People v. BargerPeople v. Barger
Counsel on Appeal
James E. Chadd, Peter A. Carusona, and Adam N. Weaver, of State Appellate Defender‘s Office, of Ottawa, for appellant.
Terry A. Costello, State‘s Attorney, of Morrison (Patrick Delfino, David J. Robinson, and Stephanie L. Raymond, of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
JUSTICE CARTER delivered the judgment of the court, with opinion.
Justice Schmidt concurred in the judgment and opinion.
Justice Schmidt also specially concurred, with opinion.
Presiding Justice Lytton dissented, with opinion.
OPINION
¶ 1 After a bench trial, defеndant, Drew W. Barger, was convicted of child pornography, a Class 2 felony (
I. BACKGROUND
¶ 3 The underlying facts in this case are not in dispute. In November 2014, as part of a drug investigation, police officers made contact with defendant. Defendant agreed to cooperate with the investigation and turned his cell phone over to the police. The cell phone was searched pursuant to a search warrant for mattеrs pertaining
¶ 4 In March 2015, defendant was charged with six counts of Class 2 felony child pornography based upon six different photographs or computer depicted images that had been recovered from defendant‘s cell phone. The charging instrument was later amended. Defendаnt waived his right to a jury trial, and, in November 2015, the case proceeded to a bench trial. During the presentation of the evidence, all six of the alleged pornographic photographs were admitted into evidence.
¶ 5 One of the photographs, which is the only photograph that is at issue in this appeal, depicted a young girl that appeared to be approximately 8 to 10 years old on a beach during the daytime. The child was the only person depicted in the photograph and was completely nudе. The photograph showed the child from the front at a relatively close angle from about her knee area to the top of her head with the camera apparently set at about the level of the child‘s stomach. The child was seated on a tether ball or a ball swing with her legs spread slightly apart straddling the ball. The rope for the tether ball/ball swing was located slightly away from the center of the child‘s body and was touching or near her vaginal area. The child‘s vaginal area was completely visible and was slightly forwаrd in the photograph due to her seated position. The child had no pubic hair and no breast development. The child was holding onto the pole for the tether ball/ball swing with one hand and was holding her hair up with the other hand. The child was looking away from the camera in the photograph and appeared to be either squinting or smiling. Across about the center of the photograph, a website name was listed in large white letters.
¶ 6 After all of the evidence had been presented and the parties had made their oral closing arguments, the trial court took the case under advisement and gave the parties time to file written closing arguments. The trial court subsequently found defendant guilty of one count of child pornography, based upon the photograph described above, and found defendant not guilty of the five remaining counts. Defendant filed a motion for judgment of acquittal or for new trial, which the trial court denied. Following a sentencing hearing, the trial court sentenced defendant to an extended term of 10 years in prison. Defendant filed a motion to reconsider sentence, which the trial court also denied. Defendant appealed.
II. ANALYSIS
¶ 8 On appeal, defendant argues that (1) his conviction should be reversed outright because the photograph at issue did not constitute child pornography as defined in the statute and, alternatively, (2) his conviction should be reduced to a Class 3 felony and remanded for resentencing because he should not have reasonably known that the child depicted in the photograph was under the age of 13 years. We address only the first argument since it
¶ 9 The State argues that defendant‘s conviction is proper and should be upheld. The State asserts that the image in question constituted child pornography and that defendant should have reasonably known that the child in the photograph was under 13 years of age. More specifically as to defendant‘s first argument, the State asserts that all six of the case law factors for determining whether an image is lewd are present in this instant case. The State asks, therefore, that we find that the photograph constituted child pornography and that we affirm defendant‘s conviction and sentence.
