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Docket No. 97984-Agenda 5-March 2005.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ERNEST J. NORMAND, Appellant.

Opinion filed June 3, 2005.

JUSTICE GARMAN delivered the opinion of the court:

In August 2000, defendant, Ernest J. Normand, was arrested andcharged with three counts of possession of child pornography. 720ILCS 5/11-20.1(a)(6) (West 2000). A computer, related equipment,computer disks, and a box of Polaroid photographs were taken fromdefendant's home pursuant to a search warrant. Defendant wasinitially charged with possessing three Polaroid photographs depictingnude and sexualized images of defendant's then 16-year-old formergirlfriend, Sheri F. In November 2000, a grand jury indictment wasissued, charging defendant with four additional counts of possessionof child pornography. These charges were based on images containedon some of the seized computer disks, which depicted what appearedto be unidentified minors in sexualized poses or engaging in sexualactivity. The images were converted into photographs and wereadmitted into evidence. In April 2002, following a bench trial in thecircuit court of Ogle County, defendant was convicted of six countsof possession of child pornography. The trial court sentenced him totwo years' probation. The appellate court affirmed. 345 Ill. App. 3d736. We granted defendant leave to appeal. 177 Ill. 2d R. 315.

The section of the child pornography statute under whichdefendant was charged states:

"(a) A person commits the offense of child pornographywho:

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(6) with knowledge of the nature or content thereof,possesses any film, videotape, photograph or other similarvisual reproduction or depiction by computer of any childor institutionalized severely or profoundly mentallyretarded person whom the person knows or reasonablyshould know to be under the age of 18 or to be aninstitutionalized severely or profoundly mentally retardedperson, engaged in any activity described in subparagraphs(i) through (vii) of paragraph (1) of this subsection[.]" 720ILCS 5/11-20.1(a)(6) (West 2000).

The definition of "child" states:

"(f) Definitions. For the purposes of this Section:

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(7) 'Child' includes a film, videotape, photograph, orother similar visual medium or reproduction or depictionby computer that is, or appears to be, that of a person,either in part, or in total, under the age of 18, regardless ofthe method by which the film, videotape, photograph, orother similar visual medium or reproduction or depictionby computer is created, adopted, or modified to appear assuch. 'Child' also includes a film, videotape, photograph,or other similar visual medium or reproduction ordepiction by computer that is advertised, promoted,presented, described, or distributed in such a manner thatconveys the impression that the film, videotape,photograph, or other similar visual medium orreproduction or depiction by computer is of a personunder the age of 18." 720 ILCS 5/11-20.1(f)(7) (West2000).

In Ashcroft v. Free Speech Coalition, 535 U.S. 234, 152 L. Ed.2d 403, 122 S. Ct. 1389 (2002), the United States Supreme Courtinvalidated two sections of the Child Pornography Prevention Act of1996 (CPPA). One section prohibited any visual depiction, includingany photograph, film, video, picture, or computer or computer-generated image or picture that is or appears to be of a minorengaging in sexually explicit conduct. The other section defined childpornography to include any sexually explicit image that, inter alia,conveys the impression that it depicts a minor engaged in sexuallyexplicit conduct. The Supreme Court invalidated these two sectionsbecause the "appears to be" and "conveys the impression" languagetargeted virtual child pornography, i.e., realistic images of childrencreated entirely by computer software that were not of actual childrenand, therefore, not illegal. The Court found those sections of theCPPA to be overbroad and unconstitutional. Ashcroft, 535 U.S. at256, 152 L. Ed. 2d at 425, 122 S. Ct. at 1405.

In People v. Alexander, 204 Ill. 2d 472 (2003), this courtaddressed a similar provision in the Illinois child pornography statute.Like the statute in Ashcroft, the Illinois statute contained the "appearsto be" and the "conveys the impression" language in defining the term"child." 720 ILCS 5/11-20.1(f)(7) (West 2000). We found thesedefinitions of "child" to be unconstitutional because they wereindistinguishable from the language in the federal CPPA invalidated inAshcroft. We struck only subsection (f)(7), finding that the rest of thestatute could stand without the unconstitutional provisions.Alexander, 204 Ill. 2d at 483-84. This decision was issued afterdefendant filed his initial brief in the appellate court.

In the appellate court, defendant argued that the convictionsbased on the computer images must be reversed in light of theSupreme Court's decision in Ashcroft and that the application of theIllinois statute to his conduct was unconstitutional because there wasno proof that actual children were used in the making of the computerimages. The appellate court rejected this argument, holding that theState need not prove that "the image is not something other than itplainly appears to be through some means other than an examinationof the image itself." 345 Ill. App. 3d at 741.

Before this court, defendant argues that (1) the trial courterroneously relied on the statutory definition of "child" that was laterdeclared unconstitutional by this court in Alexander, (2) the Statefailed to authenticate the photographs admitted into evidence to provethat they depicted real children, and (3) the evidence was insufficientto convict him.

The State argues that defendant has waived his arguments. Hedid not object to the admission of the computer photographs intoevidence. He did not argue to the trial court that the State had failedto establish that the images were of actual children. Defendant did notraise any such contention in his posttrial motion, nor did he argue inhis motion that the trial court failed to find the minors in thephotographs to be real children. To preserve an error for review, adefendant must make an objection at trial and include the error in aposttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Failureto follow this procedure results in waiver of the issues on appeal.People v. Phelps, 211 Ill. 2d 1, 10-11 (2004); People v. Macri, 185Ill. 2d 1, 44 (1998). We note, however, that the rule of waiver is anadmonition to the parties and not a limitation on the jurisdiction of thiscourt. In re W.C., 167 Ill. 2d 307, 323 (1995). Our decision inAlexander was not filed until well after defendant's trial. Therefore,we decline to find waiver and will address defendant's contentions ontheir merits.

Our discussion relates only to the photographs obtained from thecomputer disks seized during the search of defendant's apartment. Thephotographs were taken from two floppy computer disks and one zipdisk. The only objection to their admission into evidence that defensecounsel posed was as to the chain of custody of one photograph. Thetrial court overruled the objection. Sergeant James Wilcox, whoassisted in the search of defendant's apartment, testified that he spokewith defendant as other officers were performing the search.Defendant told Wilcox that he had been collecting pornography forthe previous five years. He told Wilcox that a child was someoneunder 18 years of age. He downloaded the pornographic images fromthe Internet and had saved thousands of such images over the years.When asked how he knew that an image portrayed a person under age18, defendant said he could tell by looking at the photograph. The sizeand weight of the person and the development of their genitalia arefactors defendant would look at to judge the age of the person. Hewould separate out the images of children from those of adults andtransfer them to removable disks titled "younger or young stuff."Defendant told Wilcox he knew child pornography was illegal and thatdefendant, in his words, "fucked up" by not getting rid of it.Defendant also told Wilcox that the computer located inside the frontdoor (the computer that was seized) was his computer and he used itto download pornography from the Internet.

Sheri F., defendant's former girlfriend, testified that she anddefendant broke off their relationship in October 1999. Prior to thattime, she had seen several of their friends use defendant's computerto check their e-mail. Defendant would watch them while they didthis. Sheri F. did not see the friends do anything else on defendant'scomputer. She had occasion to see defendant using the computer.While he was doing so, she saw nude women and small childrendisplayed on the computer monitor. Sometimes the children wereclothed and sometimes they were nude and were engaged in sexualacts. Sheri F. identified defendant's handwriting on the zip disk andfloppy disks from which the pornographic images were retrieved. Thehandwriting on the zip disk said, "Ernest Special Disk."

Defendant testified in his own behalf. He stated that he owned thecomputer seized in the search of his apartment. He lived with aroommate, who had his own computer. During the time he lived in theapartment, more than 10 of his friends would use the computer whenthey were there for word processing, for Internet access, to checktheir e-mail, and to play games. He placed no restrictions on others'use of his computer. It was not password protected. Defendanttestified that not all of the zip disks and floppy disks seized in thesearch belonged to him. Although defendant downloaded about20,000 pornographic images over a five-year period, he did not seekto download child pornography. Most of the time, he would receivethe images compressed into zip files which could not be viewed untilthey were on his computer and were unzipped. Once he looked at theimages, he would delete any that were corrupted or undesirable.Sometimes, he deleted images of children. However, he did not gothrough each zip file he received to verify that no child pornographywas in it.

Defendant denied telling Wilcox that he had child pornographyon his computer. When he told Wilcox that he had "fucked up," hewas referring to the fact that, of the thousands of images hedownloaded, there might have been some of an illegal nature that hedid not review and discard. Defendant denied naming any disk or file"younger" or "young fuck." Those names were given to the filesbefore he downloaded them in compressed format. Defendantconceded that two of the disks admitted into evidence labeled "ErnestSpecial Disk" and "Classics/s-w-o-t-l" were his and contained hishandwriting. The other disk contained only the number "8" and hewas not certain that was his handwriting. When Wilcox askeddefendant if he had any child pornography on his computer, defendantsaid not to his knowledge. Defendant denied telling Wilcox that hewould sort through the images and if persons in the images appearedto be under age 18, he would save the images to a separate disk orfolder titled "younger." He told Wilcox that if he saw any images thatwere questionable, he would put them in a folder, view them anddelete them.

