*1 THE PEOPLE ILLINOIS, OF THE STATE OF Plaintiff-Appellee, v. PAUL
BORASH, Defendant-Appellant. (4th Division) First District No. 1 - 02-3677 Opinion filed November 2004. *2 RJ.,
REID, dissenting. Kimberly Jansen, Appellate both of State J. Pelletier and Michael Office, Chicago, appellant. Defender’s (Renee Goldfarb, Devine, Attorney, Chicago Annette
Richard A. State’s Collins, McGee, Attorneys, counsel), Maureen Assistant State’s for the People. JUSTICE THEIS delivered the opinion of the court:
n Following trial, a bench defendant Paul Borash was convicted of prison. sentenced to six On he appeal, (1) proven beyond contends that he was not guilty a reasonable doubt requires where the statute proof of an of the exhibition “unclothed” (720 20.1(a)(l)(vii) (West genitals 2000)), and the evidence 5/11 — (2) clothed; submitted demonstrated the victim was the statute violates (Ill. the proportionate penalties clause of the Illinois Constitution (3) I, 11); § Const. art. he right was denied his a fair (4) impartial judge; and the trial requiring court erred in him to forfeit following reasons, camera. For the judgment we affirm the part circuit court in and vacate in part.
BACKGROUND victim, K.N., 11-year-old girl, testified that she was born September going that she grade into sixth mother, M.K.,
lived with her mother in Chicago. dating Her had been years. During time, defendant for five defendant had attended birthday parties victim’s and was familiar the victim and was *3 aware of On age. her June M.K. asked defendant to watch the overnight. time, victim Prior to that the victim had never the spent night alone with defendant. home,
While at defendant’s put defendant asked the victim to on stockings some nude-colored and her mother’s polka-dot skirt. When underwear, victim asked defendant if put she should he told her “no.” Defendant then told the leg victim to sit on a chair one with over the arm the chair. “privates” of The victim testified that her showing. were then He told the victim to sit there while he took of pictures her. The further victim testified that defendant asked her get on the floor on her and photographed hands knees and he her from behind. He photographed also her while on the couch. The victim People’s identified 1 through photographs Exhibits 18 as the defendant took her. taking brought film to photographs,
After defendant Chicago drugstore developed. at Clark and Belmont Street to be envelope Defendant identified himself on the film as “Franklin.” After laboratory Penny the film development processing, was sent to lab, McCarthy, representative for the found the a customer service Il- photographs sexually explicit to be and turned them over to the Police, Chicago police depart- linois State who turned them over with As- the photographs reviewed Carol Mroczkowski ment. Officer they that Ehsaei, and Ehsaei determined Attorney Patti sistant State’s subsequently Officer Mroczkowski pornography. child constituted drugstore’s camera Chattin, supervisor Janet contacted off at dropped film that had been her that and informed department, that she Chattin testified pornography. her store contained envelope the name on that while Mroczkowski informed Officer regular from a telephone calls “Franklin,” receiving she had been was calling had been name. He by defendant’s that she knew customer told Chat- Mroczkowski photographs. Officer every day looking for were pictures him that the again, called inform if defendant tin that they located. contact him once were and that she would lost of her and other members Officer Mroczkowski On June On June drugstore. at the up unit set a surveillance directly the camera went drugstore and defendant entered paper, sign piece observed counter. Officer Mroczkowski Defendant away and from the counter. photographs walk receive he After was photographs and the were seized. was then arrested form, he rights signed rights a waiver of advised of his and after he and identified the victim acknowledged he took the that gave Defendant then consent to search depicted photographs. in the polka-dot skirt his home and vehicle. Officers recovered stockings, and photographs, of nude-colored pair victim wore The officers developed photographs from defendant’s home. boxes case, undeveloped camera, a camera and rolls also recovered two film in defendant’s vehicle. gave ASA Eh- subsequently
Defendant a handwritten statement to Therein, freely saei. defendant stated that he giving statement voluntarily promises and that no threats made to him. were old, Defendant years further stated that he was 40 that he lived in Chicago completed years college two and could read and write English. He during dated the victim’s mother for four spent time he also time with the victim. On June at his while home, change he asked the into stockings victim nude-colored polka-dot kept black and white skirt. The victim her own shirt on. put Defendant then told the victim not to on her underwear because they go swimming he going pictures were after took of her. He told pose legs open the victim to on a chair and her in order for sit *4 him vagina. physically helped to see her He asked and the victim to pose vagina all He positions exposing numerous other her anus. photographs positions exposing took victim in each of these her vagina and anus so that he could become aroused masturbate.
Defendant further stated that on June he took the roll of drugstore film to the Belmont, located at Clark and and used the false name of “Franklin” dropped when he off the film. He further stated that he years old, knew the victim only was nine that it wrong was for him to take the pictures of her exposed vagina anus, and that he had no of performing intention any sexual act with the victim. Defendant then identified all of pictures that he took of the victim on June 2000. photographs
The by taken defendant were admitted into evidence. undisputed photographs It is depict the close-up victim in buttocks, vagina shots of her or legs spread open some with her or on her hands and lying knees or on her photographs, back. these wearing T-shirt, skirt, victim is her pair mother’s and a of nude- colored stockings completely that are sheer in the area crotch and do any type panel. not have vagina The victim’s and buttocks are clearly through visible the nude stockings. The trial judge noted that she could clearly see through stockings. trial judge found defendant guilty of child pornography. His motion for new trial was denied and he was prison. sentenced to six Defendant’s mo- tion for reconsideration sentence and motion for return of his camera were timely also denied. He filed a appeal.
ANALYSIS
Defendant contends he proven guilty was not of child pornography beyond a requires reasonable doubt because (720 proof of an genitals” “exhibition of the unclothed ILCS 5/11— (West 20.1(a)(l)(vii) 2000)), fully and the victim clothed in all of submitted at trial as evidence Specifi- of the offense. cally, argues that the statute makes no provision depic- tions of child in garments transparent, dressed that are and here the wearing victim was stockings. nude-colored In addressing sufficiency of the evidence to support a criminal conviction, reviewing whether, court determines after viewing the light State, evidence in the any most favorable to the rational trier of fact could found the beyond have essential elements of the crime Lamborn, reasonable doubt. Here, however, 353-54 to the extent we are asked to (720
interpret meaning statutory term “unclothed” (West 20.1(a)(l)(vii) 2000)), apply we the de novo standard 5/11 — Lamborn, review to that determination. 185 Ill. 2d at at 354. person
A commits the offense of child Illinois any photographing person reasonably child whom the knows age should know to be under the of 18 where such child is
75 involving setting or portrayed any pose, posture “depicted or unclothed, buttocks, area, or genitals, pubic lewd exhibition of the *** added.) (Emphasis 720 person[.]” of the child or other breast (West2000). 20.1(a)(l)(vii) ILCS 5/11— by the statute. When is not defined The term “unclothed” that the word term, the court will assume not define a statute does Bailey, meaning. understood ordinary popularly its (1995). The court should also N.E.2d 962 657 language the the context which intent and legislative consider the N.E.2d Lieberman, 201 Ill. 2d 776 is used. In re Detention of (2002). the court legislature, the intent of the determining statute, the but also only language not the may properly consider remedied, law, the to be necessity sought reason and for the evils the Lieberman, 201 Ill. 2d at purpose and the achieved. N.E.2d at 223. dictionary defines the term “unclothed” to mean “not
Webster’s Dictionary clothed” or “naked.” Third New International Webster’s cover,” “to which “clothe” further defined as word is it) (one’s body or a from meaning part includes the to “conceal Dictionary view.” Webster’s Third New International that the “unclothed” as utilized in the statute We also consider word Thus, adjective “genitals” an the and “buttocks.” modifying is words question the the victim was unclothed for our review is not whether generally, photographs depict but whether the victim with her genitals or buttocks concealed view. from
Here, wearing is the victim is stock undisputed it that while clearly ings, they completely transparent vagina are and the visible Thus, exposed. despite stockings, photographs do where view, vagina from trier of fact could have not conceal the a rational photographs depict a reasonable doubt that beyond found added.) 20.1(a)(l)(vii) 720 ILCS genitals.” (Emphasis “unclothed (West 5/11 — 2000). Furthermore, we find that this definition fits within gives purpose statute and the word “unclothed” protection statutory meaning placed the context of the appropriate when To hold the term requirement of a “lewd exhibition.” that “unclothed” proof completely applied require as here must that victim negate import of the statute and could not without clothes would have been what the intended.
