{ "id": 4264370, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARIC SVEN, Defendant-Appellant", "name_abbreviation": "People v. Sven", "decision_date": "2006-05-03", "docket_number": "No. 2-05-0393", "first_page": "226", "last_page": "244", "citations": [ { "type": "official", "cite": "365 Ill. App. 3d 226" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "216 Ill. 2d 481", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3828618 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/ill-2d/216/0481-01" ] }, { "cite": "255 Ill. App. 3d 995", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2987056 ], "year": 1994, "pin_cites": [ { "page": "1004" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/255/0995-01" ] }, { "cite": "142 Ill. 2d 13", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236660 ], "year": 1991, "pin_cites": [ { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0013-01" ] }, { "cite": "333 Ill. App. 3d 808", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 486015 ], "year": 2002, "pin_cites": [ { "page": "819" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/0808-01" ] }, { "cite": "351 Ill. App. 3d 599", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083958 ], "year": 2004, "pin_cites": [ { "page": "605" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0599-01" ] }, { "cite": "338 Ill. App. 3d 245", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 25361 ], "year": 2003, "pin_cites": [ { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/338/0245-01" ] }, { "cite": "209 Ill. 2d 492", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461664 ], "year": 2003, "pin_cites": [ { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0492-01" ] }, { "cite": "355 Ill. App. 3d 619", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3600268 ], "year": 2005, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/355/0619-01" ] }, { "cite": "336 Ill. App. 3d 368", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599278 ], "year": 2003, "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/336/0368-01" ] }, { "cite": "7 Ill. App. 3d 191", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2671207 ], "year": 1972, "pin_cites": [ { "page": "197", "parenthetical": "\"The story is replete with accounts of intercourse, rape, cunnilingus, voyeurism, fellatio, lesbianism and other abnormal sexual acts\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/7/0191-01" ] }, { "cite": "100 Ill. App. 3d 741", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5496777 ], "year": 1981, "pin_cites": [ { "page": "745", "parenthetical": "\"In addition to drug abuse, the following are classified as mental disorders in various editions of DSM: sexual deviations, including homosexuality, fetishism, pedophilia, voyeurism\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/0741-01" ] }, { "cite": "139 F. Supp. 2d 637", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11102171 ], "year": 2001, "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/139/0637-01" ] }, { "cite": "812 F.2d 1239", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1694949 ], "year": 1987, "pin_cites": [ { "page": "1244", "parenthetical": "\"[Ljasciviousness 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 added)" } ], "opinion_index": 0, "case_paths": [ "/f2d/812/1239-01" ] }, { "cite": "46 Ill. 2d 576", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2898305 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "583" }, { "page": "583-84" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0576-01" ] }, { "cite": "235 Ill. App. 3d 765", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5783183 ], "year": 1992, "pin_cites": [ { "page": "773" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/235/0765-01" ] }, { "cite": "1987 Wis. L. Rev. 221", "category": "journals:journal", "reporter": "Wis. L. Rev.", "year": 1987, "pin_cites": [ { "page": "256", "parenthetical": "\"Moreover, while nonrepresentational art often involves the use of forms chosen by the artist to create a certain feeling in the viewer, these forms also reflect the artist's view of the world\"" } ], "opinion_index": 0 }, { "cite": "23 Colum.-VLA J.L. & Arts 201", "category": "journals:journal", "reporter": "Colum.-VLA J.L. & Arts", "year": 1999, "opinion_index": 0 }, { "cite": "36 Tex. Int'l L.J. 735", "category": "journals:journal", "reporter": "Tex. Int'l L.J.", "year": 2001, "pin_cites": [ { "page": "785" } ], "opinion_index": 0 }, { "cite": "48 Md. L. Rev. 247", "category": "journals:journal", "reporter": "Md. L. Rev.", "opinion_index": 0 }, { "cite": "34 Case W Res. L. Rev. 72", "category": "journals:journal", "reporter": "Case W. Res. L. Rev.", "year": 1983, "pin_cites": [ { "page": "87" } ], "opinion_index": 0 }, { "cite": "149 U. Pa. L. Rev. 921", "category": "journals:journal", "reporter": "U. Pa. L. Rev.", "year": 2001, "pin_cites": [ { "page": "955" } ], "opinion_index": 0 }, { "cite": "383 U.S. 502", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172274 ], "weight": 6, "year": 1966, "pin_cites": [ { "page": "508" }, { "page": "61-62" }, { "page": "963" }, { "page": "508" }, { "page": "62" }, { "page": "963" } ], "opinion_index": 0, "case_paths": [ "/us/383/0502-01" ] }, { "cite": "103 Ill. App. 3d 280", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5481198 ], "year": 1982, "pin_cites": [ { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0280-01" ] }, { "cite": "173 F.3d 28", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11617545 ], "year": 1999, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/f3d/173/0028-01" ] }, { "cite": "885 F.2d 117", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10525349 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "125" }, { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/f2d/885/0117-01" ] }, { "cite": "357 Ill. App. 3d 525", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4136734 ], "year": 2005, "pin_cites": [ { "page": "527", "parenthetical": "wage determination under Workers' Compensation Act" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0525-01" ] }, { "cite": "357 Ill. App. 3d 847", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4136119 ], "year": 2005, "pin_cites": [ { "page": "849", "parenthetical": "validity of search" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0847-01" ] }, { "cite": "359 Ill. App. 3d 275", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5594147 ], "year": 2005, "pin_cites": [ { "page": "278", "parenthetical": "DUI case" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/359/0275-01" ] }, { "cite": "214 Ill. 2d 234", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8450936 ], "year": 2005, "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/214/0234-01" ] }, { "cite": "195 Ill. 2d 336", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725359 ], "year": 2001, "pin_cites": [ { "page": "350", "parenthetical": "\"A court should construe a