{ "id": 3535355, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARRY CROWELL, Defendant-Appellant", "name_abbreviation": "People v. Crowell", "decision_date": "1986-06-30", "docket_number": "No. 85\u2014749", "first_page": "341", "last_page": "348", "citations": [ { "type": "official", "cite": "145 Ill. App. 3d 341" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "411 N.E.2d 1012", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 400", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5540457 ], "pin_cites": [ { "page": "405-06" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0400-01" ] }, { "cite": "347 N.E.2d 733", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "63 Ill. 2d 296", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5428466 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "298" }, { "page": "298-99" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0296-01" ] }, { "cite": "99 S. Ct. 2858", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "61 L. Ed. 2d 296", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "442 U.S. 929", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531938, 1532133, 1531912, 1532202, 1532170, 1532010, 1532021, 1531990, 1532122, 1532092, 1531806 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/442/0929-02", "/us/442/0929-01", "/us/442/0929-10", "/us/442/0929-03", "/us/442/0929-08", "/us/442/0929-11", "/us/442/0929-04", "/us/442/0929-09", "/us/442/0929-05", "/us/442/0929-06", "/us/442/0929-07" ] }, { "cite": "385 N.E.2d 671", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1979, "opinion_index": 0 }, { "cite": "74 Ill. 2d 329", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994485 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0329-01" ] }, { "cite": "421 N.E.2d 1341", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "96 Ill. App. 3d 891", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12143630 ], "pin_cites": [ { "page": "902" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0891-01" ] }, { "cite": "374 N.E.2d 472", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "71 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5449753 ], "year": 1981, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0095-01" ] }, { "cite": "91 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "431 N.E.2d 27", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 280", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5481198 ], "year": 1982, "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0280-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 738, "char_count": 14833, "ocr_confidence": 0.751, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.09951680580605278 }, "sha256": "42276debd73386a86619af0a1a813b3fbe7ae978814ebad63d4a32b0e5b920e8", "simhash": "1:ab2c30b5ba85ceff", "word_count": 2440 }, "last_updated": "2023-07-14T17:15:42.287354+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARRY CROWELL, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nDefendant, found guilty after a bench trial on four counts of exhibiting child pornography under section 11 \u2014 20.1(a)(2) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1983, ch. 38, par. 11 \u2014 20.1(a)(2)), was sentenced to concurrent 30-month terms of probation and fines of $2,500 on each count in addition to undergoing psychiatric counseling. He appeals contending that: (1) the State failed to prove one of the four charged instances of child pornography; and (2) the circuit court erred in excluding testimony asserted to establish defendant\u2019s disbelief or ignorance of the victimized children\u2019s ages.\nThe testimony and evidence produced at trial established the following facts. On April 22, 1984, a female (hereinafter Jackson), age 18, telephoned defendant, obtaining his consent to take 13-year-old twin sisters to his apartment for a \u201cphoto session.\u201d After their arrival, Jackson introduced the twins to defendant, who did not ask their ages or request any identification, but remarked upon how lovely they were. Neither Jackson nor the twins volunteered their ages or any identification. Defendant then told Jackson and the twins to undress, directed their posing in lewd exhibitions of their genitalia and then took between 10 and 20 photographs of them, in some of which he posed with them.\nAfter the \u201cphoto session,\u201d defendant and one of the twins went into his bedroom, prior to which he cautioned Jackson and the remaining twin \u201cto just be still\u201d and not to \u201cmess with anything.\u201d Jackson and the remaining twin dressed. They found about 50 photographs of nude young girls in a dresser drawer, which Jackson had seen before when defendant had shown them to her during a previous visit. While Jackson and the twin were looking at the photographs, defendant emerged from the bedroom, saw what they were doing, allowed them to look at the photographs, but said they could not take any.\nDefendant returned to the bedroom. Jackson and the remaining twin continued looking at the photographs. After about 20 minutes, defendant again emerged, now accompanied by the other twin. He paid the latter $30 and Jackson and the other twin $10 each, gave Jackson and each of the twins several of the photographs taken that day, and the three girls then left.\nDefendant telephoned Jackson several days later asking her to contact the twins and tell them that one of them had left her bag at his apartment. Jackson then told defendant that the twins\u2019 mother had discovered some of the photographs and had stated that whoever took the photos would be in trouble. Jackson also told defendant that the twins were only 13 years old and advised him not to see them anymore. Defendant said that he did not believe her but, as he later testified, also \u201cfelt like somebody hit me *** with a sledge hammer.