Nevertheless, defendant’s chosen definition of applying even “unclothed,” “naked,” meaning as we reach the same conclusion. “inadequately partially clothed may be defined as “Naked” socially Third especially] unacceptable.” so as to be Webster’s New definition of “naked” has Dictionary International This applied been in similar contexts a proper given as definition purpose particular of the See, Foster, statute at e.g., issue. People (Mo. 1992) (in 838 S.W.2d statute, context child abuse court held definition comfortably “this fits within the purpose statute, thus, although necessarily not the complete statutory definition, definition”). it is proper acceptable here, As applied rational trier of fact could have found reveal genitals inadequately victim’s socially were clothed as so to be unacceptable.
Defendant next
imposed
contends that
the sentence
for child
penalties
violates the proportionate
clause when
compared
imposed
to the sentence
aggravated
criminal sexual
A
presumed
abuse.
statute is
constitutional,
to be
party
and the
chal-
*6
a
lenging statute bears
establishing
the burden of
its invalidity. People
Graves,
478, 482,
v.
Ill. 2d
790,
207
792
This court
obligation
has an
to construe a
in
statute
such a manner as
uphold
its
if
constitutionality
it is
to do
reasonable
so. Whether the
is
Graves,
constitutional will be
482,
reviewed de novo.
Article section of the Illinois commonly clause, referred to as the proportionate penalties provides pertinent *** part penalties that “[a]ll shall be determined according to the I, § seriousness of the supreme offense.” Ill. 11. Our Const. art. proportionate penalties court held that the clause can be violated (1) instances, namely, one of three penalty where for an offense cruel, degrading, completely is or so disproportionate to the offense for (2) imposed which it is community; as to shock the moral of sense similar offenses are compared and conduct that creates a less serious (3) public threat to safety punished severely; health and is more penalties imposed Moss, People identical offenses differ. 206 Ill. 2d 795 220 N.E.2d present case,
In the defendant asserts violation of the second type. When a defendant raises of challenge type, this the court must apply two-step cross-comparison analysis of the two statutes. See Hill, First, 383 compare the court they must the offenses and determine whether are sufficiently distinct such that proportionality inappropriate. review is purposes, comparative If the offenses do not have common or related proportionality inappropriate; legislation defining review is when presume criminal enacted purposes, offenses is for different we will determining ap considered different factors in propriate penalties judgment for the offenses and will defer to its If, however, related, regard. purposes this the two offenses are of
77 with the harsher determine offense the court must then whether Moss, penalty. with the lesser serious than the offense penalty is more 771 221; Hill, Ill. 2d N.E.2d at 199 Ill. 2d at 795 must first determine whether Accordingly, we N.E.2d at 383. enacting the child when purpose related legislature had a common or sexual abuse statutes. aggravated criminal pornography (a)(4) statute, a pornography subsection Pursuant or if he she entices or person commits the crime of child any photograph in age appear in under the of 18 to solicits a child involving a portrayed any setting depicted is or which child 20.1(a)(4) genitals. 720 of the unclothed ILCS lewd exhibition 5/11 — (West 2000). an offense is a Class penalty imposed for such $2,000 subject to a and is felony mandatory minimum fine of 20.1(c) (West years prison. of to 15 720 ILCS sentence 5/11 — 8—1(a)(4)(West 2000). 2000); ILCS 5/5 — if aggravated criminal sexual abuse person A commits the crime of (1) of sexual age of 17 and commits an act the defendant is over (2) 13; or threatens force age a child under the or uses conduct with to commit act of sexual conduct with a child 13 and 17 an between (3) victim, old; more than the commits years years or if five or older penetration or sexual conduct with a either act of sexual (West 16(d) 16(c)(1), years 13 and 17 old. 720 ILCS between 12— 5/12 — 2000). “any knowing intentional or “Sexual conduct” defined as accused, directly or touching fondling by or the either victim *** years clothing, body of a child under 13 through any part *** age gratification for the or arousal purpose sexual (West 2000). 12(e) The penalty victim or the accused.” 5/12— to a sentence of imposed felony, subject for such an offense is a Class 2 (West 2000); prison. 16(g) three to seven ILCS 5/12— *7 (West 2000). 8—1(a)(5) ILCS 5/5 — (a)(4) pornography of child argues
Defendant that subsection the (c)(1) subsections statutory purpose statute shares common (d) all aggravated criminal sexual abuse statute because protect exploitation. children from sexual provisions three aim enacting these legislature explicitly purpose has not stated its statutes; however, the indica- plain language the of the statute is best 169, 159, 2d legislative tor of intent. v. 184 Ill. 703 People Koppa, (1998). 91, the that the N.E.2d It is on the face of apparent 97 (a)(4) ultimately legislature’s purpose enacting subsection sexually possession of prevent production, dissemination Geever, v. depict exploit People children. See explicit materials that (1988) 313, prevent the (purpose 122 Ill. 2d of the statute is to 326 up” market for child by “drying of children exploitation pornography).
