People v. NicholsPeople v. Nichols
ORDER
¶ 1 Held: Where the charged images were not lewd as a matter of law under the Lamborn factors set out by the Illinois Supreme Court, the defendant was not guilty of possessing child pornography.
¶ 2 The defendant, Douglas Nichols, appeals his conviction following a bench trial in the Macon County circuit court in which he was convicted on 10 counts of possession of child pornography (counts I, II, V, VI, VII, VIII, IX, X, XI, and XII).
I. BACKGROUND
¶ 4 On November 30, 2022, the defendant, Douglas Nichols, was charged by grand jury indictment with 12 counts of possessing child pornography.1 720 ILCS 5/11-20.1(a)(6) (West 2020). These charges were predicated on photographs and videos of the defendant’s minor daughters taken between 2002 and 2016 and which were found on a computer and an external hard drive in the defendant’s home. The defendant’s wife, Kelly Nichols, who is not a party to this appeal, was also charged in Macon County circuit court case 2022-CF-15332 with possession of the same images and videos.
¶ 5 On August 9, 2023, the defendant filed a motion to dismiss the indictment, arguing that, as a matter of law, the images and videos charged did not meet the legal standard for lewdness under People v. Lamborn, 185 Ill. 2d 585 (1999), and therefore the images did not constitute child pornography.
¶ 6 On September 15, 2023, the trial court heard arguments on the defendant’s motion to dismiss the indictments against him. At the conclusion of the hearing, the court created “Court’s Exhibit 1,” which contained all of the photos and videos charged that the court had observed during the hearing. On September 24, 2023, the court ruled that 10 of the 12 charged counts3 could proceed because a reasonable trier of fact could find them lewd. The trial court also dismissed 2 of the 12 counts,4 finding that, as a matter of law, a reasonable trier of fact could not find that the charged videos were lewd.
¶ 10 Following a brief recess, defense counsel then cross-examined Detective Matthews on his training, experience, and process of extracting and analyzing the data from the computers. Detective Matthews testified that he did not find any internet searches for, or downloaded videos of, child pornography on the computer. He testified that “Chrome login artifacts” showed that all four members of the Nichols’ house had used the computer, and he was unable to state when the last time someone used it was. He also testified that when he examined the devices, he first made exact copies of them.
video, and he admitted that he could hear her voice on the recording. He also testified that the part of the file path of the video on the computer was “user\[Ky.N.]\pictures,” and that he could not say with certainty who the iPhone 5s that recorded the video belonged to. Concerning People’s Exhibit 6, he testified that the file path for the photograph was “mybook\mypictures\2002\familygetaways” and the photo’s filename included the words “Drury Inn.” He also stated that he did not know who took the photographs. Regarding People’s Exhibits 7 through 12, he testified that the file path of the photographs was “mypictures\2006-needssorted” and that the photos appeared to him as if the children were creating tails out of the toilet paper and appeared to be having fun. Next, Detective Matthews testified that he could not say when, if ever, any of the pictures were opened by either codefendant. He also stated that he did not see any attempt to hide, obscure, or otherwise protect the photographs.
¶ 13 The State then rested its case, and the defendant made a motion for a directed judgment of acquittal. The court then heard arguments on the motion, during which the defendant stressed the lack of knowledge of the possession. The court subsequently denied the motion, and, following an extended recess, defense counsel gave its opening remarks and then proceeded to call Ky.N. to testify.
¶ 15 In regard to People’s Exhibits 7 through 12, Ky.N. testified that she did not recognize the photos but did recognize the home. She testified that she recognized her sister and herself, but she did not remember the photographs being taken or the events being depicted. She stated that it looked like they were having fun playing horses or unicorns with the toilet paper tails, and that she and her sister commonly played with toilet paper. Regarding People’s Exhibit 4, she testified that she did not recognize the video, but that it was her sister Ki.N. playing with a pogo stick, and that she recognized both her own and her mother’s voice. Concerning People’s Exhibit 5, Ky.N. testified that she did not recognize the video, but that it was of Ki.N. and her cousin in the shower. She testified that her sister commonly sang in the shower and that, growing up, she recorded her sister singing in the shower by pointing the phone at the floor. On cross-examination, Ky.N. testified that she did not remember her parents ever taking nude photographs of her, and that she did not remember anyone else ever taking nude photos of her, and further reiterated she did not know who took the photographs but that it could have been anyone.
