2020 IL App (3d) 160316
Opinion filed August 14, 2020 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ) of the 14th Judicial Circuit, ILLINOIS, ) Whiteside County, Illinois. ) Plaintiff-Appellee, ) Appeal No. 3-16-0316 ) Circuit No. 15-CF-70 v. ) ) The Honorable ) Stanley B. Steines, DREW W. BARGER, ) Judge, presiding.
Defendant-Appellant. ____________________________________________________________________________
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, defendant, Drew W. Barger, was convicted of child pornography, a
Class 2 felony (720 ILCS 5/11-20.1(a)(1)(vii), (a)(6), (c-5) (West 2014)), and was sentenced to
an extended term of 10 years in prison. Defendant appeals, arguing 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. We agree with defendant’s first argument
and do not, therefore, address defendant’s second argument. Accordingly, we reverse
defendant’s conviction and sentence outright.
¶2 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 matters pertaining to the drug investigation, and a hidden folder
containing images alleged by the State to constitute child pornography was found. A second
search warrant was obtained, the images were extracted, and police officers questioned defendant
about the images. Defendant initially denied knowledge of the hidden folder but eventually
admitted that he had downloaded the images onto his phone. Defendant told police that he had
been searching for “nudism” or “nudist” on the Internet and was interested in all types of
pornography. Defendant acknowledged that the subjects depicted in the images looked
“younger” but stated he thought that the girls in the pictures were of age and that the pictures
were legal because the pictures were being shown on the Internet on public websites.
¶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. Defendant
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.
2 ¶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 nude.
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 forward 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.
¶7 II. ANALYSIS
3 ¶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 dictates
the outcome of this case. As to the first argument, defendant asserts that the photograph did not
constitute child pornography because it did not contain a lewd exhibition (referred to hereinafter
at times simply as lewd or lewdness) of the child’s genitals, as required under the law and as
charged in this case. According to defendant, only one of the six case law factors for determining
whether an image is lewd (set forth below) was present in this case—that the child in the
photograph was naked—and the child’s nudity alone was not sufficient to render the photograph
lewd for the purpose of the child pornography statute. In making that assertion, defendant
contends that the State cannot use that one factor—the child’s nudity—to satisfy all of the other
case law factors; otherwise, the test would be a one-factor test, rather than a six-factor test. For
all of the reasons stated, defendant asks that we reverse outright his conviction of child
pornography.
¶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.
4 ¶ 10 In cases such as this, where 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
pornography 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 (or
transparently clothed) genitals, pubic area, buttocks, or fully or partially developed breast (if
female). 1 See 720 ILCS 5/11-20.1(a)(1)(vii), (a)(6) (West 2014); Illinois Pattern Jury
Instructions, Criminal, No. 9.30 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 9.30); Lamborn,
185 Ill. 2d at 590; Sven, 365 Ill. App. 3d at 228-29. In determining whether a particular image
involves a lewd exhibition of a child’s genitals for the purpose of the child pornography statute,
courts consider the following six case law factors: (1) whether the focal point of the image is on
the child’s genitals, (2) whether the setting of the image is sexually suggestive, (3) whether the
1 In this particular case, it was alleged that the child in the photograph was under the age of 13, which made the charge a Class 2 felony, rather than a Class 3 felony. See 720 ILCS 5/11-20.1(c), (c-5) (West 2014). 5 child is depicted in an unnatural pose or in inappropriate attire considering the age of the child,
(4) whether the child is fully or partially clothed or nude, (5) whether the image suggests sexual
coyness or a willingness to engage in sexual activity, and (6) whether the image is intended or
designed to elicit a sexual response in the viewer. Lamborn, 185 Ill. 2d at 592. Not all of the
above six factors need to be present for an image to be deemed lewd. Id. Rather, the
determination of whether an image is lewd involves an analysis of the overall content of the
image, taking into account the age of the minor. Id. at 592-93. The determination must be made
on a case-by-case basis, using an objective standard. Id. 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 or whether the defendant was aroused by the photograph in determining whether the
photograph is lewd. Id. at 594-95; Sven, 365 Ill. App. 3d at 231.
¶ 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 720 ILCS 5/11-20.1(a)(1)(vii), (a)(6) (West 2014); IPI Criminal 4th No. 9.30; Lamborn,
185 Ill. 2d at 590-93; Sven, 365 Ill. App. 3d at 228-31. In our opinion, only one of the six case
law factors for determining lewdness was present in the instant case—that the child was
completely naked in the photograph (the fourth factor). The remaining five factors were not
present.
¶ 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 to 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
6 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 forefront 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).
