Appeal from Circuit Court of McLean County No. 08CF419 Honorable Robert L. Freitag, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Turner
PRESIDING JUSTICE TURNER delivered the judgment of the court, with opinion.
Justices Steigmann and Appleton concurred in the judgment and opinion.
¶ 1 In January 2010, a jury found defendant, Frank Louis McSwain, Jr., guilty of five counts of child pornography. In April 2010, the trial court sentenced him to 30 months' probation and 90 days in jail.
¶ 2 On appeal, defendant argues (1) he is entitled to a new trial based on the trial court's refusal of his proffered definition of "lewd" in light of jury questions, (2) he is entitled to a new trial based on the admission of uncharged images found in his e-mail account, and (3) four of his five convictions for child pornography must be vacated. We affirm in part, vacate in part, and remand with directions.
¶ 4 In May 2008, a grand jury indicted defendant on five counts of child pornography (720 ILCS 5/11-20.1(a)(6) (West 2008)), alleging that, with knowledge of the nature or content thereof, he possessed photographs of B.M., a minor under the age of 18, depicted or portrayed in a pose, posture, or setting involving a lewd exhibition of B.M.'s unclothed breasts. Defendant pleaded not guilty.
¶ 5 In January 2010, defendant's jury trial commenced. Jeff Stanford, a representative of Yahoo! Incorporated, testified the company hosts e-mail and instant messaging and stores images and photos. When a customer opens an e-mail account, the information is stored electronically on Yahoo's servers. A user's e-mails "are kept as long as the user retains them." Users can also create folders to store items. Stanford stated Yahoo cannot retrieve deleted e-mails.
¶ 6 Jasmine Harris testified she was 21 years old. In the summer of 2007, Harris and her longtime friend, B.M., decided to take pictures of each other in part because Harris had hoped to someday pose for Playboy. Five pictures that Harris took of B.M. formed the basis for the charges against defendant and were identified as exhibit Nos. 7 through 11.
¶ 7 In exhibit No. 7, B.M., wearing only underwear, is leaning against a bed. Her breasts are fully exposed. In exhibit No. 8, B.M. is lying on the bed with one breast exposed and the other covered by a stuffed animal. In exhibit No. 9, B.M. is shown squatting against a closet door. She is wearing underwear in the picture and a portion of her left breast and nipple can be seen. Exhibit No. 10 shows B.M. wearing no clothes. She is leaning over the bed and both of her breasts can be seen. Exhibit No. 11 shows B.M. kneeling on the bed facing the camera. Her unclothed breasts can be seen.
¶ 8 Over defense counsel's objection, Harris testified to other photos that had been taken. Exhibit No. 12 showed B.M. seated in a chair with a blanket draped over the front of her body. Exhibit No. 13 showed a similar pose featuring Harris. Harris testified the pictures were taken with her digital camera and she sent them to B.M. over the Internet.
¶ 9 Again over defense counsel's objection, Harris testified to two pictures that were taken of her and B.M. by defendant in November 2007, after B.M. had turned 18. Exhibit No. 14 showed B.M. and Harris, both naked, squatting across from each other, their hands on the other's thighs. The side of B.M.'s right breast is visible as are both of Harris' breasts. Exhibit No. 15 showed B.M. and Harris, both naked and sitting next to each other. The breasts of both females were visible.
¶ 10 B.M. testified she was born in November 1989 and turned 18 in November 2007. She stated defendant was a youth advocate at her high school and they became acquainted as he was an advisor to her step club. B.M. testified she and defendant discussed Harris' desire to pose for Playboy in his office at the school. Defendant asked to see the "Playboy-type pictures" of B.M. She sent the photos in exhibit Nos. 7 through 11 to defendant via e-mail in June 2007 when she was a 17-year-old, high-school junior. Defendant indicated he received the pictures. Defendant and B.M. had a discussion about who took the photos, and B.M. sent him the pictures of her and Harris shown in exhibit Nos. 12 and 13. B.M. stated the photos in exhibit Nos. 14 and 15 were taken at defendant's house after she turned 18. B.M. later sent those pictures to defendant via e-mail.
