People v. Wayman

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People v. Wayman

State: Illinois

Court: 5th District Appellate

Docket No: 5-05-0559 Rel

Case Date: 03/10/2008

Preview:NO. 5-05-0559
N O T IC E Decision filed 03/10/08. The text of this dec ision m ay b e changed or corrected prior to the P e t i ti o n for filing of a or the

IN THE APPELLATE COURT OF ILLINOIS

Re hea ring

FIFTH DISTRICT ________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Montgomery County. ) v. ) No. 02-CF-234 ) JEFFREY R. WAYMAN, ) Honorable ) John P. Coady, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________ PRESIDING JUSTICE STEWART delivered the opinion of the court: Following a bench trial in the circuit court of M ontgomery County, the defendant, Jeffrey R. Wayman, was convicted of one count of child pornography (720 ILCS 5/1120.1(a)(1)(vii) (West Supp. 2001)) and one count of aggravated assault (720 ILCS 5/122(a)(13) (West 2000)). On appeal, the defendant argues as follows: (1) that the State failed to prove him guilty of child pornography beyond a reasonable doubt and could not have proved him guilty of that charge because no photographs were submitted in support of the charge; (2) that the State failed to prove him guilty beyond a reasonable doubt of aggravated assault; (3) that he was denied the effective assistance of counsel due to his attorney's failure to move to sever unrelated charges; and (4) that he is entitled to a $5-per-day credit against his fine for the 47 days he spent in custody prior to sentencing. The State concedes that the defendant is entitled to a $5-per-day credit against his fine for the 47 days he spent in custody prior to sentencing. We affirm the aggravated assault conviction, reverse the child

disposition of the same.

pornography conviction, and remand for a new sentencing hearing.

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FACTS On October 18, 2002, the defendant was charged by information with two counts of child pornography (720 ILCS 5/11-20.1(a)(1)(vii) (West Supp. 2001)) and one count of aggravated assault (720 ILCS 5/12-2(a)(13) (West 2000)). The State alleged that the conduct giving rise to the child pornography charges occurred on or about September 28, 2001 (count I), and between October 2001 and June 2002 (count II). Both child pornography charges alleged that the defendant "knowingly photographed Jane Doe, a child that [the defendant] knew to be under the age of 18 years, while Jane Doe was depicted or portrayed in a pose or setting involving a lewd exhibition of her unclothed genitals, pubic area[,] and buttocks." "Jane Doe" is D.J.1 , who was the defendant's 10-year-old stepdaughter during the time period set forth in the information. The case proceeded to a bench trial on April 1, 2005, with the court hearing additional evidence, allowing closing arguments, and announcing its decision, respectively, on May 3, 2005, July 14, 2005, and July 18, 2005. The parties stipulated to the chain of custody of physical evidence, that the investigating officer and D.J.'s mother could testify to statements made by D.J., and that witnesses could refer to their reports while testifying. The State's first witness was A.B., D.J.'s mother and the defendant's wife at the time of the charges, but his ex-wife at the time of the trial. A.B. testified that when she was married to the defendant, D.J. lived with them, along with Do.J., A.B.'s son from a former marriage, and M.W., the son of A.B. and the defendant. A.B. testified that in mid-October 2001, her mother called her at work. A.B. left work and went to her mother's house. There, D.J. told her that, two weeks earlier, the defendant had taken nude photographs of her after making her take off her clothes. D.J. told A.B. that
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We will abbreviate the names of the alleged child victim and her family members in

an effort to preserve their privacy. 2

she had not agreed to the defendant taking the photographs but that he had "forced her clothes off and told her to just stand in the bathroom so that he could take the pictures." A.B. and D.J. then went home, where A.B. found nude photographs of D.J. on the home computer located in the bedroom occupied by A.B. and the defendant (the master bedroom). After A.B. and D.J. viewed the photographs, A.B. deleted them. The defendant's attorney objected to A.B. describing what she had seen on the computer, arguing that what she had seen was irrelevant unless the State was going to present the actual photographs. Defense counsel argued that the State could never prove that the defendant had taken photographs that constitute child pornography without introducing the actual photographs into evidence. The State responded that the defendant was charged "with taking the photographs, not necessarily possessing the photographs." The State argued that the court was not required to have the actual photographs in order to determine whether the defendant had taken photographs that fit the definition of child pornography. The State argued that the photographs could be described by a witness who had actually seen them and could identify their nature and content. The court overruled the defendant's objection and allowed A.B. to describe the photographs. A.B. testified that she had seen four photographs of D.J. on the computer. The first photograph was a full frontal shot of D.J.'s nude body, taken in the bathroom connected to the master bedroom. A.B. testified that, in the first photograph, she could see "part of [D.J.'s] breast and her vaginal area." Although D.J. was attempting to cover herself, A.B. could still see all of her vaginal area, as there was "very little pubic hair to cover anything." A.B .

described the second photograph as a full rear view of D.J. Again, she was completely naked, and she was looking back at the camera. D.J. told A.B. that the defendant "had her to look at the camera." A.B. testified that D.J.'s buttocks were completely shown in this photograph.

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A.B. described the third photograph as follows: "Well, there was where he had cut the section of her vaginal area out and made its own picture." She testified that the defendant "[b]lew it up and made it its own picture." She testified that the entire photograph was of D.J.'s "vaginal area." A.B. described the fourth photograph as a cropped, enlarged picture of D.J.'s buttocks only, similar to the third photograph, with the central focus of the picture being D.J.'s buttocks. A.B. did not explain how she concluded that the third and fourth pictures were modifications of the two photographs the defendant had taken, how she knew that the defendant had made the modifications, or how she knew that the images shown were parts of D.J.'s body. After viewing and deleting the photographs, A.B. confronted the defendant. He acknowledged taking photographs and putting them on the computer, but he denied that he took them for any sexual purpose, claiming that they "were for art." A.B. told the defendant not to take any more photographs, but she did not contact the police or tell anyone else about the incident or the photographs. A.B. did not testify that the defendant acknowledged enlarging or modifying any of the photographs that had been taken and placed on the computer. A.B. also testified about events that occurred between October 2001 and June 2002, which were relevant to the second child pornography count. The trial court acquitted the defendant of that charge. The evidence pertaining to that charge is only relevant to this appeal to the extent that it explains the circumstances that led to the aggravated assault charge. A.B. testified that in June 2002, D.J. told her that she thought the defendant was taking photographs of her from outside her bedroom window while she was getting undressed. Based upon this information, A.B. again went to the home computer and found

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"pictures that looked like they were taken from outside the window." She also found additional photographs that appeared to have been taken of D.J., partially nude, while she was asleep. Two or three days after viewing these photographs, A.B. confronted the defendant and told him that she was going to leave and take their son, M.W., then 1

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