¶ 14 With regard to the second factor, there was nothing sexually suggestive about the beach
setting of the photograph in the instant case. See Lewis, 305 Ill. App. 3d at 678 (stating that the
setting of the photograph in question was not sexually suggestive, even though the setting was a
bedroom, where the bedroom setting and the made-up bed in the background of the photograph
were not used to suggest sexual activity or sexual meaning in the photograph). The photograph in
this case was taken during the daytime, and it is impossible to tell from the limited area in view
whether the beach was secluded as the State suggests. In reaching that conclusion, we reject the
State’s assertion that the beach is a sexual setting for the purpose of the case law factors merely
because there have been sex scenes that have occurred on the beach in movies and television. If
that was the standard, it would be difficult to find any place that did not constitute a sexual
setting.
7 ¶ 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 seated 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 photograph 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).
8 ¶ 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 may very well be a result of the
height of the tether ball/ball swing.
¶ 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 law. 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 the 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
9 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 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.
¶ 19 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.
2 The trial court in the Wayman case also determined that the mother’s testimony was insufficient to establish that two other photographs, which were allegedly the same as the first two photographs but had been cropped and enlarged to show the daughter’s genitals and buttocks only, were lewd for the purpose of the child pornography statute. See Wayman, 379 Ill. App. 3d at 1058-61. 10 ¶ 24 Years ago, retailers would advertise children’s underwear in catalogs and flyers, including
photos of children modeling underwear. The prurient interests of sexual deviants have since put a
cease to that practice. Nonetheless, the nudity displayed in this picture of the young female, no
matter how uncomfortable, does not necessarily make the photograph pornographic. See Sven, 365
Ill. App. 3d at 230 (noting that simple nudity, while a factor to consider, is not sufficient in itself
to render an image lewd).
¶ 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 citing 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 594-95 (“ ‘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, 855 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 reasonably should
know is under the age of 18 (720 ILCS 5/11-20.1(a)(6) (West 2014)), where the child is “depicted
11 or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed or
transparently clothed genitals, pubic area, buttocks, or, if such person is female, a fully or partially
developed breast of the child or other person” (id. § 11-20.1(a)(1)(vii)). Where the child depicted
is under the age of 13, a violation of section 11-20.1(a)(6) is a Class 2 felony. Id. § 11-20.1(c-5).
¶ 30 To convict a person of a Class 2 felony of the offense of child pornography, the State must
prove beyond 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. Id. § 11-
20.1(a)(1)(vii), (a)(6), (c-5). The Illinois Supreme Court has enumerated six factors to consider in
determining whether a photograph of a child constitutes a “lewd exhibition of the unclothed
genitals.” Those factors are (1) whether the focal point of the visual depiction is on the child’s
genitals, (2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or
pose generally associated with sexual activity, (3) whether the child is depicted in a unnatural pose,
or in inappropriate attire, considering the age of the child, (4) whether the child is fully or partially
clothed or nude, (5) whether the visual depiction suggests sexual coyness or a willingness to
engage in sexual activity, and (6) whether the visual depiction is intended or designed to elicit a
sexual response in the viewer. Lamborn, 185 Ill. 2d at 592. A photograph need not involve all the
listed factors to be considered lewd. Id. A court’s determination of lewdness should be made on a
case-by-case basis. Id. at 593.
¶ 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
12 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 top 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 described 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
13 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 photograph 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).
¶ 37 The sixth factor is the most compelling factor in this case: whether the visual depiction is
intended or designed to elicit a sexual response in the viewer. The proper inquiry for this factor
focuses on whether the image invites the viewer to perceive the image from some sexualized or
deviant point of view. Sven, 365 Ill. App. 3d at 238. Lewdness is not a characteristic of the child
photographed but of “ ‘the exhibition which the photographer sets up for an audience that consists
of himself or likeminded pedophiles.’ ” (Emphasis omitted.) Id. at 238-39 (quoting United States
v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987)). Here, the photo was intended to elicit a sexual
response in the eyes of the viewer. The nude child is sitting on top of and straddling a tether ball
while holding onto a pole. The rope tied to the ball runs along her vagina and up to the pole. The
photographer has framed the picture from a lower angle, highlighting the child’s genitals and the
14 rope’s position in relation to her genitals. The majority’s assertion that the lower angle of the
photograph may be a result of the height of the tether ball, and nothing more, is naïve. This
photograph of a young female child straddling a tether ball in the nude while grabbing a pole has
a phallic characteristic that the photographer set up for an audience of “likeminded pedophiles.”
Exhibit 4 depicts a lewd exhibition of the unclothed genitals of a child.
¶ 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
15 No. 3-16-0316
Decision Under Review: Appeal from the Circuit Court of Whiteside County, No. 15-CF- 70; the Hon. Stanley B. Steines, Judge, presiding.
Attorneys James E. Chadd, Peter A. Carusona, and Adam N. Weaver, of for State Appellate Defender’s Office, of Ottawa, for appellant. Appellant:
Attorneys Terry A. Costello, State’s Attorney, of Morrison (Patrick for Delfino, David J. Robinson, and Stephanie L. Raymond, of Appellee: State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.