statute, if possible, so that no term is rendered superfluous or meaningless\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0336-01" ] }, { "cite": "305 Ill. App. 3d 665", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1208098 ], "weight": 4, "year": 1999, "pin_cites": [ { "page": "678" }, { "page": "677" }, { "page": "678" }, { "page": "678" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/305/0665-01" ] }, { "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": "185 Ill. 2d 585", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 122002 ], "weight": 24, "year": 1999, "pin_cites": [ { "page": "590" }, { "page": "592", "parenthetical": "collecting cases" }, { "page": "592" }, { "page": "592" }, { "page": "592" }, { "page": "592-93" }, { "page": "590" }, { "page": "594" }, { "page": "590" }, { "page": "598", "parenthetical": "Heiple, J., dissenting" }, { "page": "592" }, { "page": "592" }, { "page": "592" }, { "page": "592" }, { "page": "592" }, { "page": "592" }, { "page": "592" }, { "page": "594" }, { "page": "594" }, { "page": "594" }, { "page": "594" }, { "page": "592" }, { "page": "592" }, { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0585-01" ] }, { "cite": "458 U.S. 747", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 636693 ], "weight": 18, "year": 1982, "pin_cites": [ { "page": "764" }, { "page": "1127" }, { "page": "3358" }, { "page": "764" }, { "page": "1127" }, { "page": "3358" }, { "page": "764" }, { "page": "1127" }, { "page": "3358" }, { "page": "761" }, { "page": "1125" }, { "page": "3356-57" }, { "page": "764" }, { "page": "1127" }, { "page": "3358" }, { "page": "764" }, { "page": "1127" }, { "page": "3358" } ], "opinion_index": 0, "case_paths": [ "/us/458/0747-01" ] }, { "cite": "378 U.S. 184", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6166005 ], "weight": 3, "year": 1964, "pin_cites": [ { "page": "197", "parenthetical": "Stewart, J., concurring" }, { "page": "803-04", "parenthetical": "Stewart, J., concurring" }, { "page": "1683", "parenthetical": "Stewart, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/us/378/0184-01" ] }, { "cite": "162 Ill. App. 3d 455", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3507309 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "460" }, { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/162/0455-01" ] } ], "analysis": { "cardinality": 1700, "char_count": 46462, "ocr_confidence": 0.764, "pagerank": { "raw": 1.9625089588393748e-07, "percentile": 0.7381565488953217 }, "sha256": "12ad5e974f2fd042fd85085242320b94690162ac800da1542c68db0c23dfe2c3", "simhash": "1:b969504a7f519de5", "word_count": 7696 }, "last_updated": "2023-07-14T16:12:10.332814+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. ARIC SVEN, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE GROMETER\ndelivered the opinion of the court:\nDefendant, Aric Sven, was convicted of one count of child pornography (720 ILCS 5/11 \u2014 20.1 (West 2002)) following a bench trial in the circuit court of Lake County. Prior to trial, defendant pleaded guilty to four counts of unlawful videotaping (720 ILCS 5/26 \u2014 4 (West 2002)). He raises no issue as to these counts on appeal. He does, however, contest his conviction of child pornography, arguing that the tapes he produced do not fall within the statutory definition of child pornography. We disagree and therefore affirm. We also reject defendant\u2019s contention that his sentence of eight years\u2019 imprisonment is excessive.\nDefendant produced a number of videotapes, which were recovered from his home with the consent of his wife, by virtue of placing hidden video cameras in his bathroom. Two cameras were operating, one aimed at waist level and the other pointing down from a higher angle. The latter was hidden in the speaker of a television set that was mounted in the corner of the bathroom. The cameras did not zoom in or out, nor did they pan from side to side.\nAt issue here is a tape defendant recorded of his daughter\u2019s babysitter. At the time of the taping, defendant\u2019s daughter was still an infant. The baby-sitter was 14 or 15 years old. When defendant arranged for the baby-sitter to care for his daughter, he instructed her to give the baby a bath. Defendant instructed the baby-sitter to get into the tub with the baby, purportedly for safety reasons. The babysitter testified that she was unaware that she was being taped.\nThe tape shows the baby-sitter dressing and undressing in the bathroom. Throughout much of the video, she is nude. The baby-sitter is seen bathing with the baby, holding the baby, bouncing the baby in her arms, and, at one point, dancing with the baby to keep her from crying. As the trial court noted, there were two occasions where the baby-sitter touched her own genital area. However, as the trial court also correctly noted, this was the sort of innocent conduct in which people engage in the bathroom. The sole issue before us is whether these images constitute child pornography. We hold that they do.\nThe crime of child pornography is defined by section 11 \u2014 20.1 of the Criminal Code of 1961 (Code) (720 ILCS 5/11 \u2014 20.1 (West 2002)), in pertinent part, as follows:\n\u201c(a) A person commits the offense of child pornography who:\n(1) films, videotapes, photographs, or otherwise depicts or portrays by means of any similar visual medium or reproduction *** any child whom he knows or reasonably should know to be under the age of 18 ***:\n\u2756 \u2756 \u2756\n(vii) depicted 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 ***.\u201d\nDefendant contends that the videotape he made does not constitute child pornography because the images are not lewd, as required by the statute. He argues that the tape simply depicts ordinary activity in which people engage while in the bathroom.\nDefining \u201clewd\u201d has proven somewhat problematic for courts. In People v. Walcher, 162 Ill. App. 3d 455, 460 (1987), the court, quoting Black\u2019s Law Dictionary, defined \u201clewd\u201d as \u201c \u2018[ojbscene, lustful, indecent, lascivious, lecherous.\u2019 \u201d Walcher, 162 Ill. App. 3d at 460, quoting Black\u2019s Law Dictionary 817 (5th ed. 1981). These terms, while synonymous, provide little concrete guidance. Relying on definitions like these would leave courts with an I-know-it-when-I-see-it approach, reminiscent of the United States Supreme Court\u2019s attempts to define obscenity. See Jacobellis v. Ohio, 378 U.S. 184, 197, 12 L. Ed. 2d 793, 803-04, 84 S. Ct. 1676, 1683 (1964) (Stewart, J., concurring). Such an approach is constitutionally infirm. It is true that child pornography enjoys no protection under the first amendment. New York v. Ferber, 458 U.S. 747, 764, 73 L. Ed. 2d 1113, 1127, 102 S. Ct. 3348, 3358 (1982). A definitional problem, however, does exist. In order for a court to determine whether an image is not protected, the court must first determine whether the content of the image fits within the boundaries of child pornography. As the Supreme Court phrased it in Ferber, \u201cThe category of [depicted] \u2018sexual conduct\u2019 proscribed must also be suitably limited and described.\u201d Ferber, 458 U.S. at 764, 73 L. Ed. 2d at 1127, 102 S. Ct. at 3358.\nStrictly speaking, we are not confronted with a constitutional issue; rather, the issue before us is whether the images defendant produced are lewd within the meaning of Illinois\u2019s child pornography statue (720 ILCS 5/11 \u2014 20.1 (West 2002)). However, as the Illinois Supreme Court recognized, the child pornography statute finds its genesis in the standards set forth in Ferber:\n\u201cIn 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 \u2018depicted 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.\u2019 \u201d (Emphasis in original.) People v. Lamborn, 185 Ill. 2d 585, 590 (1999), quoting 720 ILCS 5/11\u2014 20.1(a)(l)(vii), (a)(6) (West 1996).\nThus, in determining whether an image is lewd for the purpose of the child pornography statute, a court also necessarily is determining whether the image is not protected by the first amendment. Constitutional proscriptions, such as Ferber\u2019s requirement that the conduct proscribed is sufficiently defined (Ferber, 458 U.S. at 764, 73 L. Ed. 2d at 1127, 102 S. Ct. at 3358), do apply. Accordingly, a workable definition of \u201clewd\u201d is required.\nIn United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), the United States District Court for the Southern District of California articulated a number of factors that have been widely adopted by courts assessing whether an image of a child is lewd or lascivious. See Lamborn, 185 Ill. 2d at 592 (collecting cases). The standard has been adopted and applied in this state. Lamborn, 185 Ill. 2d at 592; People v. Lewis, 305 Ill. App. 3d 665, 678 (1999). In making such determinations, the following factors are relevant:\n\u201c(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.\u201d Lamborn, 185 Ill. 2d at 592.\nNot all factors need be present for an image to be deemed lewd. Lam-born, 185 Ill. 2d at 592. Instead, the image must be judged in light of its overall content, while taking into account the age of the minor. Lamborn, 185 Ill. 2d at 592-93. Since the overall content is relevant, the Dost factors are not all inclusive. Finally, simple nudity, while a factor to consider under Dost, is not sufficient in itself to render an image lewd. The Illinois legislature proscribed a \u201clewd exhibition of the unclothed genitals.\u201d 720 ILCS 5/11 \u2014 20.1(a)(l)(vii) (West 2002). Equating nudity with lewdness would render the term \u201cunclothed\u201d meaningless, which contravenes a basic principle of statutory construction. People v. Maggette, 195 Ill. 2d 336, 350 (2001) (\u201cA court should construe a statute, if possible, so that no term is rendered superfluous or meaningless\u201d).\nIt must be emphasized that we are assessing the content of the images rather than the conduct of defendant. As our supreme court stated, \u201cWe must review the photographs themselves and determine whether those photographs are lewd under the child pornography statute.\u201d Lamborn, 185 Ill. 2d at 590. Later, in discussing the sixth prong of the Dost test, the court emphasized that \u201c[a] determination that a photograph constitutes child pornography focuses on the photograph itself.\u201d Lamborn, 185 Ill. 2d at 594. Our inquiry, then, is clearly limited to the content of the videotape itself. As defendant points out in his brief, the manner of its making and other facts external to the images, though unsavory, are irrelevant for the purpose of determining whether the images are lewd. In fact, defendant\u2019s conduct surrounding the making of the tape constitutes the separate crime of unlawful videotaping (720 ILCS 5/26 \u2014 4 (West 2004)).\nFinally, in determining whether an image is \u201clewd\u201d within the meaning of the child-pornography statute, the de novo standard of review applies. Lamborn, 185 Ill. 2d at 590. This standard has been criticized. See Lamborn, 185 Ill. 2d at 598 (Heiple, J., dissenting); Lewis, 305 Ill. App. 3d at 677. Given that the analysis focuses on the content of the images, de novo review makes sense. Quite simply, the trial court is in no better position to judge the content of a photographic image than we are where the image is available to us. Indeed, the principle that we conduct de novo review where facts are undisputed and only questions of law remain is a common one. See, e.g., City of Champaign v. Torres, 214 Ill. 2d 234, 241 (2005) (\u201cThe pertinent facts are uncontroverted. The task before us is to determine how the relevant statutory terms and constitutional principles should apply to those uncontroverted facts. Where, as here, the question on appeal is limited to application of the law to undisputed facts, the standard of review is de novo\u201d); People v. Kleutgen, 359 Ill. App. 3d 275, 278 (2005) (DUI case); People v. Dieppa, 357 Ill. App. 3d 847, 849 (2005) (validity of search); Farris v. Industrial Comm\u2019n, 357 Ill. App. 3d 525, 527 (2005) (wage determination under Workers\u2019 Compensation Act). Here, not only are the facts undisputed, but we are able to observe the alleged crime, that is, the images, firsthand. There is no reason to defer to the trial court\u2019s determination on this matter.\nWith these standards in mind, we now turn to the images at issue in this case. The first factor we must consider is \u201cwhether the focal point of the visual depiction is on the child\u2019s genitals.\u201d Lamborn, 185 Ill. 2d at 592. Defendant concedes that there are times where all that is seen is the baby-sitter\u2019s genitals. However, he points out that at other times, her entire body is visible and at still others, nothing is visible save the bathroom itself. Defendant\u2019s argument requires us to consider a preliminary question: are we to consider the tape as a whole or is it proper to focus upon particular images such that one portion of the tape may be lewd while another may not? We believe the latter approach is correct. Ferber provides sound guidance on this point. In that case, the Supreme Court made the following observation: \u201c[A] work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. \u2018It is irrelevant to the child [who has been abused] whether or not the material... has a literary, artistic, political or social value.\u2019 [Citation.]\u201d Ferber, 458 U.S. at 761, 73 L. Ed. 2d at 1125, 102 S. Ct. at 3356-57. In the present case, it is similarly irrelevant that portions of the tape show nothing but the bathroom itself. The presence of such passages on the tape does not serve to dilute other portions where the baby-sitter appears naked. We conclude, therefore, that it is proper to consider portions of the tape individually and determine whether they, in themselves, are lewd.\nHaving rejected defendant\u2019s premise that the videotape should be judged in its entirety, his concession that \u201cthere are times that all that is seen on the videotapes are the minor\u2019s vagina or buttocks\u201d becomes dispositive. Since there are times in which \u201cthe focal point of the visual depiction is on the child\u2019s genitals\u201d (Lamborn, 185 Ill. 2d at 592), this factor weighs in favor of finding that the images are lewd.\nThe next factor is \u201cwhether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity.\u201d Lamborn, 185 Ill. 2d at 592. It is, perhaps, debatable whether a bathroom is a place \u201cgenerally associated with sexual activity.\u201d However, Lewis teaches that a more substantial inquiry is necessary. In Lewis, this court observed the following:\n\u201cRegarding factor two, although the setting is a bedroom, this fact is not used to suggest sexual activity. A made-up bed appears in the background without any indication that the bed has any sexual meaning in the photo.\u201d Lewis, 305 Ill. App. 3d at 678.\nA bedroom is certainly more closely associated with sexual activity than a bathroom, yet even regarding a bedroom, the Lewis court considered the overall tone of the image. Applying the same analysis in this case, there is nothing sexually suggestive about the setting of the tape. While a bathroom may be associated with sexual activity in some circumstances, in this case, where the victim was bathing an infant, the \u201csetting\u201d is not sexually suggestive. Indeed, the State does not seriously contest this prong.\nThird, we must determine \u201cwhether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child.\u201d Lamborn, 185 Ill. 2d at 592. Defendant asserts that there is nothing unnatural about the activities that take place in the videotape. Considering the images in themselves, according to defendant, the activity depicted could simply be a young mother bathing with her infant. The State\u2019s response goes seriously awry at this point. The State argues that assuming that there was a familial relationship between the infant and the person bathing her, and further assuming that a mother would bathe with her infant, the images at issue \u201care not the spontaneous type of photograph taken by parents of their young child bathing.\u201d Instead, the State continues, \u201cthey are the premeditated, secretive videotapes of a fully-developed, completely naked, 14 or 15 year old neighbor who had been duped by defendant into bathing with his daughter.\u201d Indeed, the State concludes that this is so because the images \u201cinvolve[ ] a naked minor not related to the baby.\u201d The State\u2019s argument is ill-taken in that it relies on how the tape was made (which, as noted previously, constitutes a different crime) and other information extraneous to the images themselves. That the person holding the infant had been duped cannot be known from the images themselves, nor can the fact that she was a neighbor. Moreover, as defendant points out, \u201c[n]udity is appropriate for bathing.\u201d This factor does not support a finding that the images defendant produced are pornographic, because the victim is not depicted in an unnatural pose. However, to say that the activity in which the victim engaged is natural is not the same thing as saying that the images themselves are natural. That consideration, however, is best addressed in the context of the sixth prong.\nThe fourth factor we must consider is \u201cwhether the child is fully or partially clothed, or nude.\u201d Lamborn, 185 Ill. 2d at 592. Defendant properly does not contest this factor. Accordingly, this factor favors a finding that the images defendant produced are pornographic.\nThe fifth factor is \u201cwhether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity.\u201d Lamborn, 185 Ill. 2d at 592. The parties and the trial court focused upon one occurrence on the videotape where the baby-sitter appeared to touch the area of her vagina and then placed her finger in her mouth. On another occasion, the baby-sitter appeared to touch her genitals. The trial court found that though the conduct in question was innocent, it still could suggest sexual coyness and a willingness to engage in sexual activity. Our viewing of this portion of the tape reveals nothing of the sort. Indeed, this conduct was, as defendant suggests, something that people sometimes do in the bathroom. Therefore, this factor weighs against a finding that the videotape contains pornographic images.\nWe come, at last, to the sixth factor, \u201cwhether the visual depiction is intended or designed to elicit a sexual response in the viewer.\u201d Lam- born, 185 Ill. 2d at 592. This factor has proven quite difficult to apply. Two problems arise: first, intended or designed by whom, and, second, who is the viewer. Both appear to conflict with the directive that \u201c[a] determination that a photograph constitutes child pornography focuses on the photograph itself.\u201d Lamborn, 185 Ill. 2d at 594. The first seems to require an inquiry into a defendant\u2019s state of mind, and the second appears to focus upon the reactions of viewers of the image. These things, however, are external to the image itself.\nIndeed, some courts struggling to apply the sixth factor set forth in Dost have virtually abandoned it. Both the First and Third Circuits of the Federal Court of Appeals have come to the following conclusion: \u201cWe believe that the sixth Dost factor, rather than being a separate substantive inquiry about the photographs, is useful as another way of inquiring into whether any of the other five Dost factors are met.\u201d United States v. Villard, 885 F.2d 117, 125 (3d Cir. 1989); see United States v. Amirault, 173 F.3d 28, 35 (1st Cir. 1999). Indeed, this court conducted such an analysis in Lewis, 305 Ill. App. 3d at 678, essentially determining that the sixth factor did not indicate that the image at issue was pornographic, because the second and fifth factors did not. While treating the sixth factor in this manner poses no conceptual difficulties regarding deviating from the four corners of the image, it really adds nothing to the analysis and deprives the sixth factor of any true content. Contrary to the First and Third Circuits, we do not see how revisiting the first five factors in the guise of applying the sixth is a particularly useful exercise.\nAs for the first problem \u2014 intended or designed by whom \u2014 the resolution is simple enough. Given that the image must be judged on its own terms, a defendant\u2019s subjective intentions are irrelevant. Thus, the inquiry is necessarily limited to what the image itself says about itself. Put differently, only the characteristics of the image are relevant to determining whether it was created to evoke a sexual response in the viewer. Moreover, just as a defendant\u2019s subjective intentions cannot condemn an otherwise innocent image, neither can they save an otherwise pornographic one. The image must be evaluated solely on its own terms. Lamborn, 185 Ill. 2d at 594.