Court of Appeals of Illinois, First District, Fourth Division
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Appeal
from the Circuit Court of Cook County, No. 16-CR-975; the
Hon. Kerry M. Kennedy, Judge, presiding.
Kimberly M. Foxx, State's Attorney, of Chicago ( Alan J.
Spellberg, John E. Nowak, Veronica Calderon Malavia, and Mary
L. Boland, Assistant State's Attorneys, of counsel), for
the People.
David
P. Sterba, of Walsh, Fewkes & Sterba, of Palos Heights,
and James G. Vanzant and Andrew D. Finke, of Blaine &
Vanzant, LLP, of Evanston, for appellee.
OPINION
REYES,
JUSTICE.
¶ 1
Defendant, Raymond Van Syckle, was charged by indictment with
four counts of child pornography in violation of section
11-20.1 of the Criminal Code of 2012 (Criminal Code) (720
ILCS 5/11-20.1 (West 2014)) and one count of unauthorized
video recording in violation of section 26-4(a) of the
Criminal Code (720 ILCS 5/26-4(a) (West 2014)). Defendant
filed a motion to dismiss the indictment, arguing that the
two images relied on by the State to support the child
pornography charges did not qualify as "lewd" under
the statute. The State voluntarily withdrew one of the images
from consideration but maintained that the second image was
lewd. The circuit court of Cook County ruled in
defendant's favor and granted the motion to dismiss the
indictment in regard to the four child pornography counts,
finding the image was not lewd under the child pornography
statute. Count V of the indictment remained. The State now
appeals the dismissal of counts I through IV. For the reasons
that follow, we reverse the judgment of the circuit court and
remand for further proceedings.
¶ 2
BACKGROUND
¶ 3
Defendant was indicted on two counts of creating child
pornography in violation of section 11-20.1(a)(1)(vii) of the
Criminal Code (counts I and II) (720 ILCS
5/11-20.1(a)(1)(vii) (West 2014)), two counts of possessing
child pornography in violation of section 11-20.1(a)(6) of
the Criminal Code (counts III and IV) (720 ILCS
5/11-20.1(a)(6) (West 2014)), and one count of
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unauthorized video recording in violation of section 26-4(a)
of the Criminal Code (count V) (720 ILCS 5/26-4(a) (West
2014)). This indictment stems from the allegations that on
October 30, 2015, defendant, a pool equipment manager at
Richards High School in Oak Lawn, Illinois, surreptitiously
videotaped J.A., a 14-year-old student he knew was a minor,
while she was changing out of her swimming suit inside the
school locker room.
¶ 4
Defendant filed a motion to dismiss counts I through IV of
the indictment arguing the two images used by the State to
support the child pornography charges did not qualify as
"lewd exhibition" under the statute. The two images
consisted of thumbnails retrieved from a deleted video in
defendant's cell phone; however, only one image is at
issue on appeal. That image depicts J.A. in the process of
changing her clothing while inside a locker room. J.A. is
wearing a sports bra and her bare buttocks are exposed. She
is bent over at the waist. J.A.'s body is at such an
angle that three-quarters of her buttocks are exposed and are
in the foreground of the image.
¶ 5
Defendant argued this image of J.A. changing her clothes in
the locker room is the type of "incidental nudity"
that courts have found to not be lewd within the meaning of
the statute and did not meet the six-factor test set forth by
our supreme court in People v. Lamborn, 185 Ill.2d
585, 592, 236 Ill.Dec. 764, 708 N.E.2d 350 (1999). The State
disagreed, maintaining that the decisive factor, whether the
visual depiction is intended or designed to elicit a sexual
response in a viewer, weighed in favor of finding the image
lewd. Relying on People v. Sven, 365 Ill.App.3d 226,
239, 302 Ill.Dec. 228, 848 N.E.2d 228 (2006), the State
argued this was because the perspective of the image was
taken from a sexualized or deviant point of view, that of a
voyeur.
¶ 6
After hearing argument on the motion, the trial court took
the matter under advisement. Thereafter, the trial court
granted defendant's motion as to all four counts but did
not issue a basis for its ruling. The State then filed a
motion to reconsider in which it reasserted the same
arguments regarding the lewdness factors. The trial court
denied the motion, stating, "I'm going to deny that
based on the fact that the two photos that I was given I do
not consider as being lewd. I don't think they meet the
case law standards * * *." This appeal followed.
¶ 7
ANALYSIS
¶ 8 On
appeal, the State raises two arguments as to why the trial
court's dismissal of counts I through IV of the
indictment must be reversed: (1) the trial court lacked
authority to dismiss the indictment ...