78
Whereas, aggravated essential criminal sexual abuse statute is the act of sexual penetration. conduct or sexual People v. No vak, (1994). 93, 115, 163 Ill. 2d 762, Thus, 643 N.E.2d 773 focus (c)(1) (d) subsections is “proscribe sexual contact between the unwary minor and unscrupulous Gann, elder.” People v. 141 Ill. 34, 35, 924, 3d 489 N.E.2d Reed, 925 People See also (1992) 455, (purpose 458 12— section 16(d) of aggravated criminal sexual abuse protect statute is to children “from consequences premature experiences”). sexual While protect both statutes seek to exploitation, children from sexual (a)(4) the focus of subsection pornography on statute is eradicating the materials that record the exploitation sexual rather than prohibiting inappropriate contact sex offenders. Ac cordingly, because the purposes, statutes have distinct we must presume considered different factors establish ing penalties for these and defer judgment. offenses to its Lombardi, 91, Therefore, a comparative analysis proportionality appropriate. is not
Nevertheless,
if
even we were to construe the
having
statutes as
common statutory purpose, we find that defendant
not
met his
burden of establishing that the offense with the
penalty
harsher
is less
serious than the offense with the
penalty.
Ferber,
lesser
In New Yorkv.
458 U.S.
73 L. Ed. 2d
than
does sexual abuse
Because the
actions
child’s
recording,
may
are reduced to a
pornography
the
original
haunt him in
years, long
future
after the
place.
misdeed took
A child
posed
go
who has
through
knowing
for camera must
life
recording
circulating
system
is
within the mass distribution
”
Ferber,
child pornography.’
n.10,
New Yorkv.
79 Ohio, Osborne v. conduct. engage to sexual otherwise reluctant 1691, 1697 n.7 n.7, 110 Ct. 98, L. 2d S. n.7, 109 Ed. U.S. enact a more a need to Thus, perceived (a)(4) child of the provision under subsection stringent penalty of the of- in the commission to the increase pornography statute halt pornography on long-term effects of child fense and deter the that subsections it cannot be said Accordingly, victims. where child (720 (c)(1) (d) aggravated criminal sexual abuse of the 2000)) (d) (West than 16(c)(1), more serious offenses are ILCS 5/12 — (720 (a)(4) pornography statute subsection 5/11— 20.1(a)(4) (West 2000)), proportionate is no violation of there the Illinois Constitution. penalties clause of right his to trial that he was denied Defendant next contends his motion for where, ruling impartial judge before fair and prejudged judge improperly the trial finding guilty, directed of not trial or this issue at While defendant failed raise guilt. defendant’s conduct, judicial motion, the claimed error involves posttrial in a when objecting to the trial court’s practical “the difficulties involved People v. of the rule.” compel rigid application conduct a less waiver Accord Stevens, 3d App. 338 Ill. will the merits of defendant’s claim. ingly, we address case, made a motion for After the State rested its defendant finding denied that motion without com- directed and the trial court any presenting the record. Defendant then rested without ment on closing arguments. parties proceeded to Defendant evidence and the closing be “directed toward argument stated that his would not that was pretty agree I can much the evidence evidence. think we argument goes consequence presented. My statutory court stated charges closing arguments, ***.” After the trial here part: pertinent their case in chief when
“Certainly at the the State rested time I had made a decision a motion for directed verdict counsel made doubt, a reasonable proved beyond their case the State had At the of all of the I have directed them out. close otherwise would evidence, charge my changed. again position has not ***.” charge proven The State has pornography. 915-16, App. 322 Ill. People Connolly,
Defendant cites support argument of his that, argued Connolly, judge guilt. prejudged trial the State’s finding guilty at the close of upon a motion for a of not proof trial, higher burden of the State should have case a bench enter argued that the trial court should jury than in a trial. Defendant of not finding guilty when the evidence does not establish defendant’s guilt beyond a reasonable considering doubt without the evidence in a light most Connolly, favorable the State. 3d at *9 N.E.2d at 1226-27. The court rejected argument defendant’s instead reaffirmed the standard to applied by the trial court rul- ing on a defendant’s motion a finding for directed in a bench trial or jury trial. The court held that motion for a directed verdict of not guilty asks “whether the State’s evidence could support verdict of guilty beyond doubt, a reasonable not whether the evidence does in support that verdict.” (Emphasis original.) Connolly, 322 Ill. fact 915, 3d at N.E.2d 1227. essence,
In defendant now the opposite argument makes from the Connolly, defendant maintaining it that was error for the trial judge apply higher burden of proof the State than required Connolly. under The present that, record case testing reveals sufficiency constitutional law, evidence as a matter of judge trial found that enough there was more than sup- evidence port a guilty closing verdict. After arguments, she rendered her find- ings fact, as a detailing trier of her observations and conclusions about the content objective under an Merely standard. finding at the close of the State’s case that the State had more than proof, met its law, burden of aas matter of did not strip defendant of his presumption of innocence and does not alone constitute evidence of an unfair partial fact finder.
