People v. McKown

2022 IL 127683

215 N.E.3d 831

465 Ill.Dec. 626

The PEOPLE of the State of Illinois, Appellee,

v.John T. MCKOWN, Appellant.

Docket No. 127683

Supreme Court of Illinois.

Filed November 28, 2022.

Rehearing denied January 23, 2023

James E. Chadd, State Appellate Defender, Catherine K. Hart, Deputy Defender, and Bryan JW McIntyre, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Katherine M. Doersch and Garson S. Fischer, Assistant Attorneys General, of Chicago, of counsel), for the People.

CHIEF JUSTICE THEIS delivered the judgment of the court, with opinion.

¶ 1 The questions presented in this appeal are (1) whether pictures of young children that defendant modified to depict sexual conduct constitute child pornography under section 11-20.1 of the Criminal Code of 2012 (Code) ( 720 ILCS 5/11-20.1 (West 2016) ), (2) if so, whether section 11-20.1 of the Code is consistent with the first amendment to the United States Constitution ( U.S. Const., amend. I ), and (3) whether sufficient corroboration existed to satisfy the corpus delicti rule as to defendant's convictions for various sexual offenses. Answering all questions in the affirmative, we affirm the appellate court's judgment. 2021 IL App (4th) 190660, 449 Ill.Dec. 984, 180 N.E.3d 909.

¶ 2 BACKGROUND

¶ 3 Based on allegations that he sexually abused his grandson, J.M., the State charged defendant John T. McKown with three counts of predatory criminal sexual assault of a child ( 720 ILCS 5/11-1.40(a)(1) (West 2016)) and three counts of aggravated criminal sexual abuse (id. § 11-1.60(c)(1)(i)).

¶ 4 In count I, defendant was charged with predatory criminal sexual assault of a child for placing his penis in J.M.’s anus. In count II, defendant was charged with predatory criminal sexual assault of a child for placing his penis in J.M.’s mouth. In count III, defendant was charged with predatory criminal sexual assault of a child for placing an object in J.M.’s anus. In count IV, defendant was charged with aggravated criminal sexual abuse for placing J.M.’s hand on defendant's penis. In count V, defendant was charged with aggravated criminal sexual abuse for transferring his semen onto J.M.’s buttocks. In count VI, defendant was charged with aggravated criminal sexual abuse for placing his hand on J.M.’s penis.

¶ 5 The State also charged defendant with one count of child pornography (id. § 11-20.1(a)(1)(ii) ) for depicting or portraying a child whom he knew to be under the age of 13 where the child was actually or by simulation engaged in an act of sexual conduct that involved the child's mouth and the sex organs of another person (count VII).

¶ 6 In April 2019, defendant's bench trial began. J.M. was then 12 years old. He testified that, for several years up to 2017, he would regularly visit his father, his grandfather (defendant), and his grandmother at their home in Decatur, Illinois. According to J.M., defendant started sexually abusing him when he was roughly six years old. J.M. testified that defendant anally penetrated him on numerous occasions in the bathroom of defendant's home. When defendant finished, he left a "sticky" substance on J.M.’s buttocks. J.M. also testified that defendant forced him to perform oral sex and that defendant touched J.M.’s penis with his hand several times. J.M. denied having ever touched defendant's penis.

¶ 7 J.M. testified that defendant told him not to tell anyone about the abuse or he would "beat [him] up" and otherwise harm J.M.’s family. According to J.M., the abuse last occurred in the summer of 2017, which was the last time that J.M. stayed at defendant's home. He testified that he finally told family members about the abuse because he "was just tired of it."

¶ 8 J.M. further testified that he kept his toys in the basement of defendant's home. He reported that defendant had a "little area" in the basement. Once, when J.M. went into that area, he saw "pictures of *** cut out little girls with pictures of cutout penises in their mouths."

¶ 9 J.M. acknowledged having been interviewed by someone at the Child Advocacy Center in December 2017 and in October 2018. On cross-examination, defense counsel elicited certain inconsistencies between J.M.’s testimony at trial and his statements during the two interviews. For instance, during the first interview in December 2017, J.M. stated that defendant had abused him in three different houses, whereas at trial, he testified that the abuse happened exclusively in one home. During the interview from October 2018, J.M. stated that his grandmother sexually assaulted him with defendant's assistance. At trial, J.M. testified that only defendant abused him.

