People v. Gumila ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Gumila, 2012 IL App (2d) 110761Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption VERNOR GUMILA, Defendant-Appellant.
District & No. Second District
Docket No. 2-11-0761
Filed December 6, 2012
Held Defendant’s conviction for possession of child pornography was upheld
(Note: This syllabus over his contentions that the evidence of the Internet browsing history for
constitutes no part of his computer showing a history of visits to sites with names suggestive
the opinion of the court of child pornography constituted improper other-acts evidence and that
but has been prepared the evidence was insufficient to establish that he knowingly and
by the Reporter of voluntarily possessed the images found on his computer, since the
Decisions for the browsing history suggested defendant sought out and intended to visit
convenience of the sites with names suggestive of child pornography and the relevance of
reader.)
that evidence outweighed any unfair prejudice.
Decision Under Appeal from the Circuit Court of Kane County, No. 07-CF-2980; the
Review Hon. Timothy Q. Sheldon, Judge, presiding.
Judgment Affirmed.
Counsel on Jennifer B. Hulvat, of Hulvat Law Firm, of Oak Brook, for appellant.
Appeal
Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
Bauer and Marshall M. Stevens, both of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justices Burke and Schostok concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant, Vernor Gumila, was convicted of possession of child
pornography (720 ILCS 5/11-20.1(a)(6) (West 2008)). The physical evidence at trial
consisted of (1) several photographic images forensically extracted from defendant’s
computer, which images defendant did not dispute constituted child pornography; and (2) the
Internet browsing history for defendant’s computer, which showed a history of visiting Web
sites with names suggestive of child pornography. Defendant argues that the latter was
improper other-acts evidence. He also argues that the evidence was insufficient to show that
he knowingly and voluntarily possessed the images discovered on his computer. We reject
both contentions and affirm.
¶2 I. BACKGROUND
¶3 On October 10, 2007, after the police executed a search warrant at the residence of
Shawn Bowlden and seized items in his possession that constituted child pornography, the
police asked defendant, Bowlden’s roommate, for consent to search his camera and
computer. Defendant gave consent, and a forensic analysis of the computer’s hard drive
revealed 13 photographic images that investigators and prosecutors determined were child
pornography. Defendant was charged with 13 counts of child pornography under section 11-
20.1(a)(6) of the Criminal Code of 1961 (Code) (720 ILCS 5/11-20.1(a)(6) (West 2008)), one
count for each image.
¶4 At defendant’s bench trial, the State called several police officers as well as Bowlden.
St. Charles police officer Troy Peacock testified that, on October 10, 2007, he helped execute
a search warrant at 929 Third Street in St. Charles. The subject of the warrant was Bowlden,
who was present with defendant. Peacock informed defendant that the police were there
because Bowlden was suspected of possessing child pornography. The police seized
numerous items of pornography from Bowlden’s bedroom and arrested him. About two
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hours later, Peacock returned to the residence with St. Charles police detective Christie Fry.1
Peacock had been informed that defendant, too, was suspected of possessing child
pornography. Peacock and Fry spoke to defendant and asked for consent to take and search
his camera and computer. Defendant signed a consent form, and Peacock and Fry took
defendant’s camera and computer from his bedroom.
¶5 Bowlden testified that the October 2007 search of his bedroom led to child pornography
charges against him. He pled guilty to the charges and was sentenced to probation, which he
was still serving at the time of his testimony. In October 2007, Bowlden and defendant both
were gymnastics instructors. They roomed together at 929 South Third Street in St. Charles.
Each had his own bedroom and his own computer that he kept there. In October 2007,
Bowlden was addicted to pornography, including child pornography, and used his computer
to view images of pornography on the Internet. Bowlden testified that defendant kept his
bedroom unlocked and had no password protection for his computer. Occasionally, Bowlden
would take his computer into defendant’s bedroom to use his modem for Internet access.
Bowlden, however, never used defendant’s computer.
¶6 Fry and St. Charles deputy police chief Steven Huffman described the events following
defendant’s relinquishment of his camera and computer. Huffman testified that defendant’s
computer was forensically examined by investigators on the afternoon of October 10. Later
that afternoon, the examiners told Huffman that 13 images of child pornography were
recovered from the computer’s hard drive. That evening, Huffman and Fry went to
defendant’s place of work, a gymnastics studio, and arrested him for possession of child
pornography. At the police station, defendant executed a Miranda waiver, following which
Huffman and Fry had a discussion with defendant that fell into two stages. The first was an
unrecorded discussion, or “pre-interview,” the second an audiotaped statement.
¶7 According to Huffman, the unrecorded discussion spanned 30 to 45 minutes. Fry testified
to the specifics of the discussion:
“Q. Do you remember what the Defendant told you during that conversation?
A. Yes, I do.
Q. Can you briefly summarize it?
A. He basically–he told me that he was Shawn Bowlden’s roommate at 929 South
Third Street since about October 2006, and that he was pretty sure that Shawn Bowlden
had not used his computer ever.
***
Q. And what did you ask him or what did he tell you about his own computer usage?
A. He said that on a daily basis he would go onto the Internet to look at pornography,
and for about seven years he said he had been doing that, looking at adult pornography
on his computer, and for about the past five years he had been looking at child
pornography on his computer.
Q. Did you ask him, as it relates to the child pornography, and what sorts of images
1
Fry is also referred to as Christine Widlarz in the record and briefs.
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he was looking for?
A. He said that–I asked him if he was aware that the images he was looking at were
children under the age of 17, and he said that he was. And when I asked him how he
could tell that they were under the age of 17, he said because of their lack of physical
development.
Q. Did you ask him whether or not he was looking for any particular age group
depicted in the images?
A. I asked him what age group he was interested in, and he told me that it was
between 13 and 15 because they were just starting to develop.
Q. Did he tell you how he went about accessing or looking at these images?
A. He went–he said that he went to adult and child pornography websites, and then
he would click on whatever image was interesting to him.
Q. Did he ever say if he would return to these websites?
A. He said he would often return to the websites that he was interested in to revisit
the same pictures that he liked.
Q. At the conclusion of your conversation with him, did he say anything about how
he felt about looking at these images?
A. I asked him if he knew that looking at child abuse images under–you know, child
pornography images, which is kids under the age of 17[,] was illegal, and he said he did
know it was illegal and that it was wrong, and we did ask him if he wanted help with that
problem, and he did state yes.”
¶8 Huffman was asked if either he or Fry “indicated to [defendant in the pre-interview] that
the computer sometimes stores stuff automatically.” Huffman answered, “We may have. I
don’t recall.”
¶9 As for the recorded statement, both Fry and Huffman asked questions, but Huffman was
the principal questioner. Both the recording and a transcript were admitted into evidence. The
recording was played for the trial court but is not in the appellate record. In the transcript,
defendant is first asked about his livelihood. He states that he has been a gymnastics
instructor for about 15 years. He used to coach boys but now coaches only girls. His students
range from age 7 to 18. The questions then turn to defendant’s usage of his home computer,
and he makes the following material statements:
(1) Defendant “start[ed] browsing for adult pornography” when he acquired his
computer about five to seven years ago.
(2) “[E]veryday [sic]” at his home, defendant would “look at pornographic materials
on [his] computer through the [I]nternet.”
(3) “[P]robably everyday [sic]” at his home, defendant would “brows[e] *** for ***
pornographic images or brows[e] for porn on the [I]nternet.”
(4) Asked when he “start[e]d looking at *** pornographic images of of [sic] girls
under the age of 17,” defendant answers that he “[p]robably started running into that stuff
right away.”
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(5) Defendant would “come across images of *** children or girls that [he] kn[e]w
to be under the age of 17,” and even as young as 12.
(6) “[T]hese images were of naked girls under 17.”
(7) Defendant “clearly knew by there [sic] appearance that they were under the age
of 17.”
(8) “When [defendant was] looking at images of girls [he] knew to be *** younger
than 17,” and as young as “12 & 13,” he knew this was “illegal” and “wrong.”
(9) Defendant does not “look for the web sites *** specifically for children under
17.”
(10) Rather, he would “come across these images” by “looking at pictures,” and he
would “click[ ] on” the images to open and view them.2
(11) Defendant never “save[d] the images on [the] hard drive on [his] computer,” but
“assum[ed] that the computer does that on [its] own.”
(12) Defendant would “go[ ] back and look[ ] at the same images more than once,”
because “you run through certain web sites [that] will have the same pictures on [them]
over and over again.”
(13) Defendant would not “specifically go to that web site to view that image again,”
but the image “may *** pop up again.”
(14) Asked “how many times a week would [he] look at *** pornographic images
of children under the age of 17,” he replies, “As long as I run across them[,] so I guess
everyday [sic].”
(15) Defendant has never printed or e-mailed any of the images he views on the
Internet.
(16) He has never “paid *** money for a subscription to any *** pornographic web
sites, adult or child.”
(17) Defendant has “[p]robably less than 100” “pornographic images of girls under
the age of 17 *** on [his] hard drive.”
(18) Defendant has never shared these images on his hard drive with anyone.
(19) Defendant uses America Online (AOL) accounts nal71 and vmyster120.
2
The specific exchange was:
“[Officer]: When you browse on the [I]nternet for these *** images ***[,] explain
to me how that [sic] do you look for the web sites *** specifically for children under 17?
[Defendant]: No.
[Officer]: Explain to me how you would come across these images.
[Defendant]: Umm basically I’m I’m [sic] looking at pictures. Not really looking at
text or anything, just pictures.
[Officer]: O.K. But you click on the images?
[Defendant]: Yes.
[Officer]: To open and to view them?
[Defendant]: Yes.”
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In what follows, we occasionally refer to portions of the recorded statement by the above
numbers.
¶ 10 Huffman testified that the subject of the recorded statement then turned to a young girl
named Shelby, pictures of whom were found on defendant’s hard drive. Defendant described
the photos to Huffman as showing Shelby in a bathing suit at the dunes in Michigan in 2005.
Defendant remarked that “we make a trip there every year” (emphasis added). (Defendant
was not asked to explain what he meant by “we.”) Defendant believed that Shelby was 14
years old when he took the photos. Defendant took the photos because he was looking “for
sexy poses to use for a collage.” Defendant has made “sexy collages” of other “kids.” The
photos are not for his “personal use,” though he keeps copies of them. Defendant claimed
that Shelby’s parents were aware of the photos and that he gave them a disk containing them.
¶ 11 In his testimony, Huffman described the photos of Shelby. One photo showed her “on
her hands and knees with her butt extended towards the camera, with her looking back at the
camera.” There were other photos of her “bending over for the camera in a provocative way.”
Huffman testified that, after the State’s Attorney’s office reviewed the photos, it determined
that they were not illegal.
¶ 12 Both Huffman and Fry testified regarding the content of, and relationship between, the
recorded and unrecorded statements. As to the content of the recorded statement, Huffman
acknowledged that the phrase “come across,” which appears in remarks (5) and (10), was his
phrase, not defendant’s. Huffman agreed that the phrase “basically means that you can be
looking for things that are legal to look at and you might see something that’s illegal in the
course of that.” Regarding remarks (12) and (13), Huffman agreed that to view a “pop up”
image is “different from saving an image or knowing an image is on your hard drive and
going back and relocating that image over and over again.” By “pop up,” Huffman took
defendant to mean that “the picture was more of a random kind of thing, that he would come
across pictures and he would recognize them as being something he had seen before.”
Huffman recognized that, when defendant was asked (to use defense counsel’s paraphrase)
“how often he would look at or see images of child pornography or of people under the age
of 17,” defendant “basically” said, “[O]nly whenever I run across it,” and he “never told
[Huffman] [that] he was out there looking for it.”
¶ 13 Huffman testified that in taking the recorded statement it was important to ask defendant
to reaffirm “certain things” that he said in the unrecorded statement. Huffman believed that
“all things that were important in terms of [his] investigation are contained in the [recorded
statement].”
¶ 14 Huffman admitted that he never confronted defendant with the photos of child
pornography that were taken from his hard drive, even though they were available on the
night of October 10, 2007, during the recorded and unrecorded statements. Huffman also
admitted that he never asked defendant if he found images of child pornography sexually
gratifying, though this would have been a “relevant consideration” in the investigation.
¶ 15 Fry also testified to the content of the two statements. Fry stated that the aim of engaging
a suspect in an unrecorded discussion before taking any recorded statement is to “[m]ake sure
that [the suspect has] his story straight and [that] he doesn’t go back and forth.” She
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acknowledged, however, that the following remarks were in defendant’s unrecorded
statement but not in his recorded statement: (A) he has been looking at child pornography
on the Internet for the past five years; (B) he would often return to Web sites to view the
same images; (C) he was attracted to children between the ages of 13 and 15 because they
were just starting to develop; and (D) he could tell from their lack of development that
children were under the age of 17. Fry agreed that item (C) would have been “a critical piece
of information” to include in the recorded statement. (She was not asked about the
importance of items (A), (B), and (D).) Fry acknowledged that she was present during the
recorded statement and could have asked questions on any points that she believed should
have been addressed. Asked why she did not ask defendant to reconfirm points (A) through
(D), Fry explained that suspects speak more freely when they know that they are not being
recorded. For example, in the recorded statement, defendant’s answers were “shorter” and
he eventually became defensive and less cooperative. Fry was then asked why the police
would ever record an interview with a suspect. She answered, “You have to ask [Huffman]
about that. That’s protocol.”
¶ 16 As to police interrogations generally, Fry acknowledged that one police interview tactic
is to initially “minimize” the conduct under investigation and to “soften it up a little bit so
the suspect might think that they’re less culpable.” Fry denied, however, that the goal of an
interrogation is to obtain a confession rather than to find the truth.