We find further Stevens, defendant’s cited case of People v. App. 3d 790 N.E.2d distinguishable where the court held that the defendant right was denied his fundamental to make a proper closing argument. Here, given defendant was full opportunity argument to make an closing Indeed, extensive without interruption. defendant closing argument stated that his would not be “directed toward the pretty agree evidence. I think we can much evidence presented. that was My argument goes the statutory consequence charges here Accordingly, ***.” where defense counsel did not raise any disputed closing, issues of fact in there is no evidence that the trial ultimately prejudged court all of before disputed presented. of fact foregoing reasons, issues were all of the For we find no error. argument
We next consider
deprived
defendant’s
that he was
right
impartial
his
to a fair and
judge
sentence because the trial
including
considered
factors in
improper
aggravation,
the offensive
strategy.
ness
defense counsel’s
Defendant takes issue with the trial
judge’s
during
statements
the sentencing hearing in which she
defendant,
apology
indicated that she had not heard an
from
was of-
victim,
himself as
painting
horrendous attitude
by
fended
out and beaten.”
be taken
that he “should
and declared
reversing court that before
supreme
our
long
by
It
been held
court,
clearly
it must be
evident
by the trial
imposed
sentence
Ward,
imposed. People
improperly
sentence was
is a mat-
imposition of a sentence
425-26
discretion, the
discretion,
an abuse of that
judicial
ter
and absent
review.
by the
court will not be altered on
imposed
trial
sentence
The trial
Perruquet,
Ill. 2d
Defendant that he distanced “poor judgment.” Initially, that he was from defense counsel’s we note judge for the inappropriate and it not trial represented counsel was ap- fashioning in an argument mitigation to consider counsel’s allocution, himself Furthermore, during defendant propriate sentence. construing He stated: made several comments himself as victim. going I no happen “I hell to me. have don’t know what the me, I me, my terrified. did the hell believe I’m idea. It scares out my life. always be with me for the rest of to move on. This will best never, I will ever live this down.” friend- “cost in terms of
Additionally, [him] he that his actions stated so hard for.” He also stated: ship everything [he had] and ever worked years devastating me. I’ve never have past “These two been hap- victim] It’s never anything [the like I did to before. done what years and half since.” pened. happened It has never in the two com- It to consider counsel’s appropriate for the trial court both was focusing impact that on ments and defendant’s own attitude impact it had on the victim. the offense had him rather than the record. misapprehended the Nor do we find that the trial court problem he had a apology, admitted that defendant made While trust, quality and extent that he violated the victim’s and admitted proper a defendant’s remorse is a subject for consideration. McDade, Here, while defendant stated that he apologized, the trial court questioned sincerity light his and credibility painting of his himself victim, as stating, “Your expressions of remorse are insufficient. way Totally That is the I feel. completely insincere.” It is not for reweigh judge’s this court the trial regarding observations credibility defendant’s and demeanor.
Moreover,
argues
while defendant
judge’s
trial
other com-
sentence,
ments were hostile
impacted
reviewing
court
should not focus on a few words or statements of the trial court.
Rather, the court must
Ward,
consider
entire
record as whole.
