People v. Rubio

226 N.E.3d 92

2023 IL App (1st) 211078

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Dennis RUBIO, Defendant-Appellant.

No. 1-21-1078

Appellate Court of Illinois, First District, Third Division.

Filed February 22, 2023

Appeal from the Circuit Court of Cook County, No. 18 CR 14597, Honorable Samuel J. Betar, