Appeal from the Circuit Court of Cook County; the Hon. Adam N.
Stillo, Judge, presiding.
PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant, William Lerch, and his wife, Mariann, were charged with creating pornography by photographing their six-year-old child in the nude with her pubic area exposed (Ill. Rev. Stat. 1981, ch. 38, par. 11-20a(b)(2)) and with knowingly permitting their child to be so photographed (Ill. Rev. Stat. 1981, ch. 38, par. 11-20a(b)(3)). In a bench trial, Mariann Lerch was found not guilty on both charges. Defendant was found guilty only on the charge of creating child pornography. He was sentenced to a one-year conditional discharge. Defendant appeals his conviction, contending that: (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt; (2) the verdicts are inconsistent; (3) section 11-20a is overbroad in violation of the first and fourteenth amendments to the United States Constitution; and (4) he was denied effective assistance of counsel. We affirm.
The only evidence introduced at trial was a stipulation of facts and the State's exhibit containing the alleged child pornography. The factual stipulation stated that the defendant photographed his wife and daughter in the nude with the child's genitals exposed. Defendant and his wife are the parents of the child in the photographs. The child, being under the age of 16, was knowingly permitted to appear in the photographs by her parents. The photographs were taken by the defendant in his living room and then taken to Osco drugstore for developing. On December 21, 1982, Riverside police received a call from Peter Bartholomew of Osco drugstore in North Riverside. He stated that certain film had been submitted for developing under the customer name of William Lerch on December 15. After the film was developed, it was discovered that several photos were of a young female child six years of age identified as defendant's daughter. On December 22, Bartholomew brought the film to the North Riverside police department. A total of 26 photos with negatives were turned over to the police.
For purposes of identification in this discussion, the photographs are numbered from 1 through 26. Because the negatives were not placed in evidence, our numbering of these photographs is not intended to suggest the order in which they were taken. Photographs Nos. 1 through 5 are of the defendant's wife sitting next to the fireplace wearing a low-cut black negligee with her legs exposed up to the hips. In some of the photographs, she is gazing provocatively at the camera. She is holding a cigarette and has a glass of wine and a cup and saucer on the floor next to her.
In photographs Nos. 6 through 13, the wife and child are posed nude on the living room floor. The sixth photograph depicts the wife in a prone position on top of the child with her face buried in the child's breast. The child's legs are spread apart enveloping her mother's body. Photograph No. 7 is much the same pose except that the wife's head is raised and she is looking down at the child. In the eighth photograph, the child is lying on her stomach and the wife is kneeling behind her. The wife appears to be looking at the child's pubic area with one hand touching the child's thigh. Photograph No. 9 shows the child standing with her buttocks to the camera. Her hands are in front of her and appear to be near the pubic area. The wife, partly in view, is kneeling in front of the child but here is no physical contact between them. The 10th picture depicts the child facing the camera kneeling in front of the wife. There is no physical contact and the wife is looking downward. In the 11th picture, the child is bent over with her buttocks to the camera and her legs spread apart, providing a view of her genitals. The wife is in the background looking at the child. The 12th photograph shows the wife in a crouched position at the bottom of a stairway with only the top of the child's head visible. The last photograph of the wife and child together depicts both of them sitting on the living room floor. The wife is looking at the camera and the child is looking at the wife.
The last 13 photographs are of the child alone, in the nude, except for one blurred photograph in which no one is visible. In photographs Nos. 14 through 18, the child is pictured on the living room floor. She is posed in positions which clearly reveal and focus attention on her genital area. Photograph 14 depicts the child lying on her side with her head propped up by her right hand. The child's left leg is elevated to her shoulder and her legs are spread apart to their fullest extent, emphasizing the pubic area. The 15th picture shows the child sitting on the floor propped up by her elbows with her left leg bent and raised to the height of her head. The child's genitals are fully exposed, and she is gazing down at her pubic area.
The next photograph, No. 16, features the child with her legs spread wide in a v-shape. She is lying on the floor with her buttocks lifted off of the floor, affording a clear view of the genitals. In the 17th photograph, she is sitting on the floor leaning back on her elbows with her legs spread wide. Photograph 18 shows a similar pose, but one leg is raised in the air and she is looking down at her genitals. Again, the genital area is in full view. The 19th picture shows the child bent over with her head on the floor. The photograph affords a posterior view of her genitals. In picture No. 20, the child is lying back on her shoulders with her hands on her hips raising her buttocks and legs in the air. Her legs are spread apart, but the view of the child's genitals is unclear because the photo is blurred.
The remaining six photographs show the little girl either sitting naked in a chair next to a table or lying on the floor with only her head and part of her chest visible. One photograph is blurred, and no one appears to be in the photograph.
After reviewing the evidence, the court found defendant guilty of creating child pornography by photographing his six-year-old child in the nude with her pubic area exposed. Defendant was found not guilty on the charge of knowingly permitting the child to be so photographed. His wife was found not guilty on both charges. The court sentenced the defendant to a one-year conditional discharge. Defendant appeals.
• 1 Defendant contends that he was denied the effective assistance of counsel. This claim is based in part upon his counsel's failure to file a motion for a new trial. A counsel's failure to assert the right of a defendant to a new trial, following a trial where plain and grievous error was committed, amounts to ineffective assistance of counsel. (People v. Knowles (1979), 76 Ill. App.3d 1004, 1009, 395 N.E.2d 706.) Therefore, where a claim of ineffective assistance of counsel is based upon counsel's failure to file a post-trial motion, consideration of the trial errors alleged on appeal is compelled to determine whether any of the contentions are of substantial merit. 76 Ill. App.3d 1004, 1009, 395 N.E.2d 706.
• 2, 3 The first issue defendant raises is whether he was proved guilty beyond a reasonable doubt. The statute under which defendant was convicted provides:
"Any person who photographs, films, videotapes, produces, publishes or otherwise creates child pornography, or knowingly causes another to do so, commits a Class I felony to which a fine of up to $50,000 may be added." (Ill. Rev. Stat. 1981, ch. 38, par. 11-20a(b)(2).)
Child pornography is defined as:
"Matter or a performance, whether live, cinematic or over broadcast media, of whatever nature, is `child pornography' ...