During his closing argument to the trial court, defense counselchallenged the State's evidence as to defendant's knowing possessionof the images taken from the computer disks that were admitted intoevidence. It was counsel's position that the fact that defendant hadother child pornography on his computer was insufficient to prove hisknowing possession of the images in question. Counsel also noteddefendant's testimony concerning the other people who had access tohis computer. Counsel further argued that the State had not provedbeyond a reasonable doubt that the individuals in one of thephotographs admitted into evidence were under the age of 18, basedon their appearance.

The trial judge rendered his verdict from the bench. Referring tothe four photographs taken from the computer disks, the judgedescribed the issue as whether defendant possessed the images fromwhich the photographs came with knowledge of the nature of theimages. The judge noted that defendant admitted he downloadedthousands of pornographic images, that some of those images mayhave been of children, and that defendant would delete the childpornography if he found it, but that he did not check every image. Thejudge also noted the testimony of Wilcox as to his conversation withdefendant in which defendant admitted that there was childpornography in his apartment, that he knew it was illegal and heshould have gotten rid of it. The judge found the testimony of Wilcoxand Sheri F. to be convincing and found defendant guilty on all but thelast count of the indictment. On that count, the judge found reasonabledoubt as to the ages of the individuals in the photograph and he founddefendant not guilty of that count.

Defendant filed a motion for new trial and a motion to reconsiderthe verdict. Both motions alleged several grounds for a new trial, butno issue was raised as to the State's failure to prove or the trialcourt's failure to find that the individuals portrayed in the photographsobtained from the computer disks were of actual children.

Defendant first argues that the verdict is unreliable because thetrial court relied on a statutory definition that was later declaredunconstitutional and, consequently, did not find that the individuals inthe computer photographs were actual children. Defendant asserts thatthe court relied on the "appears to be" definition of "child" containedin subsection (f)(7) of the child pornography statute and that the judgespecifically referred to that language in making his finding of guilt.

We reject this argument. We note that defendant explained toWilcox that he could tell an individual in a photograph was under theage of 18 by looking at the photograph itself, noting particularly theindividual's height, weight, and the development of their genitalia.There was no suggestion by anyone that the individuals depicted in thephotographs were anything other than real children. In fact, the trialcourt did not, as defendant claims, rely on the "appears to be"definition of "child" in finding defendant guilty. The reference to the"appears to be" language was made during defense counsel's closingargument, in which he challenged the age of the individuals in one ofthe computer photographs admitted into evidence. There was nodiscussion about whether the individuals in any of the photographswere real children.

In rendering its verdict, the court stated:

"The other issue that was raised [the first issue beingknowing possession] is the issue of age. That is whether ornot as to these-particularly it was raised as to count seven,Exhibit 15, whether or not the age of the persons or personthat is found in that photograph was under the age of 18 orcould be found to have been. I don't think there could be anyargument and there was none made that as to counts four,five and six, which are Exhibits 13, 14, and 16, that thechildren, the girls depicted in those photographs, are underthe age of 18 and that they are engaged in the type of sexualacts which are prohibited by the statute. And I do find that asto counts four, five, and six, the Defendant has been provenguilty beyond a reasonable doubt.

As to seven, that's photograph Exhibit 15, I do find thatthere is a reasonable doubt as to age of the participants inthat photograph. And I will find the Defendant not guiltyunder count seven."

Clearly, the trial judge believed the individuals depicted in thephotographs to be actual children. He referred to them as "children,""girls," "participants," and "persons." We conclude that the verdict isnot unreliable and that the trial court did not rely on theunconstitutional definition of "child."

Defendant next argues that the photographs taken from thecomputer disks were improperly admitted into evidence without theproper foundation. Defendant further argues that if the photographsthemselves were the evidence that actual children were used toproduce them, it was error for the trial court to admit the imageswithout requiring authentication of them as fairly and accuratelyrepresenting the matter depicted. The result, according to defendant,is that the evidence was insufficient to convict him of possessing thephotographs. We note that defendant has also argued that the Statefailed to prove an essential element of the offense, i.e., that actualchildren were used in making the computer images that defendant wasconvicted of possessing. Defendant's argument regarding theauthentication of the computer photographs is, essentially, a challengeto the sufficiency of the evidence, since defendant's main claim in thisappeal is that some additional proof was required, beyond thephotographs themselves, to establish that actual children weredepicted. Accordingly, we turn to defendant's argument that he wasnot proved guilty beyond a reasonable doubt.

When reviewing the sufficiency of the evidence, "the relevantquestion is whether, after viewing the evidence in the light mostfavorable to the prosecution, any rational trier of fact could havefound the essential elements of the crime beyond a reasonable doubt."(Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319, 61 L.Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); People v. Collins, 106Ill. 2d 237, 261 (1985).