¶ 17 The State’s final witness was Du Page County sheriff’s deputy David Sand, who testified
as an expert in computer forensic examination. Sand stated that the St. Charles police had
asked him to examine the hard drive of defendant’s computer. Sand recovered from the hard
drive 13 files, each of which contained a single image of what Sand ascertained was child
pornography. Sand recovered nine files from the allocated space within the hard drive and
four files from the unallocated space.
¶ 18 Sand explained that the allocated space within a hard drive contains files that are
accessible to the user through a computer’s file-browsing utility, such as Windows Explorer.
Every file in allocated space contains data that tells the name of the file, the date it was
created, and the file path describing where the file is situated on the hard drive. The
unallocated space of a hard drive is space “where there is not a specific file that is available
for use by the operating system.” Files in allocated space remain there until deleted, at which
point they are transferred to unallocated space. Sand explained that unallocated space is not
reserved for any particular file; it consists of space that contains no data at all as well as
space occupied by data from deleted files. Unallocated space is automatically overwritten as
the computer needs more allocated space. Sand testified that once a file in allocated space
is deleted and transferred to unallocated space, it can no longer be located with a standard
file-browsing utility; rather, specialized recovery software is needed. Since data in
unallocated space might be overwritten at any time as the need arises, a file in unallocated
space can be partially or wholly unrecoverable. Files that exist in unallocated space are
known as “lost” or “orphan” files. A lost file can still retain its name, creation date, and file
path.
¶ 19 Sand testified that, using specialized recovery software, he recovered from the
unallocated space of defendant’s hard drive four lost files, each containing an image of child
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pornography. Each had a creation date of January 14, 2007. Sand testified that he did not, nor
was he asked to, examine whether defendant’s computer had specialized software for the
recovery of lost files.
¶ 20 Sand further testified that all nine files that he recovered from the allocated space within
defendant’s hard drive were contained in a folder reserved for temporary internet files (TIFs).
Sand explained that, when a user visits a Web page that displays an image or text, the
functions available to the user include (1) saving that image or text to the location of the
user’s choice on the computer’s hard drive; (2) saving it to external media, such as a CD
ROM; (3) printing it; or (4) e-mailing it to others. In addition to the copy that a user can
make on his own initiative, the computer automatically stores a copy of the image or text as
a TIF. No user action is necessary for the creation of a TIF. The folder where TIFs are kept
is also known as the “web cache.” Sand explained that the storage of images or text from a
previously viewed Web page enables the computer to load the page more quickly when it is
revisited. Also, TIFs permit the user to view Web site images or text without having to
access the Internet. The user can locate the TIF folder or web cache with a standard file-
browsing utility, like Windows Explorer. Sand explained that, once the user locates the
desired file within the TIF folder, he can perform any of the functions he could have
performed when the file was first loaded on the computer screen (e.g., save to another
location, print, or e-mail). The nine TIFs of child pornography that Sand recovered had
creation dates ranging from July 9, 2006, to October 10, 2007 (the single TIF from October
10, 2007, the date that defendant was arrested, had a creation time of 9:58 a.m.).
¶ 21 Sand admitted on cross-examination that he was unable to ascertain who was using
defendant’s computer when the 13 pornographic images were stored on the hard drive.
¶ 22 All 13 files recovered from defendant’s computer were admitted into evidence with no
defense objection. The defense did object, however, to evidence of the Internet browsing
history on defendant’s computer. This history consisted of “Favorites” and “Cookies.”
¶ 23 Sand explained that he recovered “Favorites” from the AOL accounts nal71 and
vmyster120, both of which defendant, in his recorded statement, admitted using. Sand
explained that the Favorites option on Internet-browsing software permits the user to save
the addresses of preferred Web sites. When the user wishes to visit one of those sites, he
need only click on the Favorites tab designated for that site, and the browser will go directly
there. Thus, the Favorite acts as an Internet shortcut, eliminating the need for the user to
search for the Web site again or type its name into the browser’s address bar. Sand testified
that, when he reviewed the Favorites in defendant’s AOL accounts, he saw Web sites with
names containing “terms or words that are associated with child pornography or a sexual
interest in children,” such as “Lolita” and “preteen.”
¶ 24 Some of the Favorites admitted into evidence are in the form of Web addresses such as
“LittleVirginz.com.” Others are titles or descriptors such as “Petite Teen Girls,” “Teen
Naked Chicks, Teen Hot Sex,” and “Welcome to Teen Cam Girls Site.” Sand acknowledged
that he did not attempt to link the Favorites in defendant’s AOL accounts to the 13
pornographic images recovered from defendant’s hard drive. Sand also admitted that, though
the Favorites were associated with defendant’s AOL accounts, Sand could not determine for
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certain who was accessing an account when any given Favorite was created.
¶ 25 Sand further explained that a “Cookie” consists of data that a Web site sends through its
server to the browsing computer, where the data is stored in the TIF folder. Cookies are
saved automatically, without any action by the user. Web sites use Cookies to gather
information about the browsing history of the computer. Moreover, the Cookie itself contains
information, such as the date it was created, the Web site that created it, and the number of
times the site was visited by that computer. Sand recovered from defendant’s TIF folder
numerous Cookies from Web sites with names containing terms that, in Sand’s experience,
are associated with child pornography. Sand identified “preteen” and “Lolita” as examples
of such terms.
¶ 26 The Cookies found by Sand recorded the number of times that defendant’s computer
visited the sites that originally sent the Cookies. Some of the more frequently visited sites
were preteen.newpussypics.com (visited 24 times), lolitalovers.net (35 times),
sexyschoolgirls.net (55 times), and lolitadolls.info (85 times). Another Cookie was
associated with the site lolitampegs.com/st/, which was visited 31 times. Sand explained that
an “mpeg” is a video file.
¶ 27 Unlike the Favorites, which were associated with defendant’s AOL accounts, the Cookies
were associated only with defendant’s computer, and Sand admitted that he could not
determine who was using the computer either when a particular Cookie was created or when
a Web site that had left a Cookie was revisited. Also, as with the Favorites, Sand did not
attempt to link the Cookies with any of the 13 images recovered from defendant’s computer.
¶ 28 Based on this absence of linkage, defendant argued that the Cookies and Favorites were
irrelevant and inadmissible. The trial court overruled the objection and admitted the Cookies
and Favorites. The court found, without elaboration, that the evidence was relevant.
¶ 29 At the close of the State’s evidence, the defense moved for a directed finding on the
ground that the State had failed to prove that defendant knowingly possessed any of the
images. In opposing that motion, the State argued that defendant’s Cookies and Favorites,
associated as they were with Web sites of child pornography, indicated that he was “the type
of individual who is out there seeking this type of material” and, therefore, that the presence
of child pornography on his hard drive was not fortuitous. The trial court denied the motion
for a directed finding. Later, the State incorporated into its closing argument the remarks it
had made in opposing the motion for a directed finding.
¶ 30 The trial court found defendant guilty on the counts corresponding to the nine TIF
images, but found him not guilty on the counts corresponding to the four lost files. The court
discussed extensively two recent cases on section 11-20.1(a)(6) of the Code: People v.