¶ 18 The defendant’s wife, Kelly Nichols, testified next. She testified that she and the defendant would occasionally leave the children with babysitters every couple of weeks to go out together, and they left them with one every Tuesday while they both worked. She testified that the behavior seen in the photos was all in line with how Ky.N. and Ki.N. used to play. She testified that she took photos with her kids daily and that she took photos of them in both posed and spontaneous moments, but she never asked them to take their clothes off before doing so, nor did she ever pose them in sexually suggestive ways. She testified that she did not know technology and agreed that the defendant handled all the photo backups on the computer. She testified that before she was charged in the case, she had never seen the photos or videos that were charged in the case. She testified that she would take photos and videos until her device was full, then give the device to the defendant, who would back up the device, and then she would delete all the photos and videos from her device. She also testified that she never went back and reviewed any of the photos or videos she took. Her attorney then went through the charged photos and videos with her one by one, except for People’s Exhibit 4, and she stated that she did not recall taking any of them.
¶ 20 The defense resumed its case the following day, September 27, 2024, by calling Brian Bowman, whom the State, by stipulation, agreed was a digital forensic expert. He testified that the Sony photo program used to import the photos could rename the photos in batches, in the format of “prefix” then sequential numbering without requiring individual photo naming, as in the naming of People’s Exhibit 5. He also testified that the date the computer showed the files were accessed was likely from the antivirus programs scanning the files due to how quickly they were accessed. Bowman also testified that it appeared to him that the phones were backed up to the computer by dragging and dropping files from file folder to file folder rather than using a software program like iTunes. He also testified that he was unaware whether the external hard drive was backed up directly from the phones or if it was first transferred to the computer, then the external hard drive. Finally, he testified that there was no internet usage consistent with child pornography cases.
¶ 22 Defense counsel then called the defendant’s other daughter, Ki.N., to testify. She testified that she was thankful for her parents and felt safe growing up. She testified that growing up, the family camera was typically kept in the kitchen and that everyone, including members of her extended family and possibly even babysitters, had used it. She also testified that she used her mother’s phone to take pictures daily and her sister had used it frequently as well. In regard to People’s Exhibits 7 through 12, she testified that she did not recall the photographs being taken, but believed that they had come up with the idea of making and playing with toilet paper tails, and that such activity was representative of the sort of spontaneous things they would do. Regarding People’s Exhibit 4, she testified that she was the girl on the pogo stick and that it was not uncommon for her to take off her shirt when she got hot as a kid. She also testified that she recognized her mother’s voice, as well as her sister’s voice in the video, but did not remember which one took the video. Concerning People’s Exhibit 5, she testified that the girls in the shower were herself and her cousin, and that they were having fun showering and singing “Bop to the Top.” She also testified that she did not know who took the video. Finally, Ki.N. testified that her parents had never asked her to take her clothes off for a photo or video, nor had they ever asked her to pose in a sexually suggestive manner.
¶ 24 On October 3, 2024, the court issued its ruling from the bench. The court began by going through each of the charged images and finding that each image was lewd and therefore constituted child pornography. The trial court also found that there was constructive possession of the charged images by the defendant, and the court found him guilty on all 10 counts (I, II, V, VI, VII, VIII, IX, X, XI, and XII) of possession of child pornography.
¶ 26 On August 29, 2025, the defendant’s sentencing hearing was held. It started with a discussion of the defendant’s presentence investigation report and a request to correct some language, to which the State did not object. The State declined to offer evidence in aggravation, and the court then heard the defendant’s evidence in mitigation. Following that, the State presented its sentencing argument, including the factors in aggravation it believed applied, and asked the court for a sentence of three years on all counts, which would run concurrently with each other. The State also asked for three years to life mandatory supervised release and a lifetime sex offender registration period. Defense counsel then argued mitigation and asked the court for a sentence of probation or conditional discharge. Following defense counsel’s argument, the defendant gave a statement in allocution.