¶ 10 Detective Eric Matthews of the Decatur Police Department also testified. On January 15, 2018, Matthews went to defendant's home to speak with him about J.M.’s allegations of abuse. According to Matthews, defendant initially denied them. Matthews testified that defendant gave him permission to search the home and directed him to an area of the basement that defendant referred to as his man cave. Defendant told Matthews that he watched pornography there.

¶ 11 When Matthews entered that part of the basement, he saw a "makeshift desk" with stacks of DVDs, magazines, and a mostly empty jar of Vaseline. Matthews testified that he also saw "multiple cutout pictures of young female children's faces that had slits cut into the mouths and cutout images of male penises inserted into those slits." According to Matthews, defendant informed him that he had been cutting out images of young girls’ faces and inserting penises into their mouths for years. Defendant further told Matthews that he had been sexually abused as a child and that he believed he needed counseling.

¶ 12 Matthews testified that, when he asked defendant how J.M. would have the information needed to make such allegations, defendant stated that J.M. had walked in on him a few times while he was masturbating. Upon Matthews's request, defendant agreed to speak with him at the police station. Matthews drove defendant to the police station; he was neither handcuffed nor placed under arrest at that time.

¶ 13 The recording of defendant's interview at the police station on January 15, 2018, was played at trial. During the interview, defendant eventually told an officer that J.M. had walked into the basement while defendant was masturbating and grabbed defendant's penis. According to defendant, J.M. may have gotten defendant's semen on his hand. Defendant later admitted that he did not try to stop J.M. from touching him. Defendant claimed that, on another occasion, he taught J.M. how to masturbate. Additionally, defendant stated that he masturbated to the images of young girls—whose faces he cut from parenting magazines—roughly every two weeks.

¶ 14 Matthews testified that on January 24, 2018, defendant was arrested and brought back to the police station. Matthews interviewed defendant again, and a recording of the interview from January 24, 2018, was played at trial. At the outset, Matthews informed defendant of the charges against him and read him the Miranda warnings. See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Matthews then encouraged defendant to make a full disclosure of what happened. Defendant told him that the sexual contact with J.M. occurred in the basement of his home, not in the bathroom. Defendant stated that he placed his hand on J.M.’s penis to show him how to masturbate. Defendant also asserted that J.M. asked him about anal sex and then pulled his pants down and bent over. Defendant stated that he ran his penis "up and down" J.M.’s buttocks, and he acknowledged that his penis may have gone into J.M.’s anus.

¶ 15 On cross-examination, Matthews acknowledged that defendant's recounting of events changed significantly from the first interview to the second interview. Matthews further acknowledged that he repeatedly suggested that defendant was not being honest during the two interviews. Yet, Matthews testified that defendant never appeared to be confused or in distress during the interviews. According to Matthews, at various points during the interviews, he attempted to take a break only to have defendant call him back to continue the conversation. And Matthews testified on redirect examination that it was not uncommon for a defendant to change his story over time.

¶ 16 Defendant's wife testified that she had never seen J.M. in the bathroom with defendant. J.M.’s father (defendant's son) similarly testified that he had never seen defendant in the bathroom with J.M. According to J.M.’s father, defendant did not spend much one-on-one time with J.M.

¶ 17 The Macon County circuit court ultimately found that the State had proven defendant guilty beyond a reasonable doubt of predatory criminal sexual assault of a child (count I), two counts of aggravated criminal sexual abuse (counts IV and V), and unlawful possession of child pornography (count VII).¹ The court acquitted defendant of two counts of predatory criminal sexual assault of a child (counts II and III) and one count of aggravated criminal sexual abuse (count VI).

¶ 18 The trial court credited defense counsel for highlighting inconsistencies in J.M.’s testimony. The court stated that, if the State's case were based solely on J.M.’s testimony, defendant may have found himself "in a much different position." At the same time, the court had no doubt that "something bad" happened to J.M. The court explained that defendant's uncoerced admissions "were obviously very important, if not critical, to the State's case." The court also determined that the physical evidence found in defendant's basement corroborated defendant's admission that he had "violated" J.M. On the child pornography count, the court noted that the images involved "actual children apparently cut out of...