Josephitis, 394 Ill. App. 3d 293 (2009), and People v. Scolaro, 391 Ill. App. 3d 671 (2009).
The court found both cases “on all fours [with] the case at bar.” Citing the definition of
“possession” in the case law and the definition of “voluntary” possession in section 11-
20.1(b)(5) of the Code (720 ILCS 5/11-20.1(b)(5) (West 2008)), the court said:
“The Court has viewed the [C]ookies and the Court has viewed the web pages for which
the Defendant reached out, and they are replete with websites of child pornography.
The Court has seen the images that were brought up on Defendant’s computer, and
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the Court has listened carefully to the Defendant’s confession that he did have child
pornography.
The Court finds that in the [TIF] folders, Counts 4, 6, 7, 8, 9, 10, 11, 12, 13, there
was an ability to retrieve those for viewing, but on Counts 1, 2, 3, and 5, those are lost
files and that same ability was not present.”
¶ 31 Defendant filed this timely appeal.
¶ 32 II. ANALYSIS
¶ 33 Defendant’s two arguments on appeal are, first, that the Cookies and Favorites were
improper propensity evidence and, second, that the State failed to prove that he knowingly
and voluntarily possessed child pornography under sections 11-20.1(a)(6) and (b)(5) of the
Code. There are two important evidentiary points that defendant does not dispute: first, that
the nine photographic images for which he was convicted were child pornography as defined
by section 11-20.1(a)(6), and, second, that the Cookies and Favorites were associated with
Web sites depicting child pornography.
¶ 34 A. Admission of Cookies and Favorites
¶ 35 We first address defendant’s claim that the trial court erred by admitting evidence of the
Cookies and Favorites found on his hard drive. Defendant argues that, because the State
never established that the images of child pornography on his hard drive originated from the
Web sites connected with the Cookies and Favorites, the sole purpose of the evidence was
to show that defendant was disposed to seeking Web sites of child pornography. We
disagree.
¶ 36 Our analysis begins with a matter of procedure. Defendant admits that he did not preserve
this argument for appeal, because, while he raised it at trial, he did not reassert it in a posttrial
motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (to preserve an issue for appeal,
defendant must both object at trial and raise the issue in a posttrial motion). He urges us to
reach the argument under the plain-error doctrine, which bypasses normal forfeiture
principles and allows a reviewing court to consider unpreserved claims of error in specific
circumstances. See People v. Thompson, 238 Ill. 2d 598, 613 (2010); Ill. S. Ct. R. 615(a) (eff.
Jan. 1, 1967) (“Any error, defect, irregularity, or variance which does not affect substantial
rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the trial court.”). Plain-error review is
permitted when:
“(1) a clear or obvious error occurred and the evidence is so closely balanced that the
error alone threatened to tip the scales of justice against the defendant, regardless of the
seriousness of the error, or (2) a clear or obvious error occurred and that error is so
serious that it affected the fairness of the defendant’s trial and challenged the integrity
of the judicial process, regardless of the closeness of the evidence.” People v. Sargent,
239 Ill. 2d 166, 189 (2010).
“The initial step in conducting plain-error analysis is to determine whether error occurred at
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all.” People v. Walker, 232 Ill. 2d 113, 124 (2009). This requires a substantive review of the
issue. Id. at 125. Reaching the substance of defendant’s argument, we hold that the admission
of the Cookies and Favorites was not error.
¶ 37 The common-law rule is that evidence of crimes, wrongs, or acts by the defendant aside
from the crime(s) for which he is being tried is inadmissible if the prior conduct is relevant
solely to establish the defendant’s propensity to commit an offense such as the one charged.
People v. Bobo, 375 Ill. App. 3d 966, 971 (2007). Evidence of other crimes or acts is
admissible for a host of purposes other than to show propensity. People v. Moser, 356 Ill.
App. 3d 900, 913 (2005). Such evidence may permissibly show:
“ ‘modus operandi, motive, knowledge, intent, absence of mistake or accident,
defendant’s state of mind, absence of an innocent mind frame or the presence of criminal
intent, circumstances or context of defendant’s arrest, placement of defendant in
proximity to the time and place of the crime, identification of the weapon used in a
crime, consciousness of guilt, to show a common design, scheme or plan, circumstances
of a crime charged that would otherwise be unclear, whether a crime charged was
actually committed, opportunity or preparation, a defendant’s dislike or attitude toward
the victim, to explain an otherwise implausible fact relating to the crime charged, to
contradict on rebuttal a defendant’s denials, to disprove a defense of entrapment and to
disprove an alibi defense.’ ” Id. (quoting People v. Millighan, 265 Ill. App. 3d 967, 972-
73 (1994)).
Even other-acts evidence that is relevant for a proper purpose is inadmissible if its probative
value is substantially outweighed by the danger of unfair prejudice. People v. Walker, 211
Ill. 2d 317, 337-38 (2004). Whether to admit other-acts evidence lies within the sound
discretion of the trial court. People v. Robinson, 167 Ill. 2d 53, 63 (1995). An abuse of
discretion occurs only when the ruling is arbitrary, fanciful, or unreasonable. People v. Illgen,
145 Ill. 2d 353, 364 (1991).
¶ 38 The State, arguing strictly under the common-law rule,3 asserts that the Cookies and
Favorites were admissible to show intent. We agree. To explain, we must examine the
elements of possession of child pornography as they are defined in section 11-20.1(a)(6) of
the Code, which states:
“(a) A person commits the offense of child pornography who:
3
The State does not cite section 115-7.3 of the Code of Criminal Procedure of 1963 (725
ILCS 5/115-7.3 (West 2008)), which partly supersedes the common-law rule by allowing admission
of propensity evidence in certain prosecutions. Among them are prosecutions for child pornography
(725 ILCS 5/115-7.3(a)(1) (West 2008)).
Notably, Rule 404 of the Illinois Rules of Evidence (Ill. R. Evid. 404 (eff. Jan. 1, 2011))
codifies the common-law rule as well as several statutory provisions, including section 115-7.3.
While the common-law and statutory standards that Rule 404 was designed to embody were in force
when defendant was tried, Rule 404 itself did not go into effect until after defendant’s trial. See
People v. Villa, 2011 IL 110777, ¶ 32 (Illinois Rules of Evidence not applicable because the
defendant was tried before the effective date of the rules).
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***
(6) with knowledge of the nature or content thereof, possesses any film,
videotape, photograph or other similar visual reproduction or depiction by computer
of any child *** whom the person knows or reasonably should know to be under the
age of 18 ***, engaged in any activity described in subparagraphs (i) through (vii)
of paragraph (1) of this subsection[.]” 720 ILCS 5/11-20.1(a)(6) (West 2008).
Section 11-20.1(b)(5) of the Code (720 ILCS 5/11-20.1(b)(5) (West 2008)) incorporates a
voluntariness component into the element of possession:
“The charge of child pornography does not apply to a person who does not voluntarily
possess a film, videotape, or visual reproduction or depiction by a computer in which
child pornography is depicted. Possession is voluntary if the defendant knowingly
procures or receives a film, videotape, or visual reproduction or depiction for a sufficient
time to be able to terminate his or her possession.”