¶ 28 On October 10, 2025, the trial court heard the defendant’s October 8, 2025, motion to reconsider sentence and denial of stay of sentence. After hearing the evidence and the argument, the court denied the defendant’s motion. On October 14, 2025, the defendant filed his notice of appeal in this court.
II. ANALYSIS
¶ 30 On appeal, the defendant argues that (1) the charged images were not lewd as a matter of law and therefore could not constitute child pornography; (2) the State failed to prove defendant knowingly and voluntarily possessed child pornography beyond a reasonable doubt; (3) his trial counsel provided ineffective assistance by failing to adequately investigate evidence related to the charges against him; (4) the statute under which he was convicted was unconstitutionally vague as applied; and (5) the trial court considered inapplicable and improper factors in aggravation in sentencing defendant to prison.
¶ 31 A. The Charged Images Were Not Lewd as a Matter of Law
¶ 32 In evaluating defendant’s claims on appeal, we find that defendant’s second argument raised is dispositive of the appeal, and therefore, we will begin our analysis with that claim. In regard to this claim of error, the defendant argues that the trial court conflated nudity with lewdness, finding that they were the same. He contends that although they contain partial or full nudity of the minor females, none of the charged exhibits constitutes child pornography because they are not lewd exhibitions as they lack the required sexual content, activity, or paraphernalia to be considered lewd to an objective person. The defendant contends that we review this issue under a de novo standard, giving no deference to the trial court’s determinations. The State, meanwhile, argues that the images are lewd because there were more factors met in each photo than just nudity. The State contends that not every “lewdness factor” is required to be present for an image to be found lewd, and that in this case, each of the charged photographs and videos includes enough of the factors to be considered lewd. The State also contends that the appropriate standard of review in this case should be abuse of discretion, but that even under a de novo standard we should find the images lewd.
¶ 34 Correspondingly, we find that before evaluating the defendant’s other claims, we as the reviewing court must first, as a threshold inquiry, determine whether a particular image is lewd. People v. Lamborn, 185 Ill. 2d 585 (1999), 590. Because of the nature of the offense involved and the harm it causes to children, child pornography is a category of material that the first amendment does not protect. Lamborn, 185 Ill. 2d at 588-90. In determining whether a particular image involves a lewd exhibition of a child’s genitals under the child pornography statute, Illinois courts primarily consider the six factors set out by the Illinois Supreme Court in Lamborn. Lamborn, 185 Ill. 2d at 592.
¶ 36 The second Lamborn factor is whether the setting of the image is sexually suggestive. Lamborn, 185 Ill. 2d at 592. In evaluating this factor, Illinois courts have held that while some rooms or places, such as a bedroom or a bathroom, may be sexually suggestive in certain circumstances, there must be more than just the presence in a particular room or place to establish a sexual setting. See Sven, 365 Ill. App. 3d at 232; People v. Barger, 2020 IL App (3d) 160316, ¶ 14; see also Lewis, 305 Ill. App. 3d at 678; but see Knebel, 407 Ill. App. 3d at 1060.
¶ 39 The fifth Lamborn factor is whether the image suggests sexual coyness or a willingness to engage in sexual activity. Lamborn, 185 Ill. 2d at 592. In evaluating this factor, Illinois courts have held that for this factor to be satisfied, there should be evidence, such as gestures, facial expressions, or pose, that would suggest the subject of the photograph displayed a willingness to engage in sexual activity. Wayman, 379 Ill. App. 3d at 1057.
¶ 41 Not all of the above six factors need to be present for an image to be deemed lewd. Lamborn, 185 Ill. 2d at 592. Rather, the determination of whether an image is lewd involves an analysis of the image’s overall content, taking into account the age of the minor. Lamborn, 185 Ill. 2d at 592-93. The determination must be made on a case-by-case basis, using an objective standard. Lamborn, 185 Ill. 2d at 593-94. Because an objective standard is applied, the court must focus on the content of the photograph itself—and not on the conduct of the defendant—and may not consider the circumstances surrounding the taking of the photograph. Lamborn, 185 Ill. 2d 594-95.
