is not reflected in the statute there's no definition in the statute so courts have defined it lambert warns and some of the other courts that have looked at this so that a court can find that it meets the definition of what is a the exhibition is certainly one of the elements if you if you look at roger's the question i mean yes my question is yes the answer to the question is whether it qualifies yes whether it's sufficient to prove beyond a reasonable doubt no and the reason for that is if you look at rogers and the supreme court case riders had to do with whether there was any evidence that supported the language of the indictment so to van extent the court is entitled to look at the exhibit and say is there any evidence here or are you just saying that there is child pornography do you have anything to back it up and roger said that a trial court could look at a grand jury transcript to determine whether there was any evidence here we provided the exhibit to show that there was evidence that this was a real child this was a child under a certain age and this met the definition of lewd exhibition so the court simply found in its own personal decision i don't think it meets the case last year on earth but the case law standards and sand certainly clarified that if you applied those factors initially identified in l'amour in those six just factors that came from the federal  court you don't need one of those factors and one of those factors is whether an objective view or someone in the nature of a boy or would be sexually excited by kind of the sexual exploitation of a teenager you're undressing locker room and there are other cases where there are hidden videos and things and courts have found that to meet the definition of lewd exhibition so did it qualify as any evidence that supported the indictment the answer is yes so did the court have the right to look at that exhibit and the term and whether you know it was a blow up doll or a box or a live team victim and the court certainly had the power to do that we've never objected to producing the exhibit and to showing it to the court but what the court did was apparently just i don't know look at the case law whatever case law that was because there was a lot of case law being offered case law that suggested by blackstone qualify under the statute well that was wrong because the statute was changed case law that suggested partial nudity is insufficient well that was wrong because l'amour unfound topless kids hapless teens to be sufficient so again while the phrase is not fine in the statute the phrase simply has to include some sort of sexual connotation it can't just be a parent taking pictures of the kids in the bath tub it can't be something that would be sold at wal mart or at k mart as some sort of artistic thing that you would put up on the wall it's got to be constitutional have some sort of sexual connotation but then has already found here in illinois and other courts that we've cited to a number of those that when you sort of tisha slee video someone it's an widely recognized type of sexual fetish paraphilia and boy are videos a well known category of pornography when a boy or sets out with his camera to peep through windows he setting out on a hunt not to hunt to physically harm his intended victims but hunt to sexually exploit them by capturing nude images of them without their knowledge these videos are trophies and each win for school or gives him and for years like sexual gratification after delete it but before he deleted it it was able to be censoring the internet to the cloud where these thumbnail images still existed which means that he could download those images at any time where anyone could download those images so the point is that information went to the weight of the evidence available how much of a video you know how how long it played or whatever and if you look at lambeau warning against than all of them are making determinations after the trial is be proved on the evidence not to essentially look at a picture and say my personal values mean it's not lewd or my cultural values mean it's not lewd l'amour and set out several factors i also point out to this court that l'amour didn't adolescent nudity these girls were swimming they pulled off their tabs they were jumping around in the water pictures were taken the court wouldn't find that to meet the definition but the other two pictures where the court found it what they were lewd or standing in front of the camera taking a picture of the defendant was there with them he was in that picture here the defendant is choosing to stay behind the camera if you well there the defendant was in the camera but if you look at the six factors only one of them really applied and the those six factors you go through whether the focal point is on the child's genitals or something that's not the case in lam born if you go through a sexually suggestive setting like a bedroom or something that's not in l'amour and they were standing on a beach if you go through w their children were in a mantra host that's not the case in lamb when they were just standing there if you look at the at tire of the victim while they were invading suits on a beach there's nothing inappropriate there whether the child is fully clothed or partially closed i suppose there would be a factor in favor of lewdness because the child's clothes are half offie or the child's clothes are half off as well and whether the depiction suggests the sexual coyness or willingness to engage in sexual activity that certainly wasn't present in lamb born and of course it can't be present in a case like this where the child doesn't even know what appears to be unaware that she's being surveilled place in the faculty lounge so and then maybe if you look at that factor too when you have state provided any evidence under rogers that would support the allegation that defendant committed one of the theories of child pornography in the four counts there were one image based on four different theories of two creation possession so the only question here is the legal question did the state meet its burden of some evidence and if the state does then it goes back and so the question is some evidence what does that require the elements require a victim have the naked body parts and then the question is whether that depiction is intended or could excite someone like a peeping tom and i think we have that here just like we have that is and i point out to unsigned the young teen there was a babysitter to a child an infant and basically what the defendant did was put the hidden camera in the bad you're in the bathroom so we caught the teenager using the bathroom taking a bath with the baby there was nothing that the teenager was doing that was inappropriate or sexual in nature but that's not what excites  voyeur is excited because they're essentially exploiting the privacy of that young victim by you know taking the