\u201d\nDuring the rest of April, May and June, defendant exhibited photographs of the twins and other girls to co-employees at the fire station where he worked. He displayed the photographs both individually and later in an album consisting of more than 100 photographs. Some of the photos in the album were labeled with the apparent ages of the children depicted, 13 and 15 years. A fire department lieutenant testified that when defendant displayed the pictures to co-workers, he bragged about their ages of 12 and 13 and \u201cwas quite emphatic about the ages of the girls.\u201d Defendant also boasted of having had sexual intercourse with some of the children, including sisters.\nOn June 19, 1984, youth officers of the Chicago police department obtained a warrant to search for photographic child pornography in defendant\u2019s apartment. While they were searching the apartment, defendant told the officers that the photographs were not there. After being read his Miranda warning (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602), defendant said that the photos were in his locker at the fire station. Another warrant to search the locker was secured; however, he agreed to go there with the police and consented to the searching of his locker. Defendant acknowledged that he knew the twins were 13 and that he had learned of their ages a few days after the photo session, but asserted that when he photographed them he did not know their ages nor did he ask their ages or for any identification.\nDefendant was indicted on two counts of taking indecent liberties with a child, two counts of soliciting a child for child pornography and manufacturing child pornography, and four counts of exhibiting child pornography. (Ill. Rev. Stat. 1983. ch. 38, pars. 11 \u2014 4(a), 11\u2014 20.1(a)(1)(vii), 11 \u2014 20.1(a)(2), 11 \u2014 20.1(a)(4).) The six child-pornography counts were tried together; the two indecent-liberties counts were held over for separate trial. After the close of the State\u2019s case, the court, on defendant\u2019s motion, found defendant not guilty on the two manufacturing and soliciting counts. Subsequently, at the close of the case, defendant was found guilty of exhibiting child pornography on the four remaining counts. He appeals.\nI\nDefendant initially contends that the State failed to prove him guilty on one of the four counts of exhibiting child pornography; specifically, the charge of exhibiting child pornography on April 22, 1984, to either Jackson or the twins. He contends that their viewing of his photographs was both surreptitious and on their own initiative. Defendant ignores his own actions, however, once he discovered them examining his photographs. When he told them they could continue to look at his photographs, and gave them several copies, defendant \u201cexhibited\u201d his child pornography to them.\nIn pertinent part, section 11 \u2014 20.1(a)(2) of the Code at the time of the offenses provided (Ill. Rev. Stat. 1983, ch. 38, par. 11 \u2014 20.1(a)(2));\n\u201c(a) A person commits the offense of child pornography who:\n* * *\n(2) with the knowledge of the nature or content thereof, *** exhibits *** any film, videotape, photograph or other similar visual reproduction of any child under the age of 16 *** [\u2018depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the genitals of the child or other person.\u2019 (Ill. Rev. Stat. 1983, ch. 38, par. 11\u2014 20.1(a)(l)(vii).)].\u201d\nAlthough defendant\u2019s conduct in merely leaving his child pornography in a drawer in his living room and the subsequent discovery and examination of the material by others might not constitute an exhibition of child pornography, absent a showing that defendant had actually intended that the materials be found and viewed, no such showing was made here.\n\u201cExhibiting\u201d has been defined as showing, displaying or presenting to view. (People v. Spargo (1982), 103 Ill. App. 3d 280, 289, 431 N.E.2d 27, appeal denied (1982), 91 Ill. 2d 564.) In the case sub judiee, defendant discovered Jackson and one of the twins examining his photographs. He then told them that they could look at the photographs, but not to take any. He may not have been responsible for Jackson\u2019s actions in exhibiting the photographs to one of the twins; however, he became responsible once he approved and encouraged the continuation of that exhibition. At that point, regardless of Jackson\u2019s or the twin\u2019s prior actions, defendant\u2019s expressed approval and direction constituted a display or presentation of the child pornography. The circuit court, therefore, did not err in finding defendant guilty of exhibiting child pornography.\nII\nDefendant also contends that the circuit court erred in barring evidence tending to establish the existence of an affirmative defense.\nSection 11 \u2014 20.1(b)(1) of the Code at the time of the offenses provided (Ill. Rev. Stat. 1983, ch. 38, par. 11 \u2014 20.1(b)(1)):\n\u201cIt shall be an affirmative defense to a charge of child pornography that the defendant reasonably believed, under all of the circumstances, that the child was 16 years of age or older but only where, prior to the act or acts giving rise to a prosecution under this Section, he took some affirmative action or made a bonafide inquiry designed to ascertain whether the child was 16 years of age or older and his reliance upon the information so obtained was clearly reasonable.\u201d\nSection 3 \u2014 2 of the Code, establishing the burden of proof for affirmative defenses, at the time of the offenses provided in pertinent part (Ill. Rev. Stat. 1983, ch. 38, par. 3 \u2014 2(b)):\n\u201cIf the issue involved in an affirmative defense * * * is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense.\u201d\nIn order to raise the section 11 \u2014 20.1(b)(1) affirmative defense, defendant must present some evidence thereof (People v. Smith (1978), 71 Ill. 2d 95, 105, 374 N.E.2d 472; People v. Delk (1981), 96 Ill. App. 3d 891, 902, 421 N.E.2d 1341), comprised of three elements: (1) defendant must have reasonably believed under all the circumstances that the child was 16 or older; (2) prior to the proscribed act or acts, he must have taken some affirmative action or have made a bona fide inquiry as to the child\u2019s age; and (3) his reliance on the information received from his action or inquiry must have been clearly reasonable. (Ill. Rev. Stat. 1983, ch. 38, par. 11 \u2014 20.1(b)(1).) Defendant here testified that he was told the twins were 17 before he began photographing them. That testimony sufficiently raised the issue of his reasonable belief that the twins were 16 or older. Accepting or rejecting that defense, however, was within the province of the fact finder. (People v. Vriner (1978), 74 Ill. 2d 329, 342, 385 N.E.2d 671, cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858; People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733; People v. Kelly (1980), 89 Ill. App. 3d 400, 405-06, 411 N.E.2d 1012.) There was sufficient evidence adduced during the State\u2019s case in chief to disprove defendant\u2019s affirmative defense beyond a reasonable doubt. (Ill. Rev. Stat. 1983, ch. 38, par. 3 \u2014 2(b).) When evidence is merely conflicting, a reviewing court will not substitute its judgment for that of the circuit court. (People v. Akis (1976), 63 Ill. 2d 296, 298-99, 347 N.E.2d 733.) A criminal conviction will not be reversed on appeal unless the evidence is so improbable that it raises a reasonable doubt of defendant\u2019s guilt. (People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.) We cannot say that the circuit court so erred in the present case.\nIII\nDefendant next argues that the circuit court erred in excluding testimony of attempted blackmail, which he contends goes toward establishing his affirmative defense. The excluded testimony asserted that an unidentified man telephoned defendant several times during May and June of 1984, telling him that the twins were only 13 years old and that unless defendant \u201cpaid up,\u201d the blackmailer would go to the police with his information.\nDefendant\u2019s theory appears to be as follows: because blackmailers are inherently untrustworthy, any information provided by a blackmailer is necessarily untrustworthy and unworthy of belief; the information asserted by the blackmailer was per se unreasonable and, conversely, a belief opposite to the blackmailer\u2019s position must perforce be reasonable; therefore, when the blackmailer said that the twins were 13, it added to defendant\u2019s confusion and he could reasonably believe that they were 16 or older when subsequently he displayed the photographs to his co-workers.\nThe false and convoluted character of this position is patent. The untrustworthiness of the blackmailer, defendant correctly notes, must be universally recognized. Similarly, the truth of the information which he threatens to disclose may be viewed with suspicion. It does not logically at all follow, however, that a reasonable man could completely disregard the blackmailer\u2019s assertions and still be reasonable in his own belief that a child was 16 or older without investigation or inquiry; mere disbelief or ignorance of a child\u2019s age is irrelevant. The statute requires a reasonable belief that the child is 16 or older, not confusion or ignorance. Whereas defendant could reasonably question the blackmailer\u2019s assertions, he could not merely believe the opposite to be true; nor does the blackmailer\u2019s assertion in any way support his reasonableness. The circuit court did not err in excluding the testimony.\nIV\nDefendant urges error in the circuit court\u2019s exclusion of a fireman\u2019s testimony that defendant had told him he did not know the ages of the twins. This testimony was offered as a prior consistent statement rebutting the State\u2019s implication that defendant\u2019s ignorance of the twins\u2019 ages was a recent fabrication. Defendant\u2019s offer of proof indicated that a fireman would have testified that defendant told him he did not know the ages of the twins. This evidence does not support the affirmative defense of defendant\u2019s reasonable belief. Defendant\u2019s ignorance of the twins\u2019 ages is not at issue. The statutory affirmative defense must be addressed to defendant\u2019s reasonable belief that the twins were 16 or older. The proffered testimony did not tend to raise the defense but merely attempted to show defendant\u2019s subjective ignorance, which has no bearing on his reasonable belief. The circuit court did not err in barring this testimony. Weighing the evidence and resolving the issues thereby raised was the role of the trier of fact, in this instance the circuit court. There was no error in its findings.\nFor the reasons stated, the judgment of the circuit court must be affirmed.\nAffirmed.\nBILANDIC, P.J., and SCARIANO, J., concur.\nfection 11 \u2014 20.1 has been amended extending child-pornography protection to children under the age of 18 and adding possession of child pornography to the list of criminal conduct in paragraph (2). (Pub. Act 84 \u2014 1029.) Neither of these changes bear upon the case sub judice. Defendant here was convicted for conduct in which he engaged prior to the effective date of the amendment, November 18, 1985. Pub. Act 84-1029.\nThis section was subsequently amended changing the age from 16 or older to 18 or older. Pub. Act 84 \u2014 1029, effective November 18,1985. -\nThis section was amended effective January 1, 1984, placing a preponderance of the evidence burden upon a defendant raising an insanity defense but otherwise retaining the predecessor section intact. Pub. Act. 83 \u2014 288.", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "Thomas Peters, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Joan S. Cherry, Paula M. Carstensen, and William J. Hielscher, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARRY CROWELL, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 85\u2014749\nOpinion filed June 30, 1986.\nThomas Peters, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Joan S. Cherry, Paula M. Carstensen, and William J. Hielscher, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0341-01", "first_page_order": 363, "last_page_order": 370 }