{ "id": 122002, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBERT LAMBORN, Appellant", "name_abbreviation": "People v. Lamborn", "decision_date": "1999-02-19", "docket_number": "No. 85210", "first_page": "585", "last_page": "602", "citations": [ { "type": "official", "cite": "185 Ill. 2d 585" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "458 U.S. 747", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 636693 ], "weight": 24, "year": 1982, "pin_cites": [ { "page": "763" }, { "page": "1126" }, { "page": "3358" }, { "page": "758" }, { "page": "1123" }, { "page": "3355" }, { "page": "758" }, { "page": "1123" }, { "page": "3355" }, { "page": "759" }, { "page": "1124" }, { "page": "3355-56" }, { "page": "756" }, { "page": "1122" }, { "page": "3354" }, { "page": "764" }, { "page": "1127" }, { "page": "3358" }, { "page": "764" }, { "page": "1127" }, { "page": "3358" }, { "page": "764-65" }, { "page": "1127" }, { "page": "3358-59" } ], "opinion_index": 0, "case_paths": [ "/us/458/0747-01" ] }, { "cite": "812 F.2d 1239", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1694949 ], "weight": 5, "year": 1987, "pin_cites": [ { "page": "1245" }, { "page": "1245" }, { "page": "1245" }, { "page": "1245" } ], "opinion_index": 0, "case_paths": [ "/f2d/812/1239-01" ] }, { "cite": "122 Ill. 2d 313", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549652 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "326-27", "parenthetical": "holding that the State may, consistent with both the federal and Illinois constitutions, proscribe the knowing possession of child pornography in the home" }, { "page": "323-25" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0313-01" ] }, { "cite": "413 U.S. 15", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11338628 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/413/0015-01" ] }, { "cite": "175 Ill. 2d 166", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295827 ], "year": 1997, "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0166-01" ] }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "year": 1985, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "162 Ill. App. 3d 455", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3507309 ], "weight": 5, "year": 1987, "pin_cites": [ { "page": "460" }, { "page": "460-62" }, { "page": "461" }, { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/162/0455-01" ] }, { "cite": "186 Ill. App. 3d 116", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2654355 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "121-22" }, { "page": "122" }, { "page": "121-22" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0116-01" ] }, { "cite": "890 F.2d 241", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 12027513 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/f2d/890/0241-01" ] }, { "cite": "885 F.2d 117", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10525349 ], "weight": 7, "year": 1989, "pin_cites": [ { "page": "122" }, { "page": "122" }, { "page": "125" }, { "page": "125" }, { "page": "125" }, { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/f2d/885/0117-01" ] }, { "cite": "834 F.2d 442", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10546300 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/f2d/834/0442-01" ] }, { "cite": "636 F. Supp. 828", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3868154 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/f-supp/636/0828-01" ] }, { "cite": "30 Cal. App. 4th 174", "category": "reporters:state", "reporter": "Cal. App. 4th", "year": 1995, "opinion_index": 0 }, { "cite": "37 Cal. Rptr. 2d 327", "category": "reporters:state", "reporter": "Cal. Rptr. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "182 Ariz. 459", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1467863 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "463" }, { "page": "1349" } ], "opinion_index": 0, "case_paths": [ "/ariz/182/0459-01" ] }, { "cite": "174 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3515652 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "20-22", "parenthetical": "applying these six factors in determining that a search warrant was supported by probable cause to believe photographs in the defendant's possession constituted evidence of child pornography" }, { "page": "20" }, { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/0001-01" ] }, { "cite": "163 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477614 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-2d/163/0187-01" ] }, { "cite": "122 Ill. 2d 313", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549652 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "320" }, { "page": "320" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/122/0313-01" ] }, { "cite": "413 U.S. 15", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11338628 ], "weight": 3, "year": 1973, "opinion_index": 1, "case_paths": [ "/us/413/0015-01" ] }, { "cite": "155 Ill. 2d 392", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4810390 ], "year": 1993, "pin_cites": [ { "page": "398" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/155/0392-01" ] }, { "cite": "179 Ill. 2d 24", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801339 ], "year": 1997, "pin_cites": [ { "page": "43" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/179/0024-01" ] }, { "cite": "125 Ill. 2d 291", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5555329 ], "year": 1988, "pin_cites": [ { "page": "298" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/125/0291-01" ] }, { "cite": "31 Ill. 2d 202", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2833921 ], "year": 1964, "pin_cites": [ { "page": "207-08" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/31/0202-01" ] }, { "cite": "34 Ill. 2d 250", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2880427 ], "year": 1966, "pin_cites": [ { "page": "252" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/34/0250-01" ] }, { "cite": "46 Ill. 2d 576", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2898305 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "578" }, { "page": "578" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/46/0576-01" ] } ], "analysis": { "cardinality": 1101, "char_count": 31224, "ocr_confidence": 0.798, "pagerank": { "raw": 3.520382346743529e-07, "percentile": 0.8837708298823599 }, "sha256": "255fa9bbc5623a38997d07b0fd4b36ff06f1bcd267e4a1494c517a7f61aa498c", "simhash": "1:9a60616375088867", "word_count": 5162 }, "last_updated": "2023-07-14T18:01:39.203869+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBERT LAMBORN, Appellant." ], "opinions": [ { "text": "JUSTICE BILANDIC\ndelivered the opinion of the court:\nThe issue in this case is whether five photographs are \u201clewd\u201d for purposes of the Illinois child pornography statute. 720 ILCS 5/11 \u2014 20.1 (West 1996). We hold that two of the five photographs are lewd.\nFollowing a bench trial in the circuit court of Wood-ford County, defendant, Robert Lamborn, was convicted of two counts of producing child pornography. 720 ILCS 5/11 \u2014 20.1(a)(1)(vii) (West 1996). Defendant was also convicted of three counts of possessing child pornography. 720 ILCS 5/11 \u2014 20.1(a)(6) (West 1996). The trial court sentenced defendant to concurrent prison terms of 10 years for the two production counts and concurrent 3-year prison terms for the three possession counts. The trial court also fined defendant $2,000 for each production conviction, and $1,000 for each possession conviction. See 720 ILCS 5/11 \u2014 20.1(c) (West 1996). The appellate court affirmed all defendant\u2019s convictions and sentences. No. 4 \u2014 97\u20140723 (unpublished order under Supreme Court Rule 23). We allowed defendant\u2019s petition for leave to appeal. See 166 Ill. 2d R. 315. For the reasons set forth below, we affirm in part and reverse in part the judgment of the appellate court.\nFACTS\nTwo 13-year-old female victims, herein referred to as \u201cY\u201d and \u201cZ,\u201d went on a camping trip with defendant. The victims were friends, and Y knew defendant through his granddaughter. Defendant stipulated at trial that he knew that both Y and Z were under the age of 18; that he possessed the photographs at issue; and that he was the photographer of three of the photographs, Exhibit Nos. 2, 3, and 4. The State introduced as evidence the five photographs, which were taken on the camping trip.\nExhibit No. 1 depicts defendant standing in knee-high water completely naked, revealing a partial erection. Defendant is grabbing Z by the shoulder with his left arm, and the palm of his right hand is on the top of Z\u2019s head. Z is bending over slightly, and her right arm is extended around defendant\u2019s waist. Z is wearing a bikini swimsuit, but the bikini top is pulled down to her stomach, revealing her breasts.\nIn Exhibit No. 2, Y and Z are standing next to each other in knee-high water with one arm wrapped around the other\u2019s shoulder. Y and Z are topless, holding their bikini tops at their sides with their free hands. Y and Z are wearing bikini bottoms.\nExhibit No. 3 depicts Z standing in knee-high water with her back to the camera and her hands on her hips. Z\u2019s bikini bottom is slightly pulled down, partially revealing her buttocks. Y is in the background, fully covered by her bikini.\nIn Exhibit No. 4, Z is standing in knee-high water with her back to the camera. Z\u2019s bikini bottom is slightly pulled down, partially revealing her buttocks. Y is crouched down in the water next to Z. Y is fully covered by her bikini.\nExhibit No. 5 depicts defendant standing in knee-high water, completely naked, revealing a partial erection. Defendant has his left arm draped across Y\u2019s back. Y\u2019s right arm is resting on defendant\u2019s right shoulder. Y\u2019s bikini top is pulled down to her stomach, revealing her breasts.\nDefendant\u2019s two convictions for producing child pornography involve Exhibit Nos. 2, 3, and 4. These photographs do not include a depiction of defendant. Defendant\u2019s three convictions for possessing child pornography concern all five photographs.\nANALYSIS\nThe United States Supreme Court recognized child pornography as \u201ca category of material outside the protection of the First Amendment\u201d in New York v. Ferber, 458 U.S. 747, 763, 73 L. Ed. 2d 1113, 1126, 102 S. Ct. 3348, 3358 (1982). The reason underlying this holding is that the crime of child pornography is an offense against the child and causes harm \u201cto the physiological, emotional, and mental health\u201d of the child. Ferber, 458 U.S. at 758, 73 L. Ed. 2d at 1123, 102 S. Ct. at 3355. These harms result from \u201cthe trespass against the dignity of the child.\u201d United States v. Wiegand, 812 F.2d 1239, 1245 (9th Cir. 1987), citing Ferber, 458 U.S. at 758, 73 L. Ed. 2d at 1123, 102 S. Ct. at 3355. \u201cHuman dignity is offended by the pornographer. American law does not protect all human dignity; legally, an adult can consent to its diminishment. When a child is made the target of the pornographer-photographer, the statute will not suffer the insult to the human spirit, that the child should be treated as a thing.\u201d Wiegand, 812 F.2d at 1245. Child pornography is particularly harmful because the child\u2019s actions are reduced to a recording which could haunt the child in future years, especially in light of the mass distribution system for child pornography. See Ferber, 458 U.S. at 759, 73 L. Ed. 2d at 1124, 102 S. Ct. at 3355-56.\nThus, in Ferber, the Court held that a state could, consistent with the first amendment to the United States Constitution, prohibit the dissemination of material which depicts children under the age of 16 engaged in sexual conduct, regardless of whether the depiction is legally \u201cobscene.\u201d Ferber, 458 U.S. at 756, 73 L. Ed. 2d at 1122, 102 S. Ct. at 3354; see also People v. Geever, 122 Ill. 2d 313, 326-27 (1988) (holding that the State may, consistent with both the federal and Illinois constitutions, proscribe the knowing possession of child pornography in the home). The general obscenity standard enunciated in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973), therefore, does not govern the determination of whether material is child pornography. Ferber, 458 U.S. at 764, 73 L. Ed. 2d at 1127, 102 S. Ct. at 3358; Geever, 122 Ill. 2d at 323-25. To determine what constitutes child pornography: \u201cA trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole.\u201d Ferber, 458 U.S. at 764, 73 L. Ed. 2d at 1127, 102 S. Ct. at 3358. Nevertheless, a state\u2019s right to regulate child pornography is limited. The law must adequately define the prohibited conduct; the category of prohibited \u201csexual conduct\u201d must be suitably limited and described; the offense must be limited to works that visually depict sexual conduct by children below a specified age; and an element of scienter on the part of the defendant must be a component of the offense. Ferber, 458 U.S. at 764-65, 73 L. Ed. 2d at 1127, 102 S. Ct. at 3358-59.\nIn accordance with the standards set forth in Ferber, a person commits the offense of child pornography in Illinois by photographing or possessing photographs of any child whom the person knows or reasonably should know to be under the age of 18 where such child is \u201cdepicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed genitals, pubic area, buttocks, or, if such person is female, a fully or partially developed breast of the child or other person.\u201d (Emphasis added.) 720 ILCS 5/11 \u2014 20.1(a)(1)(vii), (a)(6) (West 1996). The meaning of the term \u201clewd exhibition\u201d is a question of statutory construction which this court reviews de novo. See Lucas v. Lakin, 175 Ill. 2d 166, 171 (1997). Parenthetically, we agree with the dissent that, when reviewing the sufficiency of the evidence in a criminal case, the proper standard of review is whether, after-viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See People v. Collins, 106 Ill. 2d 237, 261 (1985). Here, however, we are interpreting the meaning of the statutory term \u201clewd exhibition.\u201d See 720 ILCS 5/11\u2014 20.1(a)(1)(vii), (a)(6) (West 1996). We must review the photographs themselves and determine whether those photographs are lewd under the child pornography statute. We are not faced with reviewing the sufficiency of the evidence. Therefore, the de novo standard of review is the correct standard of review for this appeal.\nIn the present case, defendant argues that the five photographs depict mere nudity without lewdness and thus are not child pornography. Defendant asserts that if the subjects of the photographs were fully clothed, the photographs would be unremarkable. According to defendant, the photographs neither depict sexual activity nor focus on nudity. Rather, the photographs capture uninhibited adolescent spontaneity. We disagree with defendant as to Exhibit No. 1 and Exhibit No. 5 and hold that these two photographs are lewd under the child pornography statute. Both of the lewd photographs depict defendant posing completely naked in knee-high water, with his arm around a topless victim.\nThis court has not previously defined \u201clewd.\u201d Our appellate court in People v. Walcher, 162 Ill. App. 3d 455 (1987), defined \u201clewd\u201d as \u201c \u2018[o]bscene, lustful, indecent, lascivious, lecherous.\u2019 \u201d Walcher, 162 Ill. App. 3d at 460, quoting Black\u2019s Law Dictionary 817 (5th ed. 1981). The Walcher court held that certain photographs were lewd under the former Illinois child pornography statute, which prohibited the visual depiction of a minor in a pose involving a lewd exhibition of the genitals (see Ill. Rev. Stat. 1985, ch. 38, par. 11 \u2014 20.1(a)(1)(vii)). Walcher, 162 Ill. App. 3d at 460-62. In finding the photographs lewd, the Walcher court reasoned that the central focus of the photographs was to exhibit and emphasize the genitals of young girls. Walcher, 162 Ill. App. 3d at 461. The photographs were \u201cobviously intended to excite sexual desire\u201d and were \u201cnot simply incidental pictures of partial nudity.\u201d Walcher, 162 Ill. App. 3d at 461.\nLikewise, in People v. Johnson, 186 Ill. App. 3d 116, 121-22 (1989), the appellate court applied the Walcher court\u2019s definition of lewd in determining that photographs displaying the genitals of young girls and boys were lewd. The Johnson court noted that the photographs did not merely capture an \u201cuninhibited moment of ado-descent spontaneity.\u201d Johnson, 186 Ill. App. 3d at 122. Rather, the children were staged in erotic poses that provided an unobstructed view of the subjects\u2019 genitals, buttocks, and breasts. Johnson, 186 Ill. App. 3d at 121-22.\nSimilarly, other courts have considered the following factors in assessing whether a visual depiction of a child constitutes the lascivious or lewd exhibition of the genitals: (1) whether the focal point of the visual depiction is on the child\u2019s 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 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 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. See, e.g., United States v. Wolf, 890 F.2d 241 (10th Cir. 1989); United States v. Villard, 885 F.2d 117 (3d Cir. 1989); United States v. Rubio, 834 F.2d 442 (5th Cir. 1987); United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff\u2019d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987); People v. Kongs, 30 Cal. App. 4th 174, 37 Cal. Rptr. 2d 327 (1995); State v. Gates, 182 Ariz. 459, 897 P.2d 1345 (App. 1994); see also People v. Hebel, 174 Ill. App. 3d 1, 20-22 (1988) (applying these six factors in determining that a search warrant was supported by probable cause to believe photographs in the defendant\u2019s possession constituted evidence of child pornography), overruled in part on other grounds, People v. Lawson, 163 Ill. 2d 187 (1994). The visual depiction need not involve all of these factors to be considered lewd. Villard, 885 F.2d at 122; Hebel, 174 Ill. App. 3d at 20. Rather, the determination of whether the visual depiction is lewd will involve an analysis of the overall content of the depiction, taking into account the age of the minor. Villard, 885 F.2d at 122; Hebei, 174 Ill. App. 3d at 20. This determination must therefore be made on a case-by-case basis.\nExhibit Nos. 2, 3, and 4\nConsidering the overall content of Exhibit Nos. 2, 3, and 4 in light of the preceding discussion, we hold that these three photographs are not lewd. Exhibit No. 2 depicts the topless victims standing next to each other in knee-high water with one arm wrapped around the other\u2019s shoulder. The victims are holding their bikini tops at their sides with their free hands. This photograph merely displays two teenage girls revealing their breasts while swimming together. Although nothing in this photograph detracts the viewer\u2019s attention from the nudity, the photograph does not depict the victims in sexually suggestive poses, and the victims are not necessarily in inappropriate attire, considering their age. This photograph is best described as capturing an uninhibited moment of adolescent spontaneity, in which two teenage girls whimsically pull off their bikini tops while swimming together.