festival Theatre Corp. (1980), 88 Ill.App.3d 216, 220, 43 Ill.Dec. 341, 344-45, 410 N.E.2d 341, 344-45, aff'd. (1982), 91 Ill.2d 295, 63 Ill.Dec. 421, 438 N.E.2d 159.

Further, sexuality is not synonymous with obscenity; expression which is sexually oriented, but not obscene, commands full constitutional protection as speech. (Festival Theatre Corp., 88 Ill.App.3d at 221, 43 Ill.Dec. at 435, 410 N.E.2d at 345; City of Rolling Meadows v. Kohlberg (1980), 83 Ill.App.3d 10, 15, 38 Ill.Dec. 586, 590, 403 N.E.2d 1040, 1044.) However, regardless of the form of expression, these constitutional guarantees do not protect obscene material. Miller v. California (1973), 413 U.S. 15, 23, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419.

In Illinois, a person commits the offense of obscenity when he or she, inter alia, creates, buys, procures, or possesses obscene material with the intent to disseminate it, with knowledge of the nature or content of the material, or recklessly failing to exercise a reasonable inspection that would have disclosed the nature or content of the material. (Ill.Rev.Stat.1985, ch. 38, par. 11-20(a)(5).) The State carries the burden of proving beyond a reasonable doubt the existence of all the elements of the offense. People v. Thomas (1976), 37 Ill.App.3d 320, 323, 346 N.E.2d 190, 192; 67 C.J.S. Obscenity sec. 24 (1978).

Our statute defines "obscene" as follows:

"Any material or performance is obscene if: (1) the average person, applying contemporary adult community standards, would find that, taken as a whole, it appeals to the prurient interest; and (2) the average person, applying contemporary adult community standards, would find that it depicts or describes, in a patently offensive way, ultimate sexual acts or sadomasochistic sexual acts, whether normal or perverted, actual or simulated, or masturbation, excretory functions or lewd exhibition of the genitals; and (3) taken as a whole, it lacks serious literary, artistic, political or scientific value." (Ill.Rev.Stat.1985, ch. 38, par. 11-20(b).)

This statutory definition incorporates the United States Supreme Court's three-part test of obscenity with examples. Miller, 413 U.S. at 24-25, 93 S.Ct. at 2615, 37 L.Ed.2d at 430-31.

The statute further directs the factfinder to determine obscenity with reference to ordinary adults. However, the determination must be made with reference to children if the circumstances surrounding the dissemination of the material show that the material was directed to children. Ill.Rev.Stat.1985, ch. 38, par. 11-20(c).

These criteria insure that no one may be convicted for the sale or exposure of obscene materials unless those materials depict or describe patently offensive "hard-core" sexual...