¶ 39 Since the Code does not define “possess,” courts construing the meaning of possessory
elements in crimes under the Code have often consulted Black’s Law Dictionary, because
“[i]n determining the meaning of undefined terms in a statute, a court may turn to the
dictionary for assistance” (Alvarez v. Pappas, 229 Ill. 2d 217, 225 (2008)). See People v.
Ward, 215 Ill. 2d 317, 325 (2005) (consulting Black’s Law Dictionary to construe the
possessory element of the crime of distributing harmful materials to a minor (720 ILCS
5/11–21 (West 2000))); Josephitis, 394 Ill. App. 3d at 299 (consulting Black’s Law
Dictionary to construe the possessory element of child pornography); Scolaro, 391 Ill. App.
3d at 679 (same). Black’s Law Dictionary defines “possession” as “[t]he fact of having or
holding property in one’s power; the exercise of dominion over property.” Black’s Law
Dictionary 1201 (8th ed. 2004).
¶ 40 Notably, both Scolaro and Josephitis concentrated on the meaning of “possess” in
sections 11-20.1(a)(6) and (b)(5) without addressing how, if at all, that meaning is modified
by the terms “procures” and “receives” in section 11-20.1(b)(5). Neither term appears to be
defined in the Code. The primary meaning of “procurement” in Black’s Law Dictionary is
“the act of getting or obtaining something.” Black’s Law Dictionary 1244 (8th ed. 2004).
Black’s Law Dictionary does not define “receive,” but another source states its two primary
definitions as “to take possession or delivery of” and to “knowingly accept.” Webster’s Third
New International Dictionary 1894 (1993). As we read subsections (a)(6) and (b)(5),
“receives” and “procures” do not affect the definition of “possess” but, rather, were included
to reinforce that possession can be achieved by active (“procures”) or passive (“receives”)
means.
¶ 41 Borrowing concepts from drugs and weapons cases, the Josephitis court held that
possession of child pornography can be actual or constructive. Actual possession “does not
require present personal touching of the illicit material but, rather, present personal dominion
over it.” People v. Schmalz, 194 Ill. 2d 75, 82 (2000). “Constructive possession exists
without actual personal present dominion over [contraband], but with an intent and capability
to maintain control and dominion.” People v. Frieberg, 147 Ill. 2d 326, 361 (1992). Mere
presence in the vicinity of contraband cannot establish constructive possession. People v.
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Scott, 367 Ill. App. 3d 283, 285 (2006).4 Josephitis did not expound on what, generally, will
constitute actual or constructive possession of electronic images of child pornography.
¶ 42 Here, the Cookies and Favorites were admissible for a purpose other than to show
defendant’s propensity to commit a crime such as possession of child pornography. The
defense at trial was that defendant did not seek out the images of child pornography saved
as TIFs but, rather, those images appeared by happenstance on his computer screen as he
browsed for adult pornography. The Cookies and Favorites, however, suggest that defendant
sought out, intended to revisit, and indeed did revisit sites with names and descriptions
suggestive of child pornography. Other crimes or acts are admissible to show, inter alia,
intent, knowledge, and absence of mistake or accident. Defendant’s demonstrated interest
in child pornography tended to show that his accessing of illicit images was knowing and
voluntary rather than inadvertent.
¶ 43 To explain further, we discuss in detail Josephitis and Scolaro. Both cases are from the
First District Appellate Court and, so, are not binding on this court. We follow them because
their analyses are sound.
¶ 44 In both Josephitis and Scolaro, images of child pornography were discovered in the TIF
folder or web cache of the defendant’s hard drive, and there was expert testimony that the
images would have been saved automatically as TIFs when the Web pages that displayed
them were loaded onto the computer screen. Josephitis, 394 Ill. App. 3d at 296-97; Scolaro,
391 Ill. App. 3d at 674, 676. Each defendant admitted to the police that he subscribed to Web
sites that displayed images of child pornography, and that he visited the sites and viewed
images of child pornography. Josephitis, 394 Ill. App. 3d at 296; Scolaro, 391 Ill. App. 3d
at 673-74. The defendant in Josephitis further admitted that he not only viewed but also
“ ‘stored’ ” images from the child-pornography Web sites. Josephitis, 394 Ill. App. 3d at 296.
The defendant in Scolaro admitted not only that he subscribed to and visited sites of child
pornography, but also that he received images of “young boys, fully naked” from individuals
in chat rooms, and that he sometimes sent such pictures to others. Scolaro, 391 Ill. App. 3d
at 674.
¶ 45 Also, in both Josephitis and Scolaro, the police showed the defendant the TIF images of
child pornography that were recovered from his computer, and the defendant identified them
as being among the images he previously viewed on the Web sites of child pornography to
which he subscribed. Josephitis, 394 Ill. App. 3d at 296; Scolaro, 391 Ill. App. 3d at 674.
¶ 46 Each defendant claimed, however, that there was no evidence that he was aware that his
computer was automatically storing copies of Internet images as they loaded on the screen,
or that he otherwise had knowledge of the TIF images. Josephitis, 394 Ill. App. 3d at 300-01;
4
These principles are summarized in Illinois Pattern Jury Instructions, Criminal, No. 4.16
(4th ed. 2000):
“Possession may be actual or constructive. A person has actual possession when he
has immediate and exclusive control over a thing. A person has constructive possession
when he lacks actual possession of a thing but he has both the power and the intention to
exercise control over a thing [either directly or through another person].”
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Scolaro, 391 Ill. App. 3d at 677. The court in Josephitis acknowledged that “the mere
presence of images or files in the cache is not sufficient to support a finding of possession.”
Josephitis, 394 Ill. App. 3d at 306. Similarly, the court in Scolaro held the State to its burden
of “prov[ing] that defendant knowingly possessed child pornography in the cache folder of
his computer.” Scolaro, 391 Ill. App. 3d at 676.
¶ 47 A careful reading of Josephitis and Scolaro reveals a distinction in how the presence of
a TIF image can prove possession of child pornography. To demonstrate this, we set forth
the core portions of the court’s analysis in each case. First, the court in Scolaro reasoned:
“Here the record shows that the child pornography was saved as temporary files on
defendant’s home computer. Defendant ‘reached out’ for images by subscribing to Web
sites that contained images of child pornography. Defendant admitted to forwarding
images to others and receiving images of fully naked boys. Even if there had been no
indication in the record that defendant had copied, printed, e-mailed, or sent images to
others, defendant had the ability to do so when he was viewing the downloaded Web
pages. [Citation.]” Scolaro, 391 Ill. App. 3d at 680.
