it was the trial court’s duty, as the trier of fact, to assess the credibility of the witnesses, resolve any inconsistencies, assign weight to the testimony, and draw reasonable inferences therefrom
How later courts described this case
- it was the trial court’s duty, as the trier of fact, to assess the credibility of the witnesses, resolve any inconsistencies, assign weight to the testimony, and draw reasonable inferences therefrom
Written by the judges who cited it.
The opinion
PRESIDING JUSTICE REID, dissenting:
I dissent. While I agree with the majority in many respects, I find impermissible vagueness in part of the Harmful Materials statute. As the majority explains, section (c) of the Harmful Materials statute is designed by the legislature to “provide[ ] further guidance as to how prosecutions under this statute should proceed.” 358 Ill. App. 3d at 933. In pertinent part, that section reads:
“The predominant appeal to prurient interest of the material shall be judged with reference to average children of the same general age of the child to whom such material was offered, distributed, sent or exhibited, unless it appears from the nature of the matter or the circumstances of its dissemination, distribution or exhibition that it is designed for specially susceptible groups, in which case the predominant appeal of the material shall be judged with reference to its intended or probable recipient group.” (Emphasis added). 720 ILCS 5/11 — 21(c) (West 2000).
I find that section is vague. There is no indication as to precisely how a trier of fact, whether that be a judge or jury, could reference the age of similar children. How is a trier of fact to determine what the average child would find prurient? How is a defendant to defend against an allegation that, as in this case, the average 16-year-old would have found the videotape prurient? No mechanism has yet been invented to allow a trier of fact to view the evidence filtered through the eyes of a child similarly situated with the victim.
“The due process vagueness standard is comprised of three elements. First, the statute must not be so vague that men of common intelligence must necessarily guess at its meaning or application. [Citation.] Second, the statute must provide sufficiently definite standards for law-enforcement officers and triers of fact that its application does not depend merely on their private conceptions. [Citation.] Finally, if the statute implicates first amendment expressive rights, it must not be so vague as to chill their free exercise.” People v. Smith, 347 Ill. App. 3d 446, 450 (2004), citing People v. Garrison, 82 Ill. 2d 444, 453 (1980).
Under both Smith and Garrison, there is no way for adult jurors or law-enforcement officers to apply the law, as drafted, without the taint of their private conceptions of right and wrong, moral and immoral, sexy and prurient. This is, at least in part, due to the fact that, unlike adult obscenity, the Harmful Materials statute does not limit itself to those materials that “taken as a whole, *** lack serious literary, artistic, political or scientific value.” 720 ILCS 5/11 — 20(b) (West 2000). An adult can determine whether something is obscene based on those criteria, because no childlike prism is required. This is where the Illinois Harmful Materials statute is unconstitutionally vague. “A statute violates due process ‘on the basis of vagueness “ ‘only if its terms are so ill-defined that the ultimate decision as to its meaning rests on the opinions and whims of the trier of fact rather than any objective criteria or facts.’ ” ’ ” People v. Einoder, 209 Ill. 2d 443, 451 (2004), quoting People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 291 (2003), quoting Stern v. Norwest Mortgage, Inc., 179 Ill. 2d 160, 168 (1997), quoting People v. Burpo, 164 Ill. 2d 261, 265-66 (1995). That is the precise problem with our Harmful Materials statute; there is no way for an adult to truly put himself or herself in the mind of a child. Therefore, the mechanism of enforcement is vague because it rests on little more than whims. The reality is that each trier of fact may perceive the prurient interests and sexual desires of minors differently. In the case of Jackson showing his homemade pornography to G.B., the ultimate call under the statute may be easier to make than in other cases that could present themselves in the future. Nevertheless, the inherent problem in the mechanism created by the legislature persists. I, therefore, find section 11 — 21(c) unconstitutionally vague and would reverse on that basis.