¶ 11 On cross-examination, B.M. stated defendant never asked her to take pictures of herself naked. B.M. had told defendant that she and Harris had taken naked pictures in the past, and he wanted proof.
¶ 12 After the completion of B.M.'s testimony, the trial court instructed the jury that exhibit Nos. 7 through 11 pertained to the charges filed by the State. The court stated exhibit Nos. 12 and 13 were being offered for the limited purpose of showing the identification of the parties involved in taking the pictures and as evidence of the conversation that B.M. allegedly had with defendant. Exhibit Nos. 14 and 15 were offered for the limited purpose to show defendant's knowledge and possession of the various photographs.
¶ 13 Bloomington police detective Michael Burns testified he obtained a search warrant for defendant's Yahoo e-mail account. After speaking with B.M. about the photographs and believing them to be child pornography, Burns placed defendant under arrest. Defendant "continuously asked *** how he could be charged for pictures that were sent to him in an e-mail."
¶ 14 Defendant testified in his own behalf. He stated he was a youth advocate for Project Oz at a Normal high school in 2007 and became acquainted with B.M. Defendant stated he had no knowledge the June 2007 photos were taken and he did not request that they be taken. When discussing the need to find a coach for the drill team, B.M. told defendant about Harris and mentioned Harris wanted to pose for Playboy. Defendant testified he received the e-mail containing the five photos of B.M. He clicked on several of the images and thought they would be deleted. Instead, defendant stated the pictures "were moved to a folder as opposed to being deleted."
¶ 15 On cross-examination, defendant testified he remembered B.M. and Harris coming over to his residence in November 2007. He denied taking the photos of the two females in exhibit Nos. 14 and 15. Defendant later e-mailed the photos in exhibit Nos. 14 and 15 to Lenny Bell with the admonition that "this cannot leave your hands." Defendant stated he wanted Bell to hold onto them "if something were to happen." After police began investigating defendant's e-mail account in February 2008, defendant successfully deleted the photos sent by B.M.
¶ 16 Following closing arguments, the trial court instructed the jury that to find defendant guilty, it must find he knowingly possessed the image at issue, that he knew or should have known the person depicted was under the age of 18, and the image depicted "a lewd exhibition of the fully or partially developed breast of the child."
¶ 17 During deliberation, the jury sent a note asking for the definition of "lewd." The trial court proposed the following response from People v. Lamborn, 185 Ill. 2d 585, 592, 708 N.E.2d 350, 354 (1999):
"In determining whether a photo depicts a 'lewd' exhibition of the breasts of a female child, for purposes of a child pornography charge, you should consider the following six factors: (1) whether the focal point of the visual depiction is on the child's breasts; (2) whether the setting is sexually suggestive; (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 depiction is intended or designed to elicit a sexual response in the viewer."
The State concurred in the proposal. Defense counsel suggested an alternate definition from Lamborn defining "lewd" as "obscene, lustful, indecent, lascivious, or lecherous." The court rejected defense counsel's proposal but added the following language over the State's objection: "Mere nudity without lewdness is not child pornography." The court also added "a photo need not involve all six of the factors set forth in the law to be a 'lewd' exhibition of the breasts of a female child, for purposes of a child pornography charge."
¶ 18 Thereafter, the jury sent a second note asking to receive a copy of the e-mails as well as a dictionary definition of "lewd." The trial court responded as follows: "The court has provided a legal definition of 'lewd.' Please rely on that instruction." The court brought the jurors back into the courtroom to view the e-mails.
¶ 19 Following further deliberation, the jury found defendant guilty on all five counts. During the polling of the jury, the second juror dissented from the verdicts. The trial court then ordered them to continue their deliberations. Sometime later, the jury returned guilty verdicts on all five counts.
¶ 20 In February 2010, defendant filed a posttrial motion arguing, inter alia, the trial court erred in admitting evidence of the November 2007 incident where Harris and B.M. had their pictures taken at defendant's house and the verdict was the result of the jury's confusion over the definition of "lewd."
¶ 21 In April 2010, the trial court conducted a hearing on the posttrial motion. In denying the motion, the court stated the definition of "lewd" that was given to the jury was "about the most complete legal definition" that could be given based on the case law. The court also stated the uncharged pictures were ...