\nTurning to the second problem \u2014 the identity of the viewer \u2014 our supreme court, while emphasizing that whether a defendant is aroused by an image is not relevant, held that \u201cviewer\u201d refers to the objective viewer. Lamborn, 185 Ill. 2d at 594. If one were to take that holding to require an analysis of how the average, ordinary person would react to the image, the problem of departing from the four corners of the image remains. The average person\u2019s reaction, like the subjective reaction of an individual pedophile, is something external to the image itself.\nFurthermore, determining whether an image is lewd by reference to whether a sexual response would be elicited in an ordinary person (or perhaps an ordinary pedophile) creates a further problem. In Ferber, the Supreme Court held that \u201c[t]he category of [depicted] \u2018sexual conduct\u2019 proscribed must also be suitably limited and described.\u201d Ferber, 458 U.S. at 764, 73 L. Ed. 2d at 1127, 102 S. Ct. at 3358. Trying to determine what response an ordinary person would have to an image invites unguided speculation and undermines the balance of the analysis set forth in Dost. After carefully applying the first five factors, a court would then consider the reaction of an ordinary person without any concrete guidance whatsoever. Proceeding in this manner would run afoul of Ferber.\nMoreover, why the reaction of an ordinary person is relevant to determining whether an image is child pornography is unclear. Cf. People v. Spargo, 103 Ill. App. 3d 280, 287 (1982) (\u201cFor example, if the court determines that the material is designed for the specially susceptible audience of pedophiles, must the court then determine that the material is \u2018patently offensive\u2019 and \u2018lacks serious literary, artistic, educational, political or scientific purpose or value\u2019 to the average pedophile, or must the court make those determinations with reference to the \u2018ordinary adult\u2019?\u201d). It would seem that child pornography would not elicit a sexual response in an ordinary person, as an ordinary person is not a pedophile. In the context of obscenity law, the United States Supreme Court was confronted with a similar argument:\n\u201cIndeed, appellant\u2019s sole contention regarding the nature of the material is that some of the books involved in this prosecution, those depicting various deviant sexual practices, such as flagellation, fetishism, and lesbianism, do not satisfy the prurient-appeal requirement because they do not appeal to a prurient interest of the \u2018average person\u2019 in sex, that \u2018instead of stimulating the erotic, they disgust and sicken.\u2019 \u201d Mishkin v. New York, 383 U.S. 502, 508, 16 L. Ed. 2d 56, 61-62, 86 S. Ct. 958, 963 (1966).\nThe Supreme Court rejected this argument, explaining:\n\u201cWhere the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group.\u201d Mishkin, 383 U.S. at 508, 16 L. Ed. 2d at 62, 86 S. Ct. at 963.\nIt cannot be that the sixth factor of the Dost test requires a finding that an image would elicit a sexual response in an ordinary person in order for that factor to support a finding that an image constitutes child pornography. As the Supreme Court recognized in the context of obscenity, such a standard makes no sense. Ordinary people are not sexually stimulated by child pornography.\nTaking \u201cviewer\u201d to refer to the ordinary pedophile is not satisfactory for several reasons. One commentator recognized the following problem: \u201cBut how are we to get inside the head of the pedophile and to see the world from his eyes?\u201d A. Adler, Inverting the First Amendment, 149 U. Pa. L. Rev. 921, 955 (2001). Moreover, if the criterion is whether a pedophile would find an image sexually stimulating, virtually any image of a child could be classified as child pornography. See 149 U. Pa. L. Rev. at 956 (\u201cIn fact, it is arguable that when viewed from the perspective of pedophiles, all children could be erotic\u201d). Thus, considering the objective viewer to be an ordinary pedophile creates other problems. In addition to departing from the four corners of the image and inviting unguided speculation, such a standard puts the trier of fact in the position of having to discern the mental state of a deviant group on a matter alien to the average person\u2019s understanding. It also puts numerous obviously nonpornographic images at risk of being classified as pornography.\nIndeed, the reaction of the \u201cordinary person\u201d or the \u201cordinary pedophile\u201d cannot be what the supreme court intended when it held that the \u201cviewer\u201d of the sixth prong is the \u201cobjective viewer.\u201d (Emphasis added and in original.) Lamborn, 185 Ill. 2d at 594. Either formulation conflicts with the court\u2019s holding that the image be evaluated on its own terms. Thus, the court must have meant something else.\nThe only plausible meaning to ascribe to the term that limits the analysis to the four corners of the image is point of view. That is, the question is whether the characteristics of the image invite the viewer to see the image from a particular perspective. \u201cPoint of view\u201d is defined as, inter alia, \u201ca particular position (as in space, time, development) from which something is considered or evaluated: STANDPOINT, VIEWPOINT .\u201d (Emphasis added and in original.) Webster\u2019s Third New International Dictionary 1750 (2002). As the definition includes the \u201cdevelopment\u201d of an individual, as exemplified by the reference to the \u201cpoint of view of a child,\u201d it is clear that \u201cpoint of view\u201d refers to both the physical-spatial orientation of the viewer toward an object and the mental condition of the viewer insofar as it affects the way the viewer sees the object. An image may or may not invite a viewer to see an object from a particular point of view.\nIn the world of art, the concept is well known. One art dictionary defines the term, in relevant part, as follows: \u201cA position or angle from which something is observed or considered, and the direction of the viewer\u2019s gaze; a standpoint which is either a physical location or one in the mind. *** A manner of viewing things; an attitude. The attitude or outlook of a narrator or character in a piece of literature, a movie, or another art form.\u201d http://www.artlex.com/pm.html. The same source defines \u201cattitude,\u201d as used in the above definition, as \u201c[a] mental position (feeling or emotion) concerning a fact or a state; a state of mind; a point of view or an outlook.