526-27,
113 Ill. 2d at
upon
Lastly, argues ordering that the trial court erred forfeiture his camera comply where the State failed to proceedings forfeiture set forth in section 36—2 the Criminal Code (the Code) (720 (West 2000)). of 1961 Following ILCS 5/36—2 sentencing defendant’s conviction and for pornography, defense counsel presented a motion the return of the camera seized from defendant’s vehicle in order to allow his parents to sell the recoup camera to some expenses incurred for the defense of his hearing motion, case. After a on the reviewing and after the forfeiture provisions pornography statute, the trial court ordered the camera to confiscated and denied defendant’s motion for return property. 20.1(e) of specifically Section the child 11— *11 equipment authorizes the seizure and forfeiture of and materials used committing provides in child pornography property and that such manner, procedure “shall be in the seized forfeited method and by provided Section 36—1 of this Code for the seizure and forfeiture 2000). 20.1(e) (West vessels, vehicles and aircraft.” 720 ILCS 5/11 — property incorporates Section 36—1 addresses the seizure of the by procedures reference the forfeiture forth in People set section 36—2. Wade, 326 Ill. 3d App. 760 N.E.2d Section provides Attorney 36—2 of the Code shall that the State’s file property of the court, give notice owner in the circuit complaint hearing by preponderance at a proceedings and establish of the of- of an in the commission property was “used the evidence that 2000). (West in described Section fense 5/36—2 36—1.”.720 statutes, forfeitures are general rule that we note construing the narrowly to avoid be construed that the law to not favored and at 495. Wade, Ill. at injustice. App. 3d require- with the article 36 Here, comply did not proceedings filing the proceeding by instituted a forfeiture ments. The State never importantly, the State never established appropriate complaint. More in the the camera was used by of the evidence that preponderance ex rel. As Thomas stated commission of offense. Justice Saturn, 1G82H5282TZ113572, App. 298 Ill. 3d VIN Waller v. 1996 is entitled 464, 699 “in order show that State N.E.2d 223 preponderance property], by to the forfeiture of it must show [the integral and was con- [property] part the evidence that the Waller, App. underlying nected offense.” 298 Ill.
N.E.2d at 226. camera, the hearing judge
At return the trial motion to photographs presented aggravation recalled that were there photographs developed had had been taken of the victim. These been defendant’s from film found in the camera that was seized from Nevertheless, evidence vehicle. the record reveals that there was no presented integral part photographs aggravation that the were an Addition- underlying of the offense for defendant was convicted. which ally, entered into presented no evidence was ever trial, pornography, evidence at and used to defendant of convict by Accordingly, using police. were taken camera where the seized and failed to set forth proceeding State did not institute a forfeiture by by police that the camera seized preponderance evidence offense, integral part of the order of forfeiture underlying was an Wade, at 496. must be vacated. 3d at foregoing reasons, of the circuit court is af- judgment For the part part. firmed vacated part. part;
Affirmed in vacated in
QUINN, J., concurs. REID, dissenting: JUSTICE PRESIDING strictly penal I is to be construed “[A] dissent. criminal or accused, nothing should taken intendment favor of the meaning literal of the statute.” implication beyond the obvious or *12 People Effler, App. 349 Ill. 3d citing People v. Laub- scher, Ill. 2d “Any ambiguity penal in a must be resolved favor of the Effler, App. defense.” 349 Ill. 3d at 219, citing People Whitney, As majority out, points person “[a] commits offense of child Il- *** by photographing any linois ‘depicted portrayed any or posture pose, setting or involving a lewd exhibition of the unclothed ” *** genitals person.’ (Emphasis or other original.) 74-75, 20.1(a)(l)(vii) (West App. Ill. quoting 3d at 720 ILCS 5/11 — 2000). legislature specifically “unclothed,” The chose the word which “ majority recognizes carries primary meanings ‘not ” “ ” clothed’ ‘naked.’ 354 Ill. App. quoting Webster’s Third New International Dictionary majority The writes that “it undisputed is that while the victim wearing stockings, they is are completely transparent vagina clearly and the is visible and added.) exposed.” (Emphasis 3d at 75.
in this record do support “transparent.” not the use of the word Though vagina hose, child’s panty clothed translucent it is clothed. The has chosen to criminalize photographs depict- ing genitals. the unclothed In its attempt to buttress the statute and oversight contemplating its of not a situation with translucent cloth- ing this, such majority as has extended the term “unclothed” to clothing sufficiently include which fails to “conceal” lay that which underneath. I believe this be both a tortured construction statute and a attempt result-oriented to legislate from the bench. Unclothed means Although clothing.” “without what the defendant allegedly did might repugnant people, to most the child in this case clothing genitals. had her covering I do not it place believe is a court’s genitals to include covered in the definition genitals.” of “unclothed legislature. Therefore, That is for the the conviction must be reversed.