¶ 10 In cases such as this, wherе the reviewing court must determine whether a particular image is lewd for the purpose of the child pornography statute and the image in question is available for the reviewing court to consider firsthand, the standard of review is de novo. See People v. Lamborn, 185 Ill. 2d 585, 590 (1999); People v. Sven, 365 Ill. App. 3d 226, 231 (2006). No deference is given to the trial court‘s decision under those circumstances because the trial court is in no better position to judge the content of the image than the reviewing court. Sven, 365 Ill. App. 3d at 231.
¶ 11 Because of the nature of the offense involved and the harm it causes to children, child рornography is a category of material that is not protected by the first amendment. See Lamborn, 185 Ill. 2d at 588-89. Under Illinois law, one of the ways that a person may commit the offense of child pornography is by possessing, with knowledge of the nature or content thereof, a photograph (or other type of image) of a child that the person knows or reasonably should know is under the age of 18, where the child in the photograph is depicted or portrayed in any pose, posture, or setting involving a lewd exhibition of the child‘s unclothed (оr transparently clothed) genitals, pubic area, buttocks, or fully or partially developed breast (if female).1 See
¶ 12 In the present case, upon a review of the photograph at issue and the law in this area, we find that the photograph was not lewd and that it did not constitute child pornography under the law. See
¶ 13 As for the first factor, the focal point of the photograph was not on the child‘s genitals. The photograph showed almost all of the child‘s body from below her knee area tо the top of her head and was not a zoomed-in photograph of the child‘s genital area. See People v. Lewis, 305 Ill. App. 3d 665, 678 (1999) (stating that the focal point of the photograph in question was not on the female child‘s genitals where the photograph depicted the naked child‘s entire body, except for her lower legs). In addition, neither the child‘s body nor her legs were turned or positioned in such a way as to deliberately and specifically expose the child‘s genitals to the camera or to substantially place the child‘s genitals in the fоrefront of the photograph. Contra People v. Knebel, 407 Ill. App. 3d 1058, 1059 (2011) (finding that the focal point of a photograph of a naked female child lying on a bed with her legs spread slightly was on the child‘s genitals because the positioning of the child and the angle of the photograph put the child‘s exposed vaginal area at the forefront of the photograph); United States v. Dost, 636 F. Supp. 828, 833 (S.D. Cal. 1986) (noting that, in some of the photographs at issue, the poses of the naked female child bordered on being acrobatic in order to obtain an unusual perspective on the child‘s genitals).
¶
¶ 15 As for the third factor, the child in the photograph is not depicted in an unnatural pose. Indeed, the child could very well be seatеd on what is some type of a ball swing—a very natural activity for a child. Furthermore, the child is not wearing any clothes, and, thus, her attire is not a matter to be considered. See United States v. Villard, 885 F.2d 117, 124 (3d Cir. 1989) (indicating that the appropriateness of the child‘s attire did not arise where the child was naked). Contrary to the State‘s implied assertion, we cannot simply use the fact that the child is nude in the photograph to satisfy the third factor or any of the other case-law factors, except for the fourth one. See People v. Wayman, 379 Ill. App. 3d 1043, 1057 (2008) (stating that the element of nudity was not part of the third-factor criterion).
¶ 16 As for the fifth factor, we find nothing about the photograph that suggests sexual coyness or a willingness to engage in sexual activity. The child in the photograph is not looking at the camera, appears to be squinting rather than smiling, and is not positioning her body in an alluring manner, although she is holding up her hair. Compare Dost, 636 F. Supp. at 833 (indicating that the expression of the naked female child in one of the photographs in question was not sexually coy where the child was squinting and looking away from the camera), and Wayman, 379 Ill. App. 3d at 1057 (stating that the photоgraph in question did not satisfy the fifth factor where there was no evidence—whether by gesture, facial expression, or pose—that the naked female child in the photograph displayed a willingness to engage in sexual activity), with Knebel, 407 Ill. App. 3d at 1060 (finding that the photograph at issue suggested sexual coyness or a willingness to engage in sexual activity where the naked female child in the photograph was lying back on a bed with her legs slightly open and was looking directly at the camera and smiling with her head tilted to one side).