\nLikewise, although the buttocks of one of the victims are partially revealed in Exhibit Nos. 3 and 4, the focus of these photographs is not on the victim\u2019s buttocks. Exhibit Nos. 3 and 4 depict the two victims together in the water. In both photographs, one of the victims is fully covered by her bikini, and the other victim has her back to the camera with her bikini bottom pulled down, partially revealing her buttocks. The second victim, fully covered by her bikini, is also in both of the photographs, thereby detracting the viewer\u2019s attention from the nudity. The victims are also not in sexually suggestive poses. In fact, the victims are not in any pose. Rather, the victims are talking while standing in the water and appear to be cleaning sand out of their swimsuits. Exhibit Nos. 3 and 4, therefore, merely reveal incidental pictures of partial nudity. Nudity without lewdness is not child pornography.\nThe State argues that we should consider that trial evidence indicated that it was defendant\u2019s idea for the victims to get undressed. The State also argues that we should consider the totality of the circumstances surrounding the taking of these photographs, e.g., that defendant abused his position of supervision and trust over the victims by offering the victims cigarettes and alcohol while on the camping trip; and that the victims suffered severe emotional harm as a result of the photographs. It is the State\u2019s contention that we should apply a subjective standard in determining whether material is lewd for purposes of the child pornography statute. We disagree. Courts should apply an objective standard in determining whether material is child pornography. Accordingly, application of the sixth factor, i.e., whether the visual depiction is intended or designed to elicit a sexual response in the viewer, refers to the objective viewer.\nThus, whether defendant was aroused by the photographs is irrelevant in determining whether the photographs are lewd. A determination that a photograph constitutes child pornography focuses on the photograph itself, not on the effect that the photograph has on an individual viewer. See Villard, 885 F.2d at 125. \u201cAlthough 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.\u201d (Emphasis in original.) Villard, 885 F.2d at 125. \u201cPrivate fantasies\u201d are not within the ambit of the child pornography statute. See Villard, 885 F.2d at 125; Wiegand, 812 F.2d at 1245. Therefore, pictures of nude children do not necessarily become child pornography when they reach the hands of a pedophile. See Villard, 885 F.2d at 125; Wiegand, 812 F.2d at 1245. Accordingly, a defendant\u2019s intent does not create a lewd exhibition out of the otherwise innocent activity of children. See Gates, 182 Ariz. at 463, 897 P.2d at 1349.\nFrom an objective viewpoint, Exhibit Nos. 2, 3, and 4 cannot be deemed to be intended or designed to elicit a sexual response in the viewer. These photographs depict the incidental nudity of two teenage girls who are swimming together in a river. The photographs show the teenagers engaged in nonsexual conduct that is not necessarily abnormal for the age and activity being photographed. Although we abhor defendant\u2019s exploitation of the victims in this case, an objective review of Exhibit Nos. 2, 3, and 4 reveals that these photographs are not lewd for purposes of the child pornography statute.\nExhibit Nos. 1 and 5\nConsidering the overall content of Exhibit Nos. 1 and 5, we hold that these two photographs are lewd. Both of the photographs depict defendant standing completely naked in knee-high water with his arm around a topless victim. The focus of the photographs is on the nudity contained therein. Although the pictures also reveal the river and background trees, defendant and the victims are posed directly in front of the camera. Nothing in the photographs detracts from the view of the victims\u2019 breasts and defendant\u2019s genitals.\nThese photographs are not simply incidental pictures of partial nudity. The photographs reveal that defendant and the victims did not accidentally or suddenly lose their clothes. Defendant is completely naked, and his clothes are nowhere in sight. The tops of the victims\u2019 bikinis are deliberately pulled down to the bottom of their stomachs so as to reveal their breasts.