Appeal from the Circuit Court of Cook County; the Hon. Earl E.
Strayhorn, Judge, presiding.
JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Defendant, found guilty after a bench trial on four counts of exhibiting child pornography under section 11-20.1(a)(2) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1983, ch. 38, par. 11-20.1(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's disbelief or ignorance of the victimized children's ages.
The 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 "photo session." 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.
After the "photo session," defendant and one of the twins went into his bedroom, prior to which he cautioned Jackson and the remaining twin "to just be still" and not to "mess with anything." 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.
Defendant 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.
Defendant 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' 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 "felt like somebody hit me * * * with a sledge hammer."
During 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 "was quite emphatic about the ages of the girls." Defendant also boasted of having had sexual intercourse with some of the children, including sisters.
On June 19, 1984, youth officers of the Chicago police department obtained a warrant to search for photographic child pornography in defendant's 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.
Defendant 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. 11-4(a), 11-20.1(a)(1)(vii), 11-20.1(a)(2), 11-20.1(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's case, the court, on defendant's 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.
• 1 Defendant 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 "exhibited" his child pornography to them.
In pertinent part, section 11-20.1(a)(2) of the Code at the time of the offenses provided (Ill. Rev. Stat. 1983, ch. 38, par. 11-20.1(a)(2));
"(a) A person commits the offense of child pornography who:
(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 * * * [`depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the genitals of the child or ...