1. People’s Exhibit 4 (Count I)
¶ 44 People’s Exhibit 4 is a 17-second-long video of a partially nude adolescent female with partially developed breasts fully exposed. The video is filmed by a separate individual and appears to be taking place in a finished basement living room type area due to the placement of the window on the roofline of the wall and the presence of couches and a large television in the room. As the video begins, the female’s entire body is visible in the frame, and she is only wearing underwear, socks, and slippers, with no other clothing. She is holding the pogo stick handles in her hands, with one foot on the pogo stick and one foot on the floor. The female appears to know she is being recorded because she looks straight ahead, then at the camera, then back straight ahead. As the female begins jumping on the pogo stick, the video zooms in on her clothed pubic area, and then moves upwards, focusing on her head and unclothed torso, though much of her legs and arms remain visible as well. The female then falls off the pogo stick and out of frame. As the female steps back into frame, the video zooms out to show her whole body again, and she returns to her starting position. The video then ends.
¶ 46 Turning to the second factor, the setting of the video appears to be a basement living room. There is nothing in the setting that would suggest or invite sexual activity. Therefore, we find that the video’s setting does not weigh in favor of finding it lewd.
¶ 47 Turning to the third factor, the adolescent female in the video is playing with a pogo stick, which is an age-appropriate activity. While she appears to know she is being recorded, she does not appear posed but instead appears to be actively playing in a moment of adolescent spontaneity. While the toplessness is inappropriate for the activity, we find it a minor factor here, as we note that we do not consider the nudity itself under this factor. Therefore, taken as a whole, we find that this factor does not weigh in favor of finding that the video was lewd.
¶ 49 Turning to the fifth factor, we note that there does not appear to be anything, including gestures, facial expressions, or the posing of the adolescent female, to suggest sexual coyness or willingness to engage in sexual activity. Therefore, we find that this factor does not weigh in favor of finding that the video was lewd.
¶ 50 Turning to the sixth and final factor, we note that the video does not appear to suggest an intention to elicit a sexual response in an objective viewer. Neither does the video appear to invite the viewer to perceive the images from a sexualized or deviant point of view, such as that of a voyeur, as the adolescent female appears to know she is being recorded. Therefore, we find that this factor does not weigh in favor of finding that the video was lewd.
2. People’s Exhibit 5 (Count II)
¶ 53 People’s Exhibit 5 is a 21-second-long video of two adolescent females in a shower with a glass door, with the condensation on the door partially obscuring them. It is being filmed by someone else, and it is unclear whether the two females know they are being recorded, though the video begins with one of them facing the camera. One or both females can be heard singing while showering. Both are fully nude. One female is facing in the direction of the camera when the video starts, and her breasts and genitals are visible. Midway through the video, she turns toward the other female, and her buttock is then pointed at the camera. The other female is standing at a 90-degree angle from the camera when the video starts, and during the video, she turns slightly to talk to the other female such that her breasts and genitals are visible.
¶ 55 Turning to the second factor, the setting of the video appears to be a shower in a bathroom. While a bathroom can sometimes be sexually suggestive in certain circumstances, we note that Illinois courts have said that there must be more than just a presence in a particular room to suggest a sexual setting. Here, there does not appear to be anything in the setting suggesting it is meant to be sexual in nature. Therefore, we find that this factor does not weigh in favor of finding that the video was lewd.
¶ 56 Turning to the third factor, both of the adolescent females are in the act of showering, which is an age-appropriate activity. Further, it appears to capture a moment of uninhibited adolescent spontaneity, as the females were singing while they were showering. Additionally, while nudity itself is not a factor to be considered under this factor, being nude in the shower is an ordinary and expected circumstance. In this context, the nudity is more appropriately explained by the setting and does not suggest sexual activity. Therefore, we find that this factor does not weigh in favor of finding that the video was lewd.
¶ 58 Turning to the fifth factor, we note that there does not appear to be anything, including gestures, facial expressions, or the posing of the adolescent females, to suggest sexual coyness or a willingness to engage in sexual activity on the part of the females. Therefore, we find that this factor does not weigh in favor of finding that the video was lewd.
¶ 59 Turning to the sixth and final factor, we note that nothing in the video suggests the video intended to elicit a sexual response from the viewer. Neither does the video appear to invite the viewer to perceive the images from a sexualized or deviant point of view. While an attempt to surreptitiously record can suggest voyeuristic intent, the video here appears more like an attempt to capture a spontaneous moment of uninhibited adolescence in the form of the child singing in the shower, which they may stop doing if they knew they were being recorded. Additionally, it is not clear that they do not know they are being recorded. Therefore, we find that this factor does not weigh in favor of finding that the video was lewd.