\nFurther, the victims are depicted in an unnatural pose and in inappropriate attire. The topless 13-year-old victims are standing next to the completely naked 61-year-old defendant. In both photographs, defendant has a partial erection and is holding the victims in such a way as to draw them closer to him. In Exhibit No. 1, defendant is grabbing the victim by the shoulder with his left arm, and the palm of his right hand is on the top of the victim\u2019s head. Defendant appears to be pushing the victim downward. In Exhibit No. 5, defendant\u2019s left arm is draped across the victim\u2019s back, and his left hand is resting below the victim\u2019s breast. The bikini tops of both of the victims are pulled down to their stomachs, thereby exposing their breasts to the camera. These photographs certainly do not capture uninhibited adolescent spontaneity. The photographs depict the victims in poses involving a lewd exhibition of defendant\u2019s unclothed penis and of the victims\u2019 unclothed partially developed breasts. Defendant, therefore, possessed photographs that are lewd under our child pornography statute.\nThe dissent contends that our holding that Exhibit No. 2 is not lewd conflicts with our holding that Exhibit Nos. 1 and 5 are lewd. The dissent\u2019s rationale is flawed. First, the dissent states that there is no material difference between the depiction of the victims in Exhibit No. 2 and the depiction of the victims in Exhibit Nos. 1 and 5, which we find to constitute child pornography. In support, the dissent reasons merely that the victims are topless in all three of these photographs. A proper determination of whether a photograph is lewd, however, requires a review of the overall content of the photograph. As we discussed in detail above, the overall content of the photographs demonstrates that Exhibit No. 2 is not lewd under our child pornography statute, and that Exhibit Nos. 1 and 5 are lewd.\nNext, the dissent claims that we erroneously rely upon the fact that Exhibit Nos. 1 and 5 involve a lewd exhibition of defendant\u2019s unclothed penis, and of the victims\u2019 unclothed breasts. The dissent asserts that an adult\u2019s nudity is not covered by the child pornography statute. This statement is not correct to the extent that it finds defendant\u2019s nudity in the photographs to be irrelevant. Certainly, Exhibit Nos. 1 and 5 would not constitute child pornography if they did not contain a child. Exhibit Nos. 1 and 5, however, each contain a depiction of a young victim baring her unclothed breasts. In addition, Exhibit Nos. 1 and 5 depict the defendant, totally nude, revealing his unclothed genitals, and with his arm around a topless victim. Defendant\u2019s presence in the photographs is a factor that supports our holding that Exhibit Nos. 1 and 5 are lewd.\nFinally, the dissent questions our holding that Exhibit No. 2 is not lewd, given that we note our abhorrence with defendant\u2019s exploitation of the victims. As we previously stated, though, courts must apply an objective standard of review in determining whether material constitutes child pornography. Application of this objective standard requires us to focus on the photograph itself, and not on the circumstances surrounding the taking of the photograph, at which our comment is directed.\nCONCLUSION\nExhibit Nos. 2, 3, and 4 are not lewd under our child pornography statute. Accordingly, we reverse defendant\u2019s convictions and vacate his sentences and fines on counts II and V for producing child pornography. We also reverse defendant\u2019s conviction and vacate his sentence and fine on count VI for possessing child pornography. Exhibit Nos. 1 and 5, however, are lewd under our child pornography statute. We therefore affirm defendant\u2019s convictions on counts III and IV for possessing child pornography. Defendant\u2019s concurrent three-year prison terms and fines for these two possession counts are affirmed. The judgment of the appellate court is affirmed in part and reversed in part.\nAffirmed in part; reversed in part; sentences vacated in part.\nJUSTICE RATHJE took no part in the consideration or decision of this case.", "type": "majority", "author": "JUSTICE BILANDIC" }, { "text": "JUSTICE HEIPLE,\ndissenting:\nDefendant was convicted of two counts of producing child pornography (720 ILCS 5/11 \u2014 20.1(a)(1)(vii) (West 1996)) and three counts of possessing it (720 ILCS 5/11\u2014 20.1(a)(6) (West 1996)) on the basis of five Polaroid photographs he took of two 13-year-old girls at a campsite near the Mackinaw River. The trial court sentenced defendant to concurrent prison terms of 10 years for the two production counts and 3 years for the possession counts.