The only mental state required to sustain a conviction of involuntary manslaughter is that of recklessness ( People v. Cates (1982), 111 Ill. App.3d 681, 689, 444 N.E.2d 543), and a finding of recklessness does not, in our opinion, necessarily negate a finding of knowledge or intent. (See People v. Better (1975), 33 Ill. App.3d 58, 66-67, 337 N.E.2d 272.) "Mental states of knowledge and recklessness are not susceptible to clear distinction." ( People v. Gross (1977), 52 Ill. App.3d 765, 771, 367 N.E.2d 1028.)
Ultimately, a determination of what constitutes obscenity is a matter within the province of the court. People v. Better (1975), 33 Ill. App.3d 58, 337 N.E.2d 272. We note that City of Rolling Meadows v. Kohlberg recites the criteria expressed in Miller v. California (1973), 413 U.S. 15, 37 L.Ed.2d 419, 93 S.Ct. 2607. This case is at variance with the criteria enumerated in People v. Ridens and People v. Gould.
The majority states that City of Chicago v. Kimmel (1964), 31 Ill.2d 202, is not controlling because it predated the pronouncement of "community" as being the Statewide community. However, People v. Better (1975), 33 Ill. App.3d 58, was decided after the adoption of the Statewide standard in People v. Butler (1971), 49 Ill.2d 435. The Better court stated: "Concomitantly, defendants' argument that the trial court should have allowed expert testimony on the subject of contemporary community standards is without merit.
While nude dancing is protected speech ( Commonwealth v. Sees, 374 Mass. 532, 537 [1978]; Plank, supra at 469-470), when it is combined with "hard-core" sexual conduct it may lose its protected status. Conduct such as that found here has been disapproved by courts, e.g., patrons grabbing at a dancer (see United Food Corp. v. Alcoholic Beverages Control Commn., 375 Mass. 238, 241-245 [1978]; California v. LaRue, 409 U.S. 109, 111 [1972]; compare Sees, supra at 534; Plank, supra at 469), lewd exposure of the genitals, particularly when accompanied by lewd conduct (see Commissioner of Bldgs. v. Sidne Enterprises, Inc., 90 Misc.2d 386, 391 [N.Y.Sup.Ct. 1977]; People v. Ventrice, 96 Misc.2d 282, 286-288 [N.Y. Crim. Ct. 1978]), and masturbation or fondling oneself (see Commonwealth v. Grant, 7 Mass. App. Ct. 203, 204 [1979]; People v. Better, 33 Ill. App.3d 58, 65 [1965]). The defendants also argue that the Commonwealth was obliged to present expert testimony concerning the absence of serious literary, artistic, political or scientific value in the allegedly obscene matter.
Taken together with the evidence relating to the defendant's knowledge, this evidence met the requirements of our statute. See People v. Better, 33 Ill. App.3d 58, 67, 337 N.E.2d 272 (1975); Seattle v. Marshall, 83 Wash.2d 665, 672, 521 P.2d 693, cert. denied, 419 U.S. 1023, 95 S.Ct. 499, 42 L.Ed.2d 297 (1974). C
While some may find that lap dancing, like nude dancing, is a form of expressive conduct protected by the First Amendment, this court declines to stretch the circle of expression beyond the perimeters already established. State Ex Rel. Miller v. Private Dancer, 613 N.E.2d 1066, 1069 (Ohio Ct. App. 1992); see People v. Better, 33 Ill. App.3d 58, 337 N.E.2d 272, 277 (1975). Our holding that the sexual conduct here is unprotected by the First Amendment also compels the conclusion that Miller v. California is inapplicable to this case.
We have not been directed to any precedent requiring First Amendment protection for such private activity with one customer on the edge of a dimly lighted room, as compared to dances performed on stage to entertain a group of customers. See generally Erwin S. Barbre, Annotation, Topless or Bottomless Dancing or Similar Conduct as Offense, 49 A.L.R.3d 1084 (1973) (discussing nude dancing as public offense); People v. Better, 33 Ill. App.3d 58, 337 N.E.2d 272 (1975) (discussing standards to determine whether nude dancing is protected expression). We do not rule out the possibility that Ms. Waller's conduct in this case is protected by the First Amendment. If she raises this issue in county court and that court determines the First Amendment applies to these activities, then the circuit court is correct, and the issue of lewdness in this case should be analyzed to include the Miller three-prong test.
Rule 13(e), T.R.A.P.; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Nude dancing, while not in itself obscene, may become obscene when combined with certain sexual conduct such as lewd exposure of the genitals — e.g., Commissioner of Bldgs. v. Sidne Enterprises, Inc., 90 Misc.2d 386, 391, 394 N.Y.S.2d 777 (Sup.Ct.N.Y. Co., 1977). — or the fondling of one's own breasts and vaginal area while dancing — e.g., People v. Better, 33 Ill. App.3d 58, 337 N.E.2d 272 (1975). The dancing of defendant Probst, as described by the above-summarized testimony of the State's witness, included the rubbing of her own breasts and vaginal area, and further, could be said to constitute the lewd exposure of her genitals.
The record shows that the activities of the table dancers at the Booby Trap included conduct which would be extremely difficult to define as "dancing" and which was arguably obscene. Any protection that dancing might have is lost, of course, if the dancing is found to be obscene. Commonwealth v. Kocinski, 414 N.E.2d 378 (Mass. App. Ct. 1981); People v. Better, 33 Ill. App.3d 58, 337 N.E.2d 272 (1975). This case does not involve the serving of liquor and is thus not resolved by the holding of California v. LaRue, 409 U.S. 109, 34 L.Ed.2d 342, 93 S.Ct. 390 (1972).
Defendant requests a new trial on the basis that a person cannot have two mental states at the same time. In People v. Better (1975), 33 Ill. App.3d 58, 337 N.E.2d 272, defendant asserted that the obscenity complaints against him did not charge an offense because they alleged two states of mind which were mutually exclusive. The court found that the provisions were not mutually exclusive since there was adequate basis in the record to show that defendant had both the knowledge of the content of the dancing and consciously disregarded the risk that nude dancing would incite indecent acts.