¶ 17 Finally, with regard to the sixth factor, we do not believe that the photograph was taken in such a way as to attempt to elicit a sexual response from the viewer or to invite the viewer to perceive the image from some sexualized or deviant point of view. Contra Sven, 365 Ill. App. 3d at 238-40 (finding that the point of view of the hidden camera footage at issue of a naked female 14 to 15 year old babysitter bathing a naked infant, which placed the viewer in the role of a voyeur or peeping tom, weighed in favor of finding that the videotape was lewd for the purpose of the child pornography statute because it invited the viewer to perceive the images on the videotape from some sexualized or deviant point of view). While the photograph was taken from a lower angle, it is not voyeuristic in nature, and the lower angle
¶ 18 In sum, although we believe that it is abhorrent that this photograph may be viewed on, and downloaded from, the Internet, we cannot say that the photograph is lewd or that it constitutes child pornography under the lаw. See Lewis, 305 Ill. App. 3d at 678 (finding that a photograph of nearly the full body of a naked 11 year old female child standing in a bedroom with a made-up bed in the background was not lewd for the purpose of the child pornography statute where the focal point of the photograph was not on the child‘s genitals; there was no indication that the bedroom or bed had any sexual meaning in the photograph; the child was not posed in a sexually suggestive or unnatural manner; the child was not wearing inappropriate attire; the expression on thе child‘s face was not sexual, inviting, or coy in any way; and the photograph did not appear to be designed to elicit a sexual response in an objective viewer); Wayman, 379 Ill. App. 3d at 1056-58 (finding that a mother‘s description of two photographs that her ex-husband had taken of the mother‘s 10-year-old daughter standing in a bathroom, showing the daughter‘s full body from both the front and the back, was not sufficient to establish that the photographs were lewd for the purpose of the child pornography statute where the focal point of the photographs was not on the daughter‘s genitals or buttocks; there was no nothing about the bathroom setting that was sexually suggestive; the daughter was not posed in a sexually suggestive or unnatural manner; the daughter was not wearing inappropriate attire; there was no facial expression, gesture, or pose of the daughter that displayed a willingness to engage in sexual activity; and the photographs did not invite the viewer to perceive the images from some sexualized or deviant point of view).2 We, therefore, have no choice but to reverse defendant‘s conviction of child pornography and sentence outright. Furthermore, as noted previously, because defendant‘s first argument completely resolves this appeal, we need not address defendant‘s second argument.
III. CONCLUSION
¶ 20 For the foregoing reasons, we reverse the judgment of the circuit court of Whiteside County.
¶ 21 Reversed.
¶ 22 JUSTICE SCHMIDT, specially concurring:
¶ 23 I concur in the above judgment. I write separately to note that not all pictures that contain nudity are pornographic. Nude pictures of young children make many people, if not most, uncomfortable. That being said, the issue here is whether this photograph of a young female is pornographic.
¶ 24 Years ago, retailers would advertise children‘s underwear in catalogs and
¶ 25 Further, the fact that someone can view this picture and conjure sexual undertones does not make it pornographic. Supra ¶ 11 (citing Lamborn, 185 Ill. 2d at 594-95, and Sven, 365 Ill. App. 3d at 231). Even the subjective sexual arousal on the part of the viewer is insufficient to establish that the picture is pornographic. See Lamborn, 185 Ill. 2d at 594 (“‘Although it is tempting to judge the actual effect of the photographs on the viewer, we must focus instead on the intended effect on the viewer.‘” (Emphases in original.) (quoting Villard, 885 F.2d at 125)); id. (“pictures of nude children do not necessarily become child pornography when they reach the hands of a pedophile“).
¶ 26 It is for those reasons I specially concur.
¶ 27 JUSTICE LYTTON, dissenting:
¶ 28 I write separately because I cannot agree with the majority‘s conclusion that the depiction of a nude prepubescent female straddling a tether ball on a beach is not a lewd exhibition of a child.