\u201d http://www.artlex.com/ aru.html. Often, the point of view from which the viewer sees the image is a result of the characteristics of the image itself. See K. O\u2019Neill, The Ambush Interview: A False Light Invasion of Privacy?, 34 Case W Res. L. Rev. 72, 87 (1983) (\u201cThe interviewee\u2019s credibility may be further undermined by the effect of lighting, camera angle, camera movement, and sound recording. The \u2018stalking\u2019 movement of the hand-held camera as it aggressively approaches the subject may contribute to viewer perception of his guilt, or the cameraman may photograph the subject from a low angle to create a \u2018sinister\u2019 look\u201d). Similarly, a photographic image might place \u201cits viewer in an epistemically privileged position, one step removed from the eyewitness.\u201d L. Harmon, Fishing Deep Waters: Tributes & Commentaries: The Canyon of Doubt: John William Corrington\u2019s the Risi\u2019s Wife, 26 Legal Stud. F. 859, 863 (2002). Moreover, images themselves establish a point of view regardless of their creator\u2019s intent. Cf. P. Quint, Free Speech and Private Law in German Constitutional Theory, 48 Md. L. Rev. 247, 300 n.173 (1989) (\u201cMoreover, the documentary form is particularly dangerous because the film\u2019s point of view is often accepted as a representation of reality\u201d). Quite simply, artistic images affect their viewers. See J. Nivala, The Landscape Art of Daniel Urban Kiley, 29 Wm. & Mary Envtl. L. & Pol\u2019y Rev. 267, 322 (2005), quoting T. Joffrain, Deriving a (Moral) Right for Creators, 36 Tex. Int\u2019l L.J. 735, 785 (2001), and V Zlatarski, \u201cMoral\u201d Rights and Other Moral Interests: Public Art Law in France, Russia, and the United States, 23 Colum.-VLA J.L. & Arts 201 (1999) (\u201cIf we accept \u2018the notion that \u201cart is expression,\u201d something to \u201cexpress feeling and transmit understanding\u201d no matter the medium,\u2019 then landscape design is art \u2014 visual art. It is also public art, which \u2018does not merely present a collection of formal aesthetic attributes; it alters its environment, affects its viewer, and forges moral meaning\u2019 \u201d); S. Nahmod, Artistic Expression and Aesthetic Theory: The Beautiful, The Sublime, and The First Amendment, 1987 Wis. L. Rev. 221, 256 (1987) (\u201cMoreover, while nonrepresentational art often involves the use of forms chosen by the artist to create a certain feeling in the viewer, these forms also reflect the artist\u2019s view of the world\u201d). Visual art consists of images, and, while it would be a stretch to call what defendant created art in the same sense that it would be to call candid family photographs art (at least in the traditional sense), any image might place the viewer into a particular point of view.\nReturning to the world of the law, a more concrete example might prove more helpful. In obscenity prosecutions, the question of whether a work has some redeeming value is a part of the analysis. See People v. Page Books, Inc., 235 Ill. App. 3d 765, 773 (1992). In City of Chicago v. Geraci, 46 Ill. 2d 576, 583 (1970), the question arose as to whether a 10-page introduction by a doctor that 1\u2018purport [ed] to place the contents of an [otherwise obscene] book into some psychological perspective\u201d vested the book with some redeeming value such that it fell within the protection of the first amendment. In essence, the defendant was arguing that the introduction altered the nature of the book because it altered the point of view from which the viewer would perceive the material. Although the supreme court ultimately rejected the defendant\u2019s argument, finding the introduction a \u201chollow subterfuge,\u201d it took the argument seriously. Geraci, 46 Ill. 2d at 583-84. If, in fact, the introduction had not been simply a ruse to escape an obscenity prosecution, the material could not have been deemed obscene. This is solely because the introduction would have created an atmosphere where the reader would have been encouraged to perceive the balance of the book from an appropriate point of view. Hence, the point of view in which a work places a viewer is a characteristic of the work itself and can change the very nature of the work.\nIf the sixth factor of Dost refers to the point of view, if any, in which the image places the viewer, the problems set forth above are largely avoided. Because the perspective of the viewer is determined from the characteristics of the image, there is no reference to matter outside of the four corners of the image. Similarly, the inquiry does not focus upon the hypothetical reaction of the average viewer or the average pedophile, which also lies outside of the image. Indeed, reaction per se becomes irrelevant. The inquiry does not focus upon the reaction of a viewer, objective or otherwise, having been invited to view the work from a certain point of view. It simply asks, in which point of view does the image place the viewer? This approach does not require the trier of fact to ascertain the state of mind of a pedophile. Moreover, it avoids the problem of transmuting otherwise ordinary images into child pornography simply because they might arouse a pedophile. Thus, we believe that the proper inquiry focuses upon whether the image invites the viewer to perceive the image from some sexualized or deviant point of view. Cf. United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987) (\u201c[Ljasciviousness 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\u201d (emphasis added)). As noted above, not all of the Dost factors need be present in order to find that an image is child pornography. Lamborn, 185 Ill. 2d at 592. It may turn out that in the majority of cases, this factor will have little application. However, our approach has the virtue of restoring to the sixth factor some content independent of the first five, and it confines the analysis to the four corners of the image. In certain circumstances it may prove a useful tool for evaluating a particular image. This is one such case.\nIn the present case, we must first remember that we are assessing images. We are not simply deciding whether a naked teenaged girl bathing a naked infant is lewd. Indeed, the conduct depicted is properly assessed under the third prong of Dost. Lamborn, 185 Ill. 2d at 592. Instead, we must determine whether the videotape that defendant produced is lewd. Our final inquiry to this end is whether the images invite the viewer to see the activity on the tape from some sexualized or deviant point of view. We conclude that they do.\nEssentially, the tape places the viewer in the role of voyeur. There is no narrative or plot. The images are not a scene connected to anything else. In watching the tape, the viewer stands in relation to the victim as would a peeping tom. This point of view is reinforced by the fact that the victim does not react to the camera whatsoever. Whether an image is candid or posed has been deemed relevant in determining whether an image is lewd. See Villard, 885 F.2d at 125; Doe v. Chamberlin, 139 F. Supp. 2d 637, 648 (M.D. Pa. 2001). Generally, as suggested by the third factor, certain poses would support a finding that an image is lewd. However, where, as here, the viewer is placed in the point of view of a voyeur, that the images are candid contributes to their lewdness. Because the victim does not react, the image creates a sense of covert observation that would not otherwise exist.