¶ 60 In evaluating all of the factors together, we find that only factor four weighs in favor of a finding of lewdness, while the remaining factors do not. Taking into account the overall content of the video and the age of minors, we find that while the video is again deplorable, it is not lewd and does not meet the standard for child pornography under Illinois law. Therefore, the defendant’s conviction and sentence on count II is hereby reversed and vacated.
¶ 61 3. People’s Exhibit 6 (Count V)
¶ 62 People’s Exhibit 6 is a photo depicting a toddler female with her arms outstretched above the heads of the two infant females lying next to her on a bed. The toddler appears to be looking at the camera, while the two infants do not appear to do so. One infant is fully in frame, while the other infant is on the edge of the photo, such that her right leg is partially obscured. The toddler is fully in frame except for her shins and feet. All three are fully nude and lying in a supine position on a “made up” bed with what appears to be clothes to the sides of them. One toddler is holding a shoe. The image shows all three females’ undeveloped breasts, and the genitals are visible on the toddler female in the middle as well as the infant female on the left side of the image.
¶ 63 Turning to the first factor, we note that the focal point of the photo appears to be the female toddler between the two female infants. The photograph appears to be taken from someone standing on the floor off the (unseen) edge of the bed, which, due to the angle of that position, causes the toddler’s genitals to be prominent in the image. Therefore, we find that factor one is at least somewhat applicable to this photo and, consequently, we find that this factor supports a finding that the photograph was lewd.
¶ 64 Turning to the second factor, the setting of the video appears to be a made bed. There is not much else visible in the photo to know exactly where the bed is located. While a bed can sometimes be sexually suggestive in certain circumstances, as noted supra, there must be more to suggest a sexual setting. Here, there does not appear to be anything in the setting suggesting that the setting is meant to be sexual in nature, such as the bed being messy or sexual paraphernalia being present. Therefore, we find that this factor does not weigh in favor of finding that the photograph was lewd.
¶ 65 Turning to the third factor, the posing of the three infant females is not suggestive or unnatural. Lying on their backs is a perfectly natural position for children of their apparent age. Therefore, we find that this factor does not weigh in favor of a finding of lewdness.
¶ 66 Turning to the fourth factor, both the infants and the toddler that appear in this photograph are fully nude. Because they are nude, we find that this factor does weigh in favor of finding that the photograph was lewd.
¶ 67 Turning to the fifth factor, we note that there does not appear to be anything, including gestures, facial expressions, or the posing of the toddler female or the infants, to suggest sexual coyness or willingness to engage in sexual activity. Therefore, we find that this factor does not weigh in favor of finding that the photograph was lewd.
¶ 68 Turning to the sixth and final factor, we note that the photograph does not appear to suggest an intention to elicit a sexual response in an objective viewer. Neither does the photograph appear to invite the viewer to perceive the images from a sexualized or deviant point of view, such as that of a voyeur, as the toddler female appears to know she is being photographed. Therefore, we find that this factor does not weigh in favor of finding that the photograph was lewd.
¶ 69 In evaluating all the factors together, we find that factors one and four are present, while factors two, three, five, and six are not. While not all factors need to be present to support a finding that a photograph is lewd, we find that, taking into account the overall content of the image and the age of the minors, the photograph is not lewd. Accordingly, we find that the photograph, although deplorable, does not constitute child pornography. Therefore, the defendant’s conviction and sentence on count V is hereby reversed and vacated.
4. People‘s Exhibit 7 through 12 (Counts VI through XI)
¶ 71 People‘s Exhibit 7 is a photograph depicting two prepubescent females standing in front of an ottoman in what appears to be a living room. Both females are fully nude, one with her arm around the other, facing away from the camera. Both females have toilet paper wedged in between their buttocks and are bent over at the waist with their buttocks presented towards the camera.