\nCuriously, the prosecutor separated the five photographs into the two separate categories of production and possession for purposes of prosecution. The production charges were directed at the two Polaroid photos he personally took with the camera. The three possession charges were directed at the Polaroid photos in which he posed with one of the girls while the other girl snapped the picture. In truth, he could as well have been charged with both possession and production as to all of the photographs since this episode was a single frolic while two 13-year-old girls were in his custody.\nThe majority, applying a de novo standard of review, affirms defendant\u2019s convictions for possession of child pornography, but reverses his convictions for production of child pornography based solely on its own belief that the three photographs which form the basis for his production convictions are not \u201clewd\u201d under the child pornography statute. A de novo standard of review, however, is inappropriate when reviewing the sufficiency of the evidence in a child pornography case. Moreover, one of the photographs in this case, State\u2019s Exhibit No. 2, could be deemed sufficient to support at least one of defendant\u2019s convictions for production of child pornography. Therefore, I respectfully dissent.\nThe majority is undoubtedly correct that this court will review questions of statutory construction, such as the meaning of the term \u201clewd exhibition\u201d in the child pornography statute, under a de novo standard of review. 185 Ill. 2d at 590. The de novo standard of review, however, is completely inappropriate when this court reviews the sufficiency of the evidence in a child pornography case. No statute has been cited which requires interpretation by this court. Once the trier of fact makes a factual determination that the photographs in question depict the victims in poses which focus on their breasts and buttocks and are obviously intended to excite sexual desire, this court has no authority to substitute its own judgment for that of the trier of fact. See People v. Harre, 155 Ill. 2d 392, 398 (1993). Rather, this court, as a court of review, must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Digirolamo, 179 Ill. 2d 24, 43 (1997).\nWhen the correct standard of review is applied, State\u2019s Exhibit No. 2 is more than sufficient to support one of defendant\u2019s convictions for production of child pornography. State\u2019s Exhibit No. 2 does not depict the victims swimming or frolicking in the river, as the majority fancifully suggests. The topless 13-year-old children are posed, standing arm in arm and smiling coyly at the camera as they dangle the tops of their bikinis from their hands. The photograph depicts the victims performing a striptease, and the sexual content of the photograph is obvious. The majority\u2019s statement that it finds nothing \u201cnecessarily abnormal\u201d about this \u201cwhimsical [ ],\u201d \u201cuninhibited moment of adolescent spontaneity\u201d is inexplicable. How can the majority justify its holding when it also proclaims, \u201c[W]e abhor defendant\u2019s exploitation of the victims in this case\u201d? 185 Ill. 2d at 593, 595.\nMoreover, there is no material difference between the depiction of the victims in State\u2019s Exhibit No. 2 and State\u2019s Exhibit Nos. 1 and 5, which the majority agrees constitute child pornography. Thus, the majority\u2019s assertion that the victims are \u201cnot necessarily in inapproprir ate attire\u201d in State\u2019s Exhibit No. 2 is self-contradictory. The victims are wearing exactly the same attire in State\u2019s Exhibit Nos. 1 and 5 as in State\u2019s Exhibit No. 2. In all three photographs, the victims are wearing bikinis and have removed their bikini tops to reveal their breasts. The only difference between State\u2019s Exhibit No. 2 and State\u2019s Exhibit Nos. 1 and 5 is that the victims are posed together rather than with defendant. While the presence of the nude defendant in State\u2019s Exhibit Nos. 1 and 5 is an obvious indicator that those photographs are \u201cintended to excite sexual desire,\u201d his absence from the photograph in State\u2019s Exhibit No. 2 does not alter the comparable depiction of the children, nor does it somehow strip State\u2019s Exhibit No. 2 of its sexual content.\nIt has been said that bad cases make bad law. This is just such a case. What the court is really choking on here is the 10-year sentence meted out to this defendant on the production of child pornography charge. The range of sentences for this conviction is 4 to 15 years. 720 ILCS 5/11 \u2014 20.1(c) (West 1996); 730 ILCS 5/5 \u2014 8\u20141(a)(4) (West 1996). The range of sentences for the possession charge at the time of defendant\u2019s sentencing was one to three years. 720 ILCS 5/11 \u2014 20.1(c) (West 1996); 730 ILCS 5/5 \u2014 8\u20141(a)(7) (West 1996). Defendant received a three-year sentence on that charge, which the majority is willing to affirm.