The reasoning in Josephitis was analogous:
“[T]he mere presence of images or files in the cache is not sufficient to support a finding
of possession. However, these files, even absent knowledge of their presence or how to
control them may be proper evidence of past possession. With analysis and testimony of
a forensic expert, it may be established that a defendant viewed images at a certain time
and date. In this case testimony and evidence were provided that defendant actively
sought out the illicit Web sites, paid for access, maintained the Web sites among his
‘favorites,’ and viewed numerous photos of child pornography in the three weeks leading
to his arrest. The evidence also demonstrated that defendant had the opportunity to e-
mail, save, print, copy, or otherwise manipulate the images while he viewed them.
*** [E]vidence of an extensive search or paying for access and viewing images on
a computer establishes both knowledge and dominion and control to support a possession
finding. Based on the testimony at trial, defendant actively sought out and paid for access
to child pornography Web sites and viewed over 700 images that were found in the cache
files of defendant’s computer with various origin dates from two months prior up to the
date defendant’s computer was confiscated. This is sufficient to show that defendant had
knowledge of the contents and possession for a period long enough to terminate
possession.” (Emphasis added.) Josephitis, 394 Ill. App. 3d at 306.
¶ 48 Josephitis and Scolaro distinguish between possession of a TIF image and “past
possession” (Josephitis’s phrase) of the original image as it appeared to the defendant on his
computer screen, and of which the TIF image is a copy. Both theories of possession began
with the TIF images. First, the TIFs served as proof that the defendant viewed the original
images. The inference was enabled by evidence that the TIF folder consisted of copies of
Internet images stored automatically as the images were loaded onto the defendant’s
computer screen. As Josephitis and Scolaro show, however, even if the images did at one
time appear on the defendant’s computer screen, the State still must prove that the defendant
knowingly and voluntarily possessed the images. The element of knowledge in sections 11-
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20.1(a)(6) and (b)(5) requires the State to demonstrate that the images did not appear on the
screen by accident but, rather, were sought out by the defendant because of their content.
¶ 49 In Josephitis and Scolaro, there was both direct and circumstantial evidence of
knowledge. The direct evidence consisted of the fact that, when the police showed the
defendant the TIF images that were the basis of the criminal charges, the defendant identified
them as among the images that he had viewed in visiting the Web sites of child pornography
to which he subscribed. Josephitis, 394 Ill. App. 3d at 296; Scolaro, 391 Ill. App. 3d at 674.
The circumstantial evidence in the cases was diverse. First, in each case the defendant
admitted that he subscribed to, and visited, Web sites of child pornography, where he viewed
images. Josephitis, 394 Ill. App. 3d at 295-96; Scolaro, 391 Ill. App. 3d at 673-74. The
defendant in Josephitis further admitted that he “ ‘stored’ ” images viewed on the Web sites.
Josephitis, 394 Ill. App. 3d at 296. The defendant in Scolaro also admitted that he had
exchanged, over the Internet, images of “young boys, fully naked.” Scolaro, 391 Ill. App. 3d
at 674.
¶ 50 As for the mechanics of the possession itself, the defendants in both Josephitis and
Scolaro argued that the viewing of an Internet image cannot alone constitute possession
under sections 11-20-1(a)(6) and (b)(5), but that there must also be evidence that the viewer
exercised dominion or control over the image by, e.g., copying, printing, e-mailing, or saving
it. See Josephitis, 394 Ill. App. 3d at 301; Scolaro, 391 Ill. App. 3d at 676. Disagreeing, both
courts deemed it sufficient that the defendant had the “opportunity” (Josephitis, 394 Ill. App.
3d at 306) or “ability” (Scolaro, 391 Ill. App. 3d at 680) to exercise those functions while
viewing the image. The courts were not explicit, but both appeared to hold that the
possession was constructive, not actual.
¶ 51 Section 11-20.1(b)(5) requires that possession of the original image be voluntary as well
as knowing. The element of voluntariness is satisfied by proof that the knowing procurement
or reception was “for a sufficient time to be able to terminate *** possession.” 720 ILCS
5/11-20.1(b)(5) (West 2008). Thus, where the only proof of possession is that the defendant
viewed the image while he had the ability (unexercised) to print it, save it, etc., the defendant
will have had to linger over the original image longer than necessary to terminate his
possession, as by closing the Web site.
¶ 52 TIF images not only can serve as indirect evidence of possession of the original images,
but can themselves be the basis for liability. Scolaro held that the defendant knowingly and
voluntarily possessed the TIF images themselves. The court cited the presence of specialized
file-elimination software as evidence that the defendant was aware that TIFs of pornographic
images were automatically created as he viewed them on Web sites. Scolaro, 391 Ill. App.
3d at 680. In Josephitis, the court appeared to agree with the defendant that there was “no
evidence that he knew that the pornographic images were automatically saved on his
computer,” and therefore the defendant was liable only for “past possession” of the original
images. Josephitis, 394 Ill. App. 3d at 301, 306. Josephitis and Scolaro together demonstrate
that, though a TIF can serve as proof that the defendant viewed the original image, it is
analytically possible for a defendant to knowingly and voluntarily possess the original image
without knowingly and voluntarily possessing the TIF.
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¶ 53 Defendant is correct that the State did not specifically link the Cookies and Favorites to
any of the nine TIF images on which defendant’s convictions were based. Neither, however,
did the State in Josephitis or Scolaro connect any of the TIF images to the Web sites that the
defendants admitted visiting, but the courts nonetheless found the defendants’ browsing
histories relevant to show that the viewing of the original images was not inadvertent, but by
design. See Josephitis, 394 Ill. App. 3d at 306 (“In this case testimony and evidence were
provided that defendant actively sought out the illicit Web sites, paid for access, maintained
the Web sites among his ‘favorites,’ and viewed numerous photos of child pornography in
the three weeks leading to his arrest.”); Scolaro, 391 Ill. App. 3d at 680 (“Defendant ‘reached
out’ for images by subscribing to Web sites that contained images of child pornography.”).
Similarly, here the Cookies and Favorites, which reflected an intense interest in child
pornography, lessened the probability that the nine TIF images were fortuitously present on
defendant’s hard drive.
¶ 54 This case involves relatively new technology, but the rules of evidence that govern here
are of an old vintage. The case law fully establishes that the State may adduce evidence of
the defendant’s proclivities or past conduct in order to prove intent or knowledge in the case
sub judice. See, e.g., Bobo, 375 Ill. App. 3d at 971-72 (proof of the defendant’s apparent foot
fetish allowed to establish intent to gratify himself by manipulating the victim’s foot during
the sexual attack); People v. Hart, 338 Ill. App. 3d 983, 992-93 (2003) (to prove that the
defendant intended to steal a briefcase from a department store, though he had not left the
store before being stopped by store employees, the State was allowed to introduce the
defendant’s prior uncharged theft of a trench coat occurring 12 days before at the same
store); People v. Juarbe, 318 Ill. App. 3d 1040, 1054-55 (2001) (to prove that the defendant
had knowledge of, and intent to deliver, drugs concealed inside the armrest of his car, the
State was allowed to introduce evidence that the residence that the defendant had just left
before being stopped by officers was a “ ‘stash house,’ ” known for drug activity, that the
defendant had visited the house several times in the four months before his stop and arrest,
and that the defendant’s fingerprints were found on drug packaging materials within the
residence); People v. Parrott, 244 Ill. App. 3d 424, 432 (1993) (where the defendant, who
had been committed as a sexually dangerous person, was alleged to have violated the terms
of his conditional release by having unsupervised contact with children or adolescents, and
children testified that the defendant approached them, asked for sex, and produced from a
bag several pictures of nude persons having sex, but the defendant testified that the encounter
was innocent, the State was allowed to introduce evidence of sexually explicit materials
contained in the bag that the defendant was carrying); United States v. Chambers, 642 F.3d
588, 595 (7th Cir. 2011) (in trial for attempted child enticement based on the defendant’s
sexually explicit chat-room discussion with undercover officer and transfer of images of
child pornography to the officer, proper other-acts evidence included (1) the defendant’s
sexually explicit chat-room conversations with other undercover officers, which showed
motive, intent, and absence of mistake; and (2) images of child pornography found on his
computer, which showed “his ability to transport child pornography to [the undercover
agent]” and “his sexual inclination toward children”).