¶ 72 People‘s Exhibit 8 is a photograph and is similar to People‘s Exhibit 7. The same two young prepubescent females are standing in front of a glass door to the outside in what appears to be a living room, as there is part of an ottoman, a small chair, and a pillow in the room. Both females are fully nude and facing away from the camera. Both females have toilet paper wedged between their buttocks and are bent over at the waist, with their buttocks presented towards the camera.
¶ 73 People‘s Exhibit 9 is a photograph similar to People‘s Exhibits 7 and 8, with the photograph more closely resembling People‘s Exhibit 8. The same two young pubescent females are standing in front of a glass door to the outside in what appears to be a living room. Both females have toilet paper wedged in between their buttocks and are bent over at the waist even further than in People‘s Exhibit 8. One of the females has her hands on her knees, and the other has her hands at or near her ankles.
¶ 74 People‘s Exhibit 10 is a photograph that is similar to People‘s Exhibits 7, 8, and 9, where the same two prepubescent young females are standing in front of a glass door to the outside in what appears to be a living room. Both females are fully nude and standing with their backs arched. One female has toilet paper wedged in between her buttock and is holding the other end of the toilet paper in her hand as if pulling on it. The other female has one hand reaching back and touching or grabbing her buttock. Both females appear to be looking at the camera and are smiling.
¶ 75 People‘s Exhibit 11 is a photograph that is similar to People‘s Exhibits 7, 8, 9, and 10, with the photograph most closely resembling People‘s Exhibit 10. The same two prepubescent females are standing in front of a glass door in what appears to be a living room. Both females are fully nude and standing with their backs arched, though less arched than in People‘s Exhibit 10. One female still has toilet paper wedged in between her buttocks and is holding the other end of the toilet paper in her hand as if pulling on it; however, her buttock is now angled toward the camera. The other female now has toilet paper appearing to be wedged in between her buttock and is holding the other end of the toilet paper in her hand as if pulling on it.
¶ 76 People‘s Exhibit 12 is a photograph that is similar to People‘s Exhibits 7, 8, 9, 10, and 11, with the photograph most closely resembling People‘s Exhibits 10 and 11. The same two prepubescent females are standing in front of a glass door in what appears to be a living room. Both females are fully nude and are bent over at the waist with one hand on their knee. One has her buttock pointed towards the camera. Both females have toilet paper wedged between their buttocks and are holding the other end of the toilet paper in their hands as if pulling on it.
¶ 77 Turning to the first factor, we note that the focal point of this series of photographs is the two females and their buttocks with “toilet paper tails” wedged between them. It appears to this court that the tails appear to be the intended focal point, but due to their location, the photographs also center on the two females’ buttocks. Because we believe the focal point is the toilet paper tails, we find this factor does not weigh in favor of finding that the photograph was lewd.
¶ 78 Turning to the second factor, we find that the setting for this series of photographs is an ordinary living room, which is not suggestive of sexual activity. Therefore, we find that this factor does not weigh in favor of finding that the photograph was lewd.
¶ 79 Turning to the third factor, while the children in this series of photographs appear to be posing for the camera, their posing appears to emphasize the tails, and the children appear to be having fun, which suggests capturing moments of uninhibited adolescent spontaneity. Additionally, such play appears age-appropriate. As such, we find that this factor does not weigh in favor of finding that the photograph was lewd.
¶ 80 Turning to the fourth factor, the two female children in this series of photographs are completely nude. Therefore, we find that this factor does weigh in favor of a finding of lewdness.
¶ 81 Turning to the fifth factor, we note that there does not appear to be anything, including gestures, facial expressions, or the posing of the adolescent female, to suggest sexual coyness or willingness to engage in sexual activity. Therefore, we find that this factor does not weigh in favor of finding that the photograph was lewd.
¶ 82 Turning to the sixth and final factor, we note that the photograph does not appear to suggest an intention to elicit a sexual response in an objective viewer. Neither does the photograph appear to invite the viewer to perceive the images from a sexualized or deviant point of view, such as that of a voyeur, as both children clearly appear to know they are being photographed. Therefore, we find that this factor does not weigh in favor of finding that the photograph was lewd.
¶ 83 In evaluating all the factors together, we find that only factor four is present in this series of photographs, while the remaining factors are not. While not all factors need to be present to support a finding that a photograph is lewd, we find that, taking into account the overall content of the images and the apparent ages of the minors, the photograph is not lewd. Accordingly, we find that the photograph, although deplorable, does not constitute child pornography. Therefore, the defendant‘s convictions and sentences on counts VI, VII, VIII, IX, X, and XI are hereby reversed and vacated.
