People v. McSwain
358 Ill. Dec. 152
Ill. App. Ct.2012Background
- McSwain was convicted by a jury of five counts of child pornography in January 2010.
- Evidence included five photos of B.M. (a minor) and other images involving B.M. and Harris, some taken when B.M. was under 18 and some after she turned 18.
- The State introduced photos (exs. 7–11) and later photos (exs. 12–15) with limited purposes, and the court instructed the jury accordingly.
- The jury asked for the definition of ‘lewd’; the court gave a six-factor Lamborn framework plus an extra caveat that nudity alone is not lewd.
- Defendant argued admission of uncharged images and the definition given influenced the verdict; he moved for posttrial relief, which was denied.
- Counts II–V involved simultaneous possession of multiple images; the judgment included five separate convictions and fines; the court later vacated four counts on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the lewd definition given to the jury was correct | McSwain argues the court should have used his proposed definition. | McSwain contends the definition caused confusion and warranted a new trial. | The Lamborn six-factor framework was proper and sufficient; no abuse of discretion. |
| Admission of uncharged images found in email | The uncharged images were relevant to knowledge and possession and proper. | Admission of uncharged images was improper propensity evidence and prejudicial. | Admissible for knowledge/possession; any error was harmless. |
| Multiplicity of convictions for simultaneous possession of five images | Each image constitutes a separate offense under 11-20.1(a)(6). | Simultaneous possession of multiple images should be a single offense. | Statute ambiguous; counts II–V vacated; remanded for amended sentencing. |
Key Cases Cited
- People v. Lamborn, 185 Ill.2d 585 (1999) (defines lewd with six-factor test; nudity alone not lewd)
- People v. Sven, 365 Ill.App.3d 226 (2006) (noting dictionary definition of lewd provides little guidance)
- People v. Leach, 2011 IL App (1st) 090339 (2011) (two-step analysis for jury questions and accuracy of response)
- People v. Carter, 213 Ill.2d 295 (2004) (ambiguous statute; one-act/one-crime doctrine; unit of prosecution)
- People v. Manning, 71 Ill.2d 132 (1978) (statutory interpretation guiding later amendments)
- Dabbs, 239 Ill.2d 277 (2010) (admission of bad-acts evidence balanced against prejudice)
- Pelo, 404 Ill.App.3d 839 (2010) (harmless error and prejudice considerations for evidentiary rulings)
- Roberson, 401 Ill.App.3d 758 (2010) (general significance of relevance in evidentiary rulings)
- Villard, 883 F.2d 117 (3d Cir.1989) (federal guidance on lewd/obscene definitions in context)