¶ 55 The Cookies and Favorites tended to show that defendant knowingly and voluntarily
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possessed not only the original images, but also the TIFs. Defendant admitted in the recorded
statement that he was aware that his computer automatically saved images as he viewed them
on the Internet. Moreover, defendant’s remark (also in his recorded statement) that he
possessed on his hard drive “probably” fewer than 100 pornographic images of girls younger
than 17 can reasonably be read as an admission to specific knowledge of some prohibited
images on his hard drive. The Cookies and Favorites bolstered these admissions by serving
to explain not only why defendant would have such TIFs on his hard drive in the first
instance, but also why he had not terminated his possession by deleting them.
¶ 56 Defendant argues that a certain remark made by the State below contradicts its present
assertion that the Cookies and Favorites served a purpose other than to show propensity. In
opposing the motion for a directed finding, the State argued as follows (we have italicized
the specific language that defendant identifies):
“So what are some of the things that are on [defendant’s] favorites? What are some
of his Favorite websites? Some of the ones I would point out are petite teen girls, teen
funs, tight delights, petite nympha, young petite nympha and her pretty thumbs
collection, happy teens, Lolita Mpegs. And this is a very important one. We heard [Sand]
testify that Lolita is a term specifically associated with child pornography, and that Mpeg
was a description of a video file.
Now, I know that none of the charged images are movie files, but it’s important. You
know, it goes back to Josephitis and Scolaro, we have to prove that he specifically sought
out the prohibited images. And someone who has Lolita Mpegs on their Favorites is the
type of individual who is out there seeking this type of material.” (Emphasis added.)
Defendant construes the State’s phrase “type of individual” as an admission that the evidence
was relevant only to show propensity. See People v. Donoho, 204 Ill. 2d 159, 170 (2003) (the
risk associated with other-acts evidence is that the fact finder will convict the defendant
simply because he is “a bad person deserving punishment”). The context, however, shows
that the State was using the Cookies and Favorites to prove intent, namely, that the TIF
images were not present by accident but, rather, were “specifically sought out” by defendant.
Moreover, this was a bench trial, so even if the State offered the Cookies and Favorites for
an improper purpose, we would conclude, because there is no indication to the contrary, that
the trial court considered the Cookies and Favorites only for a proper purpose. See People
v. Groel, 2012 IL App (3d) 090595, ¶ 43 (reviewing court presumes that the trial court
followed the law unless the record shows otherwise). In any event, we may affirm the
admission of evidence on any basis appearing in the record, regardless of whether it was
relied on by the trial court. Donaldson v. Central Illinois Public Service Co., 313 Ill. App.
3d 1061, 1075 (2000). We evaluate the Cookies and Favorites based on their objective
relevance, not the relevance accorded them by the State or even the trial court.
¶ 57 Finally, we recognize that, even if other-acts evidence is relevant for a proper purpose,
it must be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice. Defendant, however, does not argue under this standard until his reply brief, where
again he seeks to establish that the State itself believed that defendant’s browsing history was
mere propensity evidence. Again, this argument fails. Furthermore, it is manifest that the
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relevance of the Cookies and Favorites far surpassed any potential for unfair prejudice.
¶ 58 We conclude that the trial court did not err in admitting the Cookies and Favorites. Since
there was no error, there can be no plain error. People v. Bannister, 232 Ill. 2d 52, 79 (2008).
¶ 59 B. Sufficiency of the Evidence
¶ 60 Defendant’s second and final argument on appeal is that the evidence was inadequate to
establish his guilt. We disagree.
¶ 61 A challenge to the sufficiency of the evidence in a criminal trial requires us to determine
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the defendant guilty beyond a reasonable doubt. People
v. Wheeler, 226 Ill. 2d 92, 114 (2007). We will reverse a criminal conviction only if the
evidence was so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt
of the defendant’s guilt. People v. Rowell, 229 Ill. 2d 82, 98 (2008).
¶ 62 Defendant questions, first, the reliability of the unrecorded statement as described in
Fry’s testimony. He submits that the incriminatory remarks it contains were the product of
“extensive leading and suggestiveness.” Defendant, however, does not attempt to identify
any specific instance of a suggestive or leading question, but relies on conjecture alone. Our
own review of the statement reveals no hint that the officers suggested particular language
to defendant.
¶ 63 Defendant further asserts that the recorded statement is “conveniently missing critical
elements and alleged admissions” that were included in his unrecorded statement, such as
that he sought out Web sites of pornography involving children within a certain age range
(ages 13 to 15), that he would “click on whatever image was interesting to him,” and that he
would return to the Web sites “that he was interested in to revisit the same pictures he liked.”
Defendant asserts that it is “highly suspect” that his recorded statement contains no
comparable admissions. Defendant also finds it significant that the State never asked
Huffman to corroborate Fry’s testimony regarding the unrecorded statement. Lastly,
defendant claims that the trial court failed to distinguish between the recorded and
unrecorded statements in its ruling, but referred to them collectively as defendant’s
“confession.”
¶ 64 On the last point, we note that defense counsel did, in fact, identify for the trial court the
disparities between the statements, and argued that the unrecorded statement was unreliable.
Evidently, the trial court tacitly rejected this argument. Defendant’s remaining points all
touch on the soundness of the court’s credibility determination. The court below was in a far
better position to observe the witnesses and assess their believability. Wheeler, 226 Ill. 2d
at 114. Defendant has identified no point on which deference to the trial court is
inappropriate. Moreover, as we explain below, defendant’s recorded statement contains
sufficiently incriminatory admissions to support, together with the Favorites and Cookies,
his conviction of possession of child pornography.
¶ 65 Defendant next maintains that the evidence in this case did not approach the strength of
the State’s proof in Josephitis and Scolaro. There are factual differences between this case
and those authorities, but they are not decisive. As a threshold matter, there was sufficient
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evidence to exclude the possibility that the Cookies, Favorites, and nine TIF images of child
pornography were attributable to some user other than defendant. The Favorites were
associated with defendant’s password-protected AOL accounts. As for the Cookies and the
TIF images, the only other potential user who could have been responsible for them was
Bowlden, but he testified that he owned his own computer and never used defendant’s.