¶ 84 5. People‘s Exhibit 13 (Count XII)
¶ 85 People‘s Exhibit 13 is a photograph of two adolescent females in a shower, and it appears that the photo may have been taken at the same time as People‘s Exhibit 5. Both females are fully nude and appear in the act of showering. One female is facing away from the camera, and her buttocks are clearly visible. The other female is facing more towards the camera, and her breasts are visible, though obscured by the condensation on the shower door. The females appear to be having a conversation with each other and do not appear to know or be concerned about the photograph being taken.
¶ 86 Turning to the first factor, the focal point of the photograph, we note that the photograph is not zoomed in on any particular person or their body parts. Instead, the photograph appears to capture a large portion of the shower and both females, though it is clear the females are the subject of the photograph and not the shower itself. It does not appear as though the genitals, partially developed breasts, or buttocks are the focal point. Therefore, we find this factor does not weigh in favor of finding that the photograph was lewd.
¶ 87 Turning to the second factor, the setting of the photograph appears to be a shower in a bathroom. As noted supra, while a bathroom can sometimes be sexually suggestive in certain circumstances, there must be more than just a presence in a particular room to suggest a sexual setting. Here, there does not appear to be anything in the setting suggesting it is meant to be sexual in nature. Therefore, we find that this factor does not weigh in favor of finding that the photograph was lewd.
¶ 88 Turning to the third factor, both adolescent females appear to be in the act of showering, which is an age-appropriate activity. Additionally, while nudity itself is not a factor to be considered under this factor, being nude while in the shower is normally how one takes a shower, and thus the nudity is more appropriate than in other possible circumstances and does not suggest sexual activity. Therefore, we find that this factor does not weigh in favor of a finding of lewdness.
¶ 89 Turning to the fourth factor, we note that both adolescent females in this video appear to be fully nude. Because they are nude, we find that this factor does weigh in favor of finding that the photograph was lewd.
¶ 90 Turning to the fifth factor, we note that there does not appear to be anything, including gestures, facial expressions, or the posing of the adolescent females, to suggest sexual coyness or a willingness to engage in sexual activity on the part of the females. Therefore, we find that this factor does not weigh in favor of finding that the photograph was lewd.
¶ 91 Turning to the sixth and final factor, we note that nothing in the photograph suggests the video intended to elicit a sexual response from the viewer. However, the photograph here does somewhat appear to invite the viewer to perceive the images from a sexualized or deviant point of view. While an attempt to surreptitiously record can suggest voyeuristic intent, we note that the photograph here appears more like an effort to capture a spontaneous moment of uninhibited adolescence, namely the two girls showering together. Therefore, we find that this factor could go either way.
¶ 92 In evaluating all of the factors together, we find that only factor four weighs strongly in favor of a finding of lewdness, while factors one, two, three, and five do not. Meanwhile, factor six could go either way. Taking into account the overall content of the photograph and age of minors, we find that while the photograph is deplorable, it is not lewd and does not meet the standard for child pornography under Illinois law. Therefore, the defendant‘s conviction and sentence on count XII is hereby reversed and vacated.
¶ 93 B. Defendant‘s Remaining Claims of Error
¶ 94 We note that while the defendant raises five issues on appeal, we find that the first issue raised, whether the charged images are lewd as a matter of law, is dispositive of all claims of error on appeal. Therefore, we do not reach the defendant‘s remaining claims of error. See Goral v. Dart, 2020 IL 125085, ¶ 76 (reviewing courts ordinarily will not consider issues that are not critical to the disposition of the case presented or where the result will not be affected regardless of how the issues are decided).
¶ 95 III. CONCLUSION
¶ 96 Although we believe that the photographs and videos in this case are deplorable, we must find that, as a matter of law, they are not lewd nor do they constitute child pornography as defined by Illinois statute. Therefore, the judgments of guilty and the corresponding sentences imposed by the circuit court of Macon County in this case are reversed and vacated, and the matters are dismissed.
¶ 97 Reversed and dismissed.