\nParenthetically, a reasonable person would likely conclude that production of child pornography as defined in the statute is aimed most strongly at the person who is producing child pornography for purposes of distribution and use that is broader than the mere posing and snapping of a picture which the defendant did in this case. Hence, the shock to the majority of a 10-year sentence where the permissible range of sentences is 4 to 15 years is understandable.\nYet, instead of opting to merely reduce the sentence, the majority opts to overthrow the accepted standard of review and erroneously asserts an improper de novo standard. This approach, which overthrows the accepted and long-standing standard of review, creates a new and unfortunate standard simply to reach a desired result. This is a clear example of result-oriented decisionmaking which is improper and has long been rightfully condemned. The majority opinion thus distorts the law and clearly implies that the personal predilections of the individual members of this court, not reason and precedent, guide this court\u2019s decisionmaking.\nShocked at the lengthy sentence, the only correct and intellectually honest approach for the majority would have been to reduce the 10-year sentence, an approach that is legally acceptable and within the province of this court under Supreme Court Rule 615(b)(4). See People v. O\u2019Neal, 125 Ill. 2d 291, 298 (1988). For the reasons given, I respectfully dissent.\nThis court has applied a de novo standard of review when determining whether materials are obscene under the test established by the United States Supreme Court in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). See City of Chicago v. Kimmel, 31 Ill. 2d 202, 207-08 (1964); City of Chicago v. Universal Publishing & Distributing Co., 34 Ill. 2d 250, 252 (1966); City of Chicago v. Geraci, 46 Ill. 2d 576, 578 (1970). This standard of review is inappropriate in this case for two reasons. First, the Miller obscenity standard does not apply to child pornography. People v. Geever, 122 Ill. 2d 313, 320 (1988). Child pornography cases do not require a determination whether the work in question, taken as a whole, has serious literary, artistic, political or scientific value. Geever, 122 Ill. 2d at 320. Second, this case does not involve an issue of constitutional interpretation. Defendant does not allege that the photographs he produced and possessed are constitutionally protected. A de novo standard of review was appropriate in the obscenity cases because the defendants argued the materials they possessed were protected under the first amendment, and this court had to make \u201can independent constitutional judgment as to whether the publications in issue are obscene or constitutionally protected.\u201d (Emphasis added.) Geraci, 46 Ill. 2d at 578. This case, by contrast, begins and ends with a far more pedestrian inquiry: Are the photographs in question sexually suggestive? There is no constitutional question inherent in such an inquiry.\nThe majority emphasizes that State\u2019s Exhibit Nos. 1 and 5 \u201cinvolv[e] a lewd exhibition of defendant\u2019s unclothed penis and of the victims\u2019 unclothed partially developed breasts.\u201d (Emphasis added.) 185 Ill. 2d at 596. Defendant, however, is an adult, not a child, and his nudity is not covered by the child pornography statute.\nAfter defendant\u2019s sentencing, the General Assembly increased possession of child pornography from a Class 4 felony to a Class 3 felony. See Pub. Act 90 \u2014 68, \u00a7 2, eff. July 8, 1997, codified at 720 ILCS 5/11 \u2014 20.1(c). The range of sentences for possession of child pornography is now to two to five years. 730 ILCS 5/5 \u2014 8\u20141(a)(6) (West 1996).", "type": "dissent", "author": "JUSTICE HEIPLE," } ], "attorneys": [ "Gary G. Johnson, of Bloomington, for appellant.", "James E. Ryan, Attorney General, of Springfield (Barbara A. Preiner and Joel D. Bertocchi, Solicitors General, and William L. Browers and Russell K. Benton, Assistant Attorneys General, of Chicago, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 85210.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBERT LAMBORN, Appellant.\nOpinion filed February 19, 1999\n\u2014 Rehearing denied March 29, 1999.\nRATHJE, J., took no part.\nHEIPLE, J., dissenting.\nGary G. Johnson, of Bloomington, for appellant.\nJames E. Ryan, Attorney General, of Springfield (Barbara A. Preiner and Joel D. Bertocchi, Solicitors General, and William L. Browers and Russell K. Benton, Assistant Attorneys General, of Chicago, of counsel), for the People." }, "file_name": "0585-01", "first_page_order": 595, "last_page_order": 612 }