People v. Syckle

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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 ...