Defendant produced no evidence challenging Bowlden’s testimony.
¶ 66 We proceed, then, from the well-grounded premise that defendant was the sole user of
his computer when the nine TIF images of child pornography were saved to his web cache.
As Josephitis and Scolaro demonstrate, a TIF image of child pornography can be the basis
of liability for possession of the TIF image, the original image, or both, but in all cases the
possession must be both knowing and voluntary. To recapitulate our analysis of the
governing law (supra ¶¶ 44-54), a defendant who knowingly views an Internet image of child
pornography while aware of the automatic caching of Internet images, and who retains the
TIF image longer than is necessary to terminate possession, is liable for possession of the TIF
image itself.5 Alternatively, if the defendant knowingly views an Internet image of child
pornography while unaware of the TIF function, but, with the ability to save, copy, print, e-
mail, or otherwise manipulate the image, views it longer than is necessary to terminate
possession of it, the defendant is liable for possession of the original image. For possession
of the TIF or the original image to be knowing, the defendant must have searched out or
received the original image because of its content. That the image was viewed by design can
be proved by direct or circumstantial evidence.
¶ 67 Here, the trial court found defendant guilty on the counts corresponding to the nine TIF
images, because defendant was able to “retrieve the [TIFs] for viewing.” The court found
defendant not guilty of possession of the lost files, because “that same ability was not
present.” Evidently, the court’s criterion was whether defendant could access the images of
child pornography at the time of his arrest. The TIF images met this criterion, but the original
images and lost files did not. Our review, however, “is of the trial court’s judgment, not its
reasoning,” and so “the trial court’s judgment may be sustained for any appropriate reason
regardless of whether the trial court relied on those grounds and regardless of whether the
trial court’s reasoning was correct.” People v. Johnson, 231 Ill. App. 3d 412, 419 (1992). As
our preceding discussion makes clear, the trial court’s view of possession was too narrow,
as TIF images can serve as evidence of past possession of original images that were no
longer accessible to the defendant at the time of his arrest.
¶ 68 Here there was sufficient evidence that defendant possessed both the TIFs and the
original images to which the TIFs corresponded. Defendant, as we previously discussed,
questions the reliability of the unrecorded statement. We therefore begin our discussion with
the recorded statement and hold that it, combined with the Cookies and Favorites, contains
sufficient evidence that defendant knowingly and voluntarily possessed child pornography.
First, the trial court may well have found incredible defendant’s claims that he would simply
5
Conceivably, a defendant can become aware of a TIF without having viewed the original
image.
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happen upon images of child pornography while browsing for adult pornography and that,
although he would “go[ ] back and look[ ] at the same images [of child pornography] more
than once,” the only reason he was successful in seeing the same images again was that they
would “pop up” again.
¶ 69 Second, regardless of how defendant came across images of child pornography, he
admitted that he would “click on” such images in order to “open” (presumably, enlarge) them
for better viewing. Thus, defendant went beyond a mere glance, apparently focusing his
attention on images of child pornography for their content. That defendant would enjoy such
images is confirmed by the Cookies and Favorites, according to which defendant not only
visited numerous different Web sites of child pornography, some upwards of 100 times, but
also designated several as preferred Web sites. The Cookies and Favorites are a compelling
witness to defendant’s interest in, if not obsession with, child pornography, and his
willingness to access it on the Internet. When defendant viewed the original images, he had,
like the defendants in Josephitis and Scolaro, the ability to print, copy, e-mail, save, send,
and otherwise exercise control over the images. The recorded statement also supports the
inference that defendant, given his demonstrated interest in the material, lingered over the
images “for a sufficient time to be able to terminate [his] possession” (720 ILCS 5/11-
20.1(b)(5) (West 2008)). Together with the Cookies and Favorites, the recorded statement
establishes that defendant knowingly and voluntarily possessed the original images of child
pornography as he viewed them on his computer screen.
¶ 70 The recorded statement also establishes that defendant knowingly and voluntarily
possessed the TIF images. Regarding the images of child pornography that he would “come
across,” defendant was asked, “[D]o you save these images on your hard drive on your
computer?” He answered, “No. I’m just assuming that the computer does that on [its] own.”
When asked how many pornographic images of children under 17 were on his hard drive,
defendant answered, “Probably less than 100.” This answer can reasonably be construed as
an admission to specific knowledge of some prohibited images on the hard drive.
Presumably, this was the evidence from which the trial court concluded that defendant was
aware of the TIF images. We have no grounds for overturning that factual finding. Evidently,
the court also found, though tacitly, that defendant possessed the TIFs “for a sufficient time
to be able to terminate [his] possession” (720 ILCS 5/11-20.1(b)(5) (West 2008)). This
finding was well grounded, given defendant’s knowledge of the TIFs and the length of time
that they had remained on his hard drive before his arrest (the oldest TIF was dated July 9,
2006, and even the newest, dated October 10, 2007, was created several hours before
defendant’s arrest).
¶ 71 As for the unrecorded statement, it contains the more direct admissions of a deliberate
search for child pornography. Defendant admitted that, for the past five years, he had been
seeking Web sites featuring girls under 17 and that his preferred age range was 12 to 15,
which is when children “were just starting to develop.” When visiting those Web sites, he
would “click on” images of child pornography that interested him, and he would revisit sites
to view the same images again. The Cookies and Favorites powerfully corroborate these
admissions. While either the recorded statement or the unrecorded statement would, in
conjunction with the Cookies and Favorites, present more than adequate evidence that
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defendant knowingly and voluntarily possessed the original images, together the statements
present overwhelming proof of possession of those images.
¶ 72 On the question of possession of the TIFs, the unrecorded statement neither confirms nor
denies that defendant had knowledge of the automatic caching function of his computer. As
we noted, adequate proof that defendant knew of that function lay in the recorded statement.
The unrecorded statement does, however, suggest that, if defendant was aware of the TIF
function, it would not have been surprising that defendant still possessed TIFs of child
pornography at the time of his arrest, such was his interest in the material.
¶ 73 We acknowledge that the only arguably direct evidence that defendant knowingly and
voluntarily possessed images of child pornography was his stated belief that fewer than 100
pornographic images of girls under 17 were saved on his hard drive. Despite defendant’s
emphatic insistence to the contrary, the lack here of such direct evidence as there was in
Josephitis and Scolaro is not decisive. Illinois case law (supra ¶ 54) is replete with
prosecutions in which the State was permitted to prove by circumstantial evidence, including
other-acts evidence, such elements or factors as intent, knowledge, and absence of mistake
or accident. Nothing in section 11-20.1(a)(6) or (b)(5) of the Code suggests that the crime
of possession of child pornography is any exception.
¶ 74 We uphold defendant’s convictions of possession of child pornography.
¶ 75 III. CONCLUSION
¶ 76 For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.
¶ 77 Affirmed.
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