pictures when they don't know about it when the victim doesn't know about it so send found three factors to be present and i would argue that there are three factors present here as well the victim is how surely make it the victim is if you look at the picture itself and i know it's a small town now i'm back in today's technology that means nothing that doesn't mean that it isn't you download it to your cell phone you make whatever and large means you wish to project on a wall you could pass it off to your friends so the fact of the size of it has never been relevant for purposes of the analysis it is the capturing of the image and exploiting that kid in the process and so we certainly have that here i would argue we have the focal point because if you look at the picture in the background is the locker room right in the front is where she's bending over taking her clothes off so he made sure smartphone knows that you can take and make lots of modifications to that photo so that photo is sitting there in storage defendant has taken it for his own profi is taking it for his own enjoyment he can download it at any time any hacker can get it anybody who's a service provider to that account can get it so if he took his phone in to get service you know somebody doing service could access whatever whatever he put on the phone and whatever storage it is and could manipulate that photo so it's not the size of the photo just like it's not the length of the video in fact insan there were several videos that sense that we can actually consider each image we don't have to consider the entirety of the video because there's a lot of stuff in those videos where you couldn't see anything where the kid was fully dress defendant was arguing there hey there's not enough because there's a lot on this video so therefore it's not really the focal point and the court said no you can take these images and look at these images individually and that's the point so i don't i am not concerned about whether it meets the definition of any evidence she is under the age she is half naked standing in front of the camera apparently unaware that this person is surveilling her and it clearly is it can be inferred by reasonable trier of fact that this was for his sexual arousal or excitement so it needs three of the factors l'amour may have only had one or two of the factors present and span also found three of the factors present so the point is did the people provide well that look at this but their language or their statutes are slightly different they use the word lascivious we use the word lewd although they've been in black stationery they say they're kind of equivalent they used lewd and lascivious interchangeably so did we meet and not at this point to move it be d a motion to dismiss the answer is yes it's not asking this court to review the picture itself i think well but i find it to be personally lewd or would would the individual photographer find it to be personally lou the question argument that that i've been making which is that we do not have to have proof beyond a reasonable doubt we just have to have something more than an empty box and empty you know photography can abort down you know whatever it has to meet the definition of these three things which is a victim under the age and that there be some sense of it being a lewd exposition exhibition and a lewd exhibition is really defined by these various factors that l'amour an apply and i submit to the court that we have three of the six factors which was sufficient and span and it's more than l'amour so the court doesn't make a finding a so whether that meets the standard beyond a reasonable doubt the court has a right the trial court to find that there three yeah the court doesn't make that finding the court simply says i i don't find the photographs court says paul to be lewd i don't think it meets the case law standards the reason that we addressed that issue is because defendants motion cited to shoot and in the statute one of the categories is failure to step in the fans and then the defendant's motion cited to newbury and that is about due process so we're not disagreeing that a trial court has a right to either apply the statute if that's what the trap or did you are in terms of the pleading requirements or consider whether it meets the level of due process i want i only meant is that it certainly did based on the case law that has interpreted the definition of  quite clear that this is an issue of law it's not reviewed were suspicious of the evidence after a jury trial it's not a mix question of law or fact it's reviewed as a matter of law whether or not this particular invention reasonable mind some evidence which is the standard here we're not talking about whether or not it's all evidence or beyond reasonable doubt that's not really the question i think the state agrees as you point the only question here is whether there's some evidence and if the court were to decide that this meets the standard of some evidence that's a different story there must be a jury trial whether or not it fully needs anything else that's a standard for sufficiency evidence after trial and that locker room sex sure ok and dealt male places a camera in a girls locker room and takes pictures that are fully clothed fourteen year old girl so i know you want me not to particular points for the element of whether it's exhibition and there's obviously other elements of the sashing but the question before the court is does the state's evidence all the evidence on this fact meet the standard of some evidence under the statute and so to some extent i would say it's a value waiting at but as an issue of law and not a fact the notion of putting that camera in the room what the trial court has a right to do is evaluate the existence of the evidence not the quality not the sufficiency now whether it proves all of the elements of the offense this certainly qualified as the existence of some evidence that supported the allegations that's all before this court nothing else this court doesn't have to make any findings it doesn't have to evaluate the evidence it simply says does it meet any of these factors and if it does that's more than any evidence or no evidence that is some evidence now we're going to send it back to a trier of fact to determine whether the plaintiffs are in this case the state can meet the elements of  know i did discuss those because i wanted the court to have some background i made it clear in the brief it was background i think in an appeal the court you know it's just you can't wrap the picture in the middle of nowhere and then start discussing so i don't ask the court accidental it's not incidental it's not some parents taking a picture of a kid this picture was designed to excite somebody to be basically a trophy and that's a reasonable inference from back fire you don't have to make those findings the trial court shouldn't make those