¶ 29 A person commits the offense of possession of child pornography under section 11-20.1(a) of the Criminal Code of 2012 when he or she, with knowledge of the nature of the content, possesses a photograph or computer depiction of a child the person knows or reasonаbly should know is under the age of 18 (
¶ 30 To convict a person of a Class 2 felony of the offense of child pornography, the State must prove beyоnd a reasonable doubt that (1) the depiction was a lewd exhibition of the unclothed genitals, pubic area, buttocks or breasts of a child and (2) the defendant knowingly possessed a depiction of a child he or she reasonably should have known to be under the age of 13.
¶ 31 Lewdness must be construed in light of the grave concerns regarding the sexual exploitation of children and the harm it inflicts on the children involved in child pornography. Lewis, 305 Ill. App. 3d at 677. As our supreme court has emphasized, “[c]hild pornography is particularly harmful because the child‘s actions are reduced to a recording which could haunt the child in future years, especially in light of the mass distribution system for child pornography.” Lamborn, 185 Ill. 2d at 589.
¶ 32 The first Lamborn factor involves an analysis of the relative angle and closeness of the photograph that concentrates on a child‘s genitals. See Knebel, 407 Ill. App. 3d at 1059. Here, the angle of the photograph is a direct frontal, close-up view of the torso of the nude female child, which displays her genitals prominently. The angle of the camera is below the child‘s torso, and the picture was taken at an upward angle, focusing directly on the child‘s genitals. Further, the child‘s entire body is not visible. The image depicts the nude child from the toр of her head to her upper thigh and places the child‘s breasts and vaginal area at the forefront of the photograph. Thus, the first factor weighs in favor of a “lewd exhibition.”
¶ 33 The second factor also supports a finding of lewdness. The nude female is straddling a tether ball, holding onto a pole on a beach. The beach appears to be secluded. The beach setting is sexually suggestive because it is often used for romantic encounters. See United States v. Schuster, 706 F.3d 800, 808 (7th Cir. 2013) (finding that while a bathtub alone may not be commonly associated with sexual activity, showers and bathtubs were frequent locations for fantasy sexual encounters as portrayed in television and film). In addition to the secluded beach location, the pose of the nude child is sexually evocative. She is sitting on top of a ball with her legs spread apart. With one hand, she is holding onto a pole while leaning back, and with the other hand, she is brushing her hair up and away from her face. This sexually suggestive pose, depicted in a sexually suggestive setting, creates a visual depiction that can only be describеd as lewd.
¶ 34 The third factor, whether the child is depicted in an unnatural pose or in inappropriate attire is easily met. The photograph shows a young nude female child straddling a tether ball. While the game of tether ball may be a natural activity for a child, there is nothing natural about a nude child sitting on top of the ball with the rope in close proximity to her vagina.
¶ 35 Defendant concedes that the fourth factor, whether the child is fully or partially clothed or nude, applies. Therefore, the fourth factor weighs in favor of lewdness.
¶ 36 The fifth factor, whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity, is the only factor that does not support a determination of lewdness. When considering the depiction of sexual coyness, there should be evidence, whether “by gesture, facial expression, or pose, that the subject of the photograph display[s] a willingness to engage in sexual activity.” Villard, 885 F.2d at 124. Here, the young girl is looking away from the camera, and her facial expression is difficult to discern. Thus, it is unclear whether the phоtograph suggests a willingness to engage in sexual activity. See Wayman, 379 Ill. App. 3d at 1057 (testimony that subject was not looking at the camera in one photograph and her facial expression was nondescript in the second photograph failed to satisfy the fifth criterion).
¶ 38 For these reasons, I dissent from the majority‘s decision reversing defendant‘s conviction and sentence outright. I would affirm his conviction and 10-year sentence for one count of child pornography.