\nVoyeurism is sexually motivated conduct, and it is recognized as deviant behavior. See In re Marquardt, 100 Ill. App. 3d 741, 745 (1981) (\u201cIn addition to drug abuse, the following are classified as mental disorders in various editions of DSM: sexual deviations, including homosexuality, fetishism, pedophilia, voyeurism\u201d); People v. Penney, 7 Ill. App. 3d 191, 197 (1972) (\u201cThe story is replete with accounts of intercourse, rape, cunnilingus, voyeurism, fellatio, lesbianism and other abnormal sexual acts\u201d). Thus, by placing the viewer in the role of voyeur, the images become sexualized. Moreover, they are sexualized in a way consistent with deviant behavior.\nHere, that the point of view in which the viewer is placed leads to the conclusion that the tape is lewd can be seen by comparing it with a certain photograph at issue in Lamborn. In that case, the supreme court determined that the photograph was not lewd. The court explained, \u201cThis 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.\u201d Lamborn, 185 Ill. 2d at 593. In other words, the photograph was of the sort that friends might take of friends. The videotape at issue here is of a totally different nature. These are not the type of image described in Lamborn, nor do they bear any similarities with the sort of photograph a parent might take of a young child bathing. It is different because it places the viewer in the position of a voyeur rather than that of a parent observing a young child bathing or that of a friend, as the picture suggested in Lamborn. Accordingly, this prong of Dost indicates that the images defendant created are lewd.\nIn sum, the first, fourth, and sixth factors all indicate that the videotape defendant produced is lewd and therefore child pornography within the meaning of section 11 \u2014 20.1 (720 ILCS 5/11 \u2014 20.1 (West 2002)). The victim was fully nude, the tape contained images that focused upon her genitalia, and the characteristics of the tape place the viewer in the perspective of a voyeur. Three factors, the second, third, and fifth, militate for a different conclusion. The setting was not sexually suggestive, the victim was not depicted in an unnatural pose or attire, and the victim did not exhibit sexual coyness or a willingness to engage in sexual activity. However, given the voyeuristic nature of the videotape, the fifth factor is entitled to little weight. One simply would not expect the victim to exhibit sexual coyness or a willingness to engage in sexual activity while engaged in normal activity. The fact that she exhibited neither, under such circumstances, does not undermine the lewd nature of the videotape. Likewise, that the images were not posed does not undercut the voyeuristic nature of the images. Considering the totality of the videotape in light of the six considerations articulated in Dost, we conclude that the tape is lewd. Therefore, we affirm defendant\u2019s conviction.\nIn a related argument, defendant contends that the legislature did not intend section 11 \u2014 20.1 (720 ILCS 5/11 \u2014 20.1 (West 2002)) to apply to what he terms \u201cpeeping tom\u201d cases such as this one. As evidence of this intent, he compares section 11 \u2014 20.1 to new amendments to section 26 \u2014 4 of the Code (720 ILCS 5/26 \u2014 4 (West 2004)), which make unlawful videotaping of a minor a felony in certain circumstances, and section 11 \u2014 20.2 of the Code, which imposes an obligation upon film processors to report to a peace officer photographic images of minors engaged in sexual conduct (720 ILCS 5/11\u2014 20.2 (West 2004)). Defendant claims that these statutes should be read in pari materia with section 11 \u2014 20.1.\nThe principle that statutes that relate to the same subject should be read in pari materia is a principle of statutory construction. See Mowen v. Holland, 336 Ill. App. 3d 368, 374 (2003). Therefore, the rule applies only when it is necessary to resolve a statutory ambiguity. People v. Aleman, 355 Ill. App. 3d 619, 626 (2005). Defendant has not attempted to establish that section 11 \u2014 20.1 is ambiguous in any way. Thus, absent an ambiguity, it is unnecessary for us to construe the statute.\n\u20225 Before concluding this portion of this opinion, we note that defendant has set forth, as a separate argument, that the trial court erred by allowing evidence regarding the circumstances under which the images were produced. As is clear from the above discussion, we agree with this contention. It does not, however, provide a basis for reversal. Because we are conducting de novo review, our conclusion that the images at issue here constitute child pornography was arrived at independently of and without deference to the trial court\u2019s decision. We did not consider evidence external to the images in reaching this conclusion. It is well settled that we may affirm on any basis apparent in the record. People v. Braggs, 209 Ill. 2d 492, 519 (2003).\nFinally, defendant also contends that his sentence is excessive. The propriety of a sentence is a matter lying within the discretion of the trial court, and we will not interfere with that discretion unless it is abused. People v. Roberts, 338 Ill. App. 3d 245, 251 (2003). An abuse of discretion occurs where no reasonable person could agree with the position taken by the trial court. People v. Allen, 351 Ill. App. 3d 599, 605 (2004). Indeed, a trial court, as it has the opportunity to observe a defendant and hear evidence firsthand, is in the best position to take into account such things as the defendant\u2019s character, demeanor, credibility, social environment, and habits; therefore, the trial court has wide latitude in imposing a sentence so long as it does not ignore relevant mitigating evidence or consider improper factors in aggravation. People v. Bilski, 333 Ill. App. 3d 808, 819 (2002). A court of review, then, may not simply reweigh the evidence and substitute its judgment for that of the trial court. People v. Streit, 142 Ill. 2d 13, 19 (1991). Where mitigating evidence has been presented, the trial court is presumed to have considered it. People v. Dominguez, 255 Ill. App. 3d 995, 1004 (1994).