dissenting:
Defendant was convicted of two counts of producing child pornography (720 ILCS 5/11 — 20.1(a)(1)(vii) (West 1996)) and three counts of possessing it (720 ILCS 5/11— 20.1(a)(6) (West 1996)) on the basis of five Polaroid photographs he took of two 13-year-old girls at a campsite near the Mackinaw River. The trial court sentenced defendant to concurrent prison terms of 10 years for the two production counts and 3 years for the possession counts.
Curiously, the prosecutor separated the five photographs into the two separate categories of production and possession for purposes of prosecution. The production charges were directed at the two Polaroid photos he personally took with the camera. The three possession charges were directed at the Polaroid photos in which he posed with one of the girls while the other girl snapped the picture. In truth, he could as well have been charged with both possession and production as to all of the photographs since this episode was a single frolic while two 13-year-old girls were in his custody.
The majority, applying a de novo standard of review, affirms defendant’s convictions for possession of child pornography, but reverses his convictions for production of child pornography based solely on its own belief that the three photographs which form the basis for his production convictions are not “lewd” under the child pornography statute. A de novo standard of review, however, is inappropriate when reviewing the sufficiency of the evidence in a child pornography case. Moreover, one of the photographs in this case, State’s Exhibit No. 2, could be deemed sufficient to support at least one of defendant’s convictions for production of child pornography. Therefore, I respectfully dissent.
The majority is undoubtedly correct that this court will review questions of statutory construction, such as the meaning of the term “lewd exhibition” in the child pornography statute, under a de novo standard of review. 185 Ill. 2d at 590. The de novo standard of review, however, is completely inappropriate when this court reviews the sufficiency of the evidence in a child pornography case. No statute has been cited which requires interpretation by this court. Once the trier of fact makes a factual determination that the photographs in question depict the victims in poses which focus on their breasts and buttocks and are obviously intended to excite sexual desire, this court has no authority to substitute its own judgment for that of the trier of fact.1 See People v. Harre, 155 Ill. 2d 392, 398 (1993). Rather, this court, as a court of review, must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Digirolamo, 179 Ill. 2d 24, 43 (1997).
When the correct standard of review is applied, State’s Exhibit No. 2 is more than sufficient to support one of defendant’s convictions for production of child pornography. State’s Exhibit No. 2 does not depict the victims swimming or frolicking in the river, as the majority fancifully suggests. The topless 13-year-old children are posed, standing arm in arm and smiling coyly at the camera as they dangle the tops of their bikinis from their hands. The photograph depicts the victims performing a striptease, and the sexual content of the photograph is obvious. The majority’s statement that it finds nothing “necessarily abnormal” about this “whimsical [ ],” “uninhibited moment of adolescent spontaneity” is inexplicable. How can the majority justify its holding when it also proclaims, “[W]e abhor defendant’s exploitation of the victims in this case”? 185 Ill. 2d at 593, 595.
Moreover, there is no material difference between the depiction of the victims in State’s Exhibit No. 2 and State’s Exhibit Nos. 1 and 5, which the majority agrees constitute child pornography. Thus, the majority’s assertion that the victims are “not necessarily in inapproprir ate attire” in State’s Exhibit No. 2 is self-contradictory. The victims are wearing exactly the same attire in State’s Exhibit Nos. 1 and 5 as in State’s Exhibit No. 2. In all three photographs, the victims are wearing bikinis and have removed their bikini tops to reveal their breasts. The only difference between State’s Exhibit No. 2 and State’s Exhibit Nos. 1 and 5 is that the victims are posed together rather than with defendant. While the presence of the nude defendant in State’s Exhibit Nos. 1 and 5 is an obvious indicator that those photographs are “intended to excite sexual desire,” his absence from the photograph in State’s Exhibit No. 2 does not alter the comparable depiction of the children, nor does it somehow strip State’s Exhibit No. 2 of its sexual content.2
It has been said that bad cases make bad law. This is just such a case. What the court is really choking on here is the 10-year sentence meted out to this defendant on the production of child pornography charge. The range of sentences for this conviction is 4 to 15 years. 720 ILCS 5/11 — 20.1(c) (West 1996); 730 ILCS 5/5 — 8—1(a)(4) (West 1996). The range of sentences for the possession charge at the time of defendant’s sentencing was one to three years.3 720 ILCS 5/11 — 20.1(c) (West 1996); 730 ILCS 5/5 — 8—1(a)(7) (West 1996). Defendant received a three-year sentence on that charge, which the majority is willing to affirm.
Parenthetically, a reasonable person would likely conclude that production of child pornography as defined in the statute is aimed most strongly at the person who is producing child pornography for purposes of distribution and use that is broader than the mere posing and snapping of a picture which the defendant did in this case. Hence, the shock to the majority of a 10-year sentence where the permissible range of sentences is 4 to 15 years is understandable.
Yet, instead of opting to merely reduce the sentence, the majority opts to overthrow the accepted standard of review and erroneously asserts an improper de novo standard. This approach, which overthrows the accepted and long-standing standard of review, creates a new and unfortunate standard simply to reach a desired result. This is a clear example of result-oriented decisionmaking which is improper and has long been rightfully condemned. The majority opinion thus distorts the law and clearly implies that the personal predilections of the individual members of this court, not reason and precedent, guide this court’s decisionmaking.
Shocked at the lengthy sentence, the only correct and intellectually honest approach for the majority would have been to reduce the 10-year sentence, an approach that is legally acceptable and within the province of this court under Supreme Court Rule 615(b)(4). See People v. O’Neal, 125 Ill. 2d 291, 298 (1988). For the reasons given, I respectfully dissent.
This court has applied a de novo standard of review when determining whether materials are obscene under the test established by the United States Supreme Court in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). See City of Chicago v. Kimmel, 31 Ill. 2d 202, 207-08 (1964); City of Chicago v. Universal Publishing & Distributing Co., 34 Ill. 2d 250, 252 (1966); City of Chicago v. Geraci, 46 Ill. 2d 576, 578 (1970). This standard of review is inappropriate in this case for two reasons. First, the Miller obscenity standard does not apply to child pornography. People v. Geever, 122 Ill. 2d 313, 320 (1988). Child pornography cases do not require a determination whether the work in question, taken as a whole, has serious literary, artistic, political or scientific value. Geever, 122 Ill. 2d at 320. Second, this case does not involve an issue of constitutional interpretation. Defendant does not allege that the photographs he produced and possessed are constitutionally protected. A de novo standard of review was appropriate in the obscenity cases because the defendants argued the materials they possessed were protected under the first amendment, and this court had to make “an independent constitutional judgment as to whether the publications in issue are obscene or constitutionally protected.” (Emphasis added.) Geraci, 46 Ill. 2d at 578. This case, by contrast, begins and ends with a far more pedestrian inquiry: Are the photographs in question sexually suggestive? There is no constitutional question inherent in such an inquiry.
The majority emphasizes that State’s Exhibit Nos. 1 and 5 “involv[e] a lewd exhibition of defendant’s unclothed penis and of the victims’ unclothed partially developed breasts.” (Emphasis added.) 185 Ill. 2d at 596. Defendant, however, is an adult, not a child, and his nudity is not covered by the child pornography statute.
After defendant’s sentencing, the General Assembly increased possession of child pornography from a Class 4 felony to a Class 3 felony. See Pub. Act 90 — 68, § 2, eff. July 8, 1997, codified at 720 ILCS 5/11 — 20.1(c). The range of sentences for possession of child pornography is now to two to five years. 730 ILCS 5/5 — 8—1(a)(6) (West 1996).