In Alexander, we held that "child" means "actual child." Thestatute requires that the defendant "knows or reasonably shouldknow" that the child depicted is under the age of 18. We noted that inthe context of virtual child pornography, the State could never satisfythe scienter requirement because a virtual child is ageless.Accordingly, we held that the statute prohibits "making andpossessing sexually explicit computer depictions of any actual childunder 18 years of age." Alexander, 204 Ill. 2d at 486. Thus, the Statewas required to prove beyond a reasonable doubt that the sexuallyexplicit images possessed by defendant depicted actual children. Theonly evidence that actual children were depicted by the photographsadmitted at defendant's trial were the photographs themselves.

Defendant cites United States v. Hilton, 363 F.3d 58 (1st Cir.2004), in support of his argument that there must be some proof inaddition to the images themselves to establish that real children aredepicted. In Hilton, a pre-Ashcroft prosecution, the defendant wascharged under the federal CPPA with possession of child pornographythat had traveled between states or between countries. The imageswere taken from backup disks of the defendant's computer hard drive.An expert testified as to the age of the children, using the TannerScale which provides a basis for estimating a person's stage ofphysiological development. In the expert's opinion, nine of the imagesdepicted children from preschool age to young teenagers. AfterAshcroft was decided, the defendant filed a petition for postconvictionrelief, alleging that the government did not prove that the children inthe images were real. The court of appeals affirmed the decision of thedistrict court vacating defendant's conviction. The court rejected thegovernment's argument that the expert's testimony using the TannerScale sufficed to prove that the children were real, finding that avirtual pornographer, with the aid of technology, would be able toproduce images that would mimic the indicators of age used by theTanner Scale. The court disagreed with the argument that as a matterof common sense, the district court found, or must have found, thatthe images represented real children. Rather, the State must presentrelevant evidence in addition to the images themselves to establish thatthey depict real children. Hilton, 363 F.3d at 66.

Hilton does not support defendant's argument. The court ofappeals subsequently withdrew its opinion and issued another opinionin its place. United States v. Hilton, 386 F.3d 13 (1st Cir. 2004). Inthat decision, the court did not mention its withdrawn opinion.Although the court again vacated the defendant's convictions, it didso because the district court did not make a finding of fact that theimages depicted real children. There is no mention of the prioropinion's requirement that the State produce evidence in addition tothe computer images to carry its burden of proof that real childrenwere depicted. Hilton, 386 F.3d at 18-19.

Other federal courts of appeal have concluded that thegovernment need not introduce evidence other than the pornographicimages themselves. See United States v. Slanina, 359 F.3d 356, 357(5th Cir. 2004) (neither expert testimony nor additional evidence isrequired to prove downloaded images are of real children); UnitedStates v. Kimler, 335 F.3d 1132, 1142 (10th Cir. 2003) (concludingthat Ashcroft did not establish a requirement that, absent directevidence of identity, an expert must testify that the unlawful image isof a real child; juries are still capable of distinguishing between realand virtual images and admissibility remains within the sounddiscretion of the trial judge); United States v. Hall, 312 F.3d 1250,1260 (11th Cir. 2002) (although jury was instructed on pre-Ashcroftdefinition of "child," an examination of the pictures viewed by the jurydemonstrates that the children depicted in the images were real andthat a reasonable jury could not have found that the images were ofvirtual children); United States v. Vig, 167 F.3d 443, 450 (8th Cir.1999) (rejecting argument that technology was available to producepornographic images without using real children; government was notrequired to negate what is merely unsupported speculation).

Unlike photographs used as demonstrative evidence, thephotographs taken from the computer images here were themselvesthe evidence of defendant's offense. Accordingly, the question iswhether the State proved beyond a reasonable doubt that the childrendepicted in the images were real children. Although, following ourdecision in Alexander, the State must prove that real children wereused to create pornographic images, it does not follow that Alexanderplaced a higher burden of proof on the State than previously existed.Defendant's argument assumes that computer imaging technology hasadvanced to the stage where pornographic images of children may beproduced without using real children. This is the so-called virtualchild. Defendant did not argue in the trial court nor does he argue inthis court that such technology is so widely available that its use mustbe affirmatively negated in every case.

This court acknowledged in Alexander the findings of Congressin enacting the CPPA, specifically, the finding that " ' "newphotographic and computer imagining [sic] technologies make itpossible to produce by electronic, mechanical, or other means, visualdepictions of what appear to be children engaging in sexually explicitconduct that are virtually indistinguishable to the unsuspecting viewerfrom unretouched photographic images of actual children engaging insexually explicit conduct." ' " Alexander, 204 Ill. 2d at 477-78,quoting 18 U.S.C.