Appeal from the Circuit Court of Lake County. No. 96--CF--1351 Honorable James K. Booras, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
JUSTICE McLAREN delivered the opinion of the court:
The defendant, Stephen E. Lewis, appeals his conviction of child pornography (720 ILCS 5/11--20.1(a)(1)(vii) (West 1994)) and sentence of five years' imprisonment. We reverse.
The State charged the defendant with two counts of child pornography, alleging that between June 13 and October 21, 1995, the defendant (1) "knowingly photographed [J.T.], a child who he knew was under the age of 18 years, while she was depicted in a pose involving a lewd exhibition of her unclothed pubic area"; and (2) photographed J.T. "lewdly exhibiting and exposing the partially developed breast of [J.T.]" in violation of section 11--20.1(a)(1)(vii) of the Criminal Code of 1961 (Code) (720 ILCS 5/11--20.1(a)(1)(vii) (West 1994)).
Section 20.1 (a)(1)(vii) of the Code provides in pertinent part:
"A person commits the offense of child pornography who:
(1) *** photographs *** any child whom he knows or reasonably should know to be under the age of 18 *** where such child *** is: (vii) depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed genitals *** of the child or other person[.]" 720 ILCS 5/11--20.1(a)(1)(vii) (West 1994).
On the day of the trial, August 21, 1996, the State filed a motion to include certain evidence of the defendant's prior bad acts including an October 1995 incident in which the defendant, a postal worker, allegedly molested seven-year-old J.S. during his postal route in Glenview, Illinois; testimony from Robert Williams, a postal inspector, that, while discussing the Glenview incident, the defendant told Williams that he had a problem with his sexual desire for children and treated himself by masturbating to adult pornography when he felt "certain urges"; evidence that the defendant's mailbag contained adult pornographic material, a nude photograph of J.T.'s mother, and a condom; evidence that J.T. told a police officer that in September 1996 the defendant had touched her "private" and told her that he wanted a nude picture of her; and evidence that J.T. later denied to a child advocate that the touching incident occurred and told the advocate that the defendant took the photograph by mistake.
The trial court allowed the State's motion in part, ruling that the evidence concerning the Glenview incident could be presented but that evidence that the defendant's mailbag contained adult pornographic material, a nude photograph of J.T.'s mother, and a condom was inadmissible. The trial court also stated that, if J.T. testified that the photograph of her was taken by mistake, the State would be allowed to impeach her with evidence that, in her original statement to the police, she did not say it was an accident. The trial court did not rule on the admissibility of the evidence that the defendant previously touched J.T.'s "private" or that the defendant acknowledged his alleged problem to Williams.
In response to the trial court's ruling, defense counsel stated that he would have the defendant execute a jury waiver. After a recess, defense counsel stated that based on the rulings the defendant was going to waive his right to a jury trial. In response to the trial court's question regarding the defendant's decision to waive his right to a jury trial, defendant answered "[b]ased on your rulings I see no other choice." The defendant then signed a jury waiver form.
At trial, David Skaja, a Glenview police officer, testified that on October 21, 1995, at about 6:30 a.m., at the Glenview post office, the defendant agreed to accompany Skaja and Glenview police officer Jeff Ader to the Glenview police station in connection with an incident that had occurred on his postal route the previous week. The defendant left his postal bag in the postmaster's office at the post office before leaving with Skaja.
Skaja testified that he was investigating allegations:
"[T]hat a seven-year-old (J.S.) had told her mother that the postman known to her as Steve had exposed what she said was his wiener to her and had also placed her hands upon Steve's wiener and also placed Steve's wiener against her stomach on top of her clothes."
After the defendant was given his Miranda warnings, the defendant said that he did not want to talk to the police. Skaja left the interview room. When Skaja returned to see if the defendant needed anything, the defendant said he wanted to talk about the alleged incident. According to Skaja, the defendant stated that on his postal route on October 14, 1995, a very precocious little girl came to his mail truck, grabbed him by the waist, and tried to pull him out of the truck. He told the girl to leave, and she and her sister went away. Skaja told the defendant that J.S. told Skaja that the defendant showed her pictures of naked women and she saw the defendant's wiener and that the defendant told J.S. that his zipper was broken and he did not wear underpants because he had a rash. The defendant explained to Skaja that he did not show J.S. photographs of naked women but she may have seen the Playboy magazine he carried in his postal bag. The defendant also told Skaja that he had pants with a broken zipper but had not worn them that day and that he got the rash while in the service overseas. The defendant denied touching J.S. and her sister.
According to Skaja, after Assistant State's Attorney Mary Roberts gave the defendant Miranda warnings, the defendant repeated the information he gave to Skaja and again denied touching J.S. and her sister. Pursuant to a search warrant defendant's mailbag was searched. Among the items found in the bag was the photograph at issue in this case (People's exhibit No. 5), which depicts J.T. standing naked in front of a bed, and a nude photo of J.T.'s mother. When questioned about the photo, the defendant stated that he found it on his postal route.
Pursuant to another search warrant, Skaja found the address of the Starlite Restaurant in Zion, Illinois, in the defendant's address book. The manager of the restaurant identified J.T. and her mother, Joan T., from the photos found in the defendant's mailbag. Skaja stated that he spoke to Joan T. at her home in Zion, Illinois. Joan confirmed that the girl in People's exhibit No. 5 was her daughter, J.T.
Postal inspector, Robert Williams, testified that while at the police station the defendant asked Williams if J.S. said that the defendant touched her with his penis. When Williams replied, "yes," the defendant became upset, began to cry, and said that he did not touch the girl but no one would believe him because of his record. Williams told the defendant he found the photos of J.T. and J.T.'s mother. The defendant admitted to Williams that he had a problem with young children and sought therapy with psychiatrists and therapists but stopped treatment out of fear that the doctors would tell the police. The defendant told Williams that he treated himself "by viewing depictions of adult pornography and masturbating to those depictions."
Mark Pleasant, an investigator with the Children's Advocacy Center, spoke with J.T. on May 22, 1996, at her school. J.T. told Pleasant that the defendant was a friend of her mother's, lived in their home, and gave them money and bought them things because he knew J.T.'s father was dead and her mother had a hard time affording things.
On cross-examination, Pleasant testified that J.T. stated that the photo incident occurred after June 1, 1995, her 11th birthday. Her mother was at the store, and her sister was in another room. J.T. had been swimming and decided to take a shower. She went into the bathroom and remembered that she left a towel on her mother's bed. As she went to get the towel, the defendant jumped out and took her picture. The defendant said "oh sh**" and dropped the camera. He promised to get rid of the picture and later told her he had gotten rid of it. J.T. said she was concerned because she knew the defendant might get in trouble for taking a naked picture of a minor. J.T. told Pleasant that the picture was taken by accident, that the ...