\nDefendant asserts that he is not simply asking this court to reweigh the evidence that the trial court considered; however, a reading of his argument reveals that that is exactly what defendant is doing. Defendant contends that his sentence is excessive because: (1) he has no criminal background; (2) he was sexually abused as a child; (3) he was a poor student who went on to become a successful businessman; (4) a psychologist and a doctor who specializes in treating sex offenders opined that he was a low risk to reoffend and a good candidate for a community-based plan; (5) the sentence will create an undue hardship for his five children, who depend on his income and support; (6) he has a good general character and attitude; and (7) he has been sober for over 16 years and is an active participant in Alcoholics Anonymous, where he has helped other people. After setting forth these points, defendant simply argues that \u201cit defies logic that this defendant has never touched anyone improperly (i.e., did not commit an Aggravated Criminal Sexual Abuse, which is probational) and failed to get the minimum four-year sentence.\u201d Defendant is, in essence, asking us to reconsider the evidence presented to the trial court (and, perhaps, to conduct a cross-comparison analysis with the crime of aggravated criminal sexual abuse (720 ILCS 5/12 \u2014 16 (West 2004)); however, such an argument is no longer viable in light of People v. Sharpe, 216 Ill. 2d 481 (2005)).\nIn addition to asking us to do something we cannot, that is, reweigh the evidence, defendant\u2019s argument ignores several aggravating factors upon which the trial court relied. Notably, defendant fails to mention the trial court\u2019s finding that defendant\u2019s conduct threatened serious emotional harm to others and that a need existed to deter defendant and other people from engaging in the conduct in which defendant engaged. Thus, contrary to the implication of defendant\u2019s argument, not all considerations militated for a minimum sentence.\nIndeed, the trial court expressly relied upon numerous considerations. It began its ruling by stating that it had considered all of the evidence as well as the factual basis for the pleas defendant entered on the unlawful videotaping counts. It stated that it considered the presentence investigation and the reports provided by the psychologist and the doctor who specializes in treating sex offenders. The trial court acknowledged the financial impact of incarceration, both on the State and on defendant\u2019s children. The court next noted defendant\u2019s childhood, including the abuse defendant suffered and educational difficulties he experienced. It then credited defendant with relieving people of the burden of testifying by pleading guilty on the unlawful videotaping counts, and it noted that this indicated an acceptance of responsibility. The court observed that defendant cared for and supported his children. Additionally, the court stated that it considered defendant\u2019s \u201cindustry in putting together a business.\u201d Finally, the court noted defendant\u2019s lack of a criminal history. In aggravation, the court first found that defendant\u2019s behavior threatened serious emotional harm to others. It also expressly cited the need for deterrence, regarding both defendant and others.\nThe court added that it was considering the arguments of the attorneys as to sentencing alternatives; defendant\u2019s statement, in which he indicated remorse; and the victim impact statements. The court noted that it had heard from people who testified that defendant is a person of integrity; that he puts his children first; that he is caring and considerate; and that he was helpful as a brother, insightful as a mentor, and helpful to others. The court indicated that it had read statements submitted upon defendant\u2019s behalf as well as information received from experts on addiction.\nThe court then went on to note the effect defendant\u2019s actions had upon his victims. It observed that the victims felt betrayed, ashamed, violated, embarrassed, and angry. Also, many testified that they had started to feel guilty, though they had done nothing wrong. The court further noted that several indicated that they felt fear and that for the rest of their lives they may always fear whether someone is filming them or watching them.\nThe court then again noted defendant\u2019s expression of remorse, but stated that \u201cyou certainly have a long way to go.\u201d It also noted defendant\u2019s participation in Alcoholics Anonymous. Finally, before pronouncing defendant\u2019s sentence, it reiterated that it was considering \u201call the factors that [it] was required to consider.\u201d The court then sentenced defendant to eight years\u2019 imprisonment.\nWe cannot say that no reasonable person could agree with the trial court that an eight-year sentence was appropriate. Defendant correctly points out that substantial mitigating circumstances exist. There were, however, substantial aggravating factors as well. Thus, a reasonable person could conclude that a sentence in excess of the minimum was warranted. Moreover, defendant could have been sentenced to up to 15 years\u2019 imprisonment, so the sentence defendant received was closer to the minimum for a Class 1 felony. See 730 ILCS 5/5 \u2014 8\u20141 (West 2002). Defendant was thus shown some leniency. Defendant\u2019s assertion, that he is not asking us to reweigh the evidence but simply to conclude that the trial court abused its discretion in light of all the circumstances of the offense and his personal history, is ill-founded. Making such a determination would appear to us to involve reweighing the evidence, and defendant does not explain how it would not. We therefore must reject defendant\u2019s argument.\nIn light of the foregoing, we hold that defendant was properly convicted and sentenced in the trial court below. The videotape defendant produced constitutes child pornography, and the sentence defendant received was not excessive. Accordingly, the judgment of the circuit court of Lake County is affirmed.\nAffirmed.\nHUTCHINSON and KAPALA, JJ., concur.\nWe are cognizant that, under Ferber, 458 U.S. at 764, 73 L. Ed. 2d at 1127, 102 S. Ct. at 3358, \u201cthe material at issue need not be considered as a whole.\u201d We do not here mean to suggest that an otherwise pornographic image could be saved by the balance of a work. However, here, we are not concerned with balancing the value of a work as a whole with a particular scene, as in an obscenity case. We Eire asking whether the overall nature of the work colors the images themselves.\nIn addition to the baby-sitter discussed above, defendant\u2019s pleas of guilty to unlawful videotaping involved other victims.", "type": "majority", "author": "PRESIDING JUSTICE GROMETER" } ], "attorneys": [ "Thomas C. Brandstrader, of Chicago, for appellant.", "Michael J. Waller, State\u2019s Attorney, of Waukegan (Martin P. Moltz and Joan M. Kripke, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARIC SVEN, Defendant-Appellant.\nSecond District\nNo. 2\u201405\u20140393\nOpinion filed May 3, 2006.\nRehearing denied June 1, 2006.\nThomas C. Brandstrader, of Chicago, for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan (Martin P. Moltz and Joan M. Kripke, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0226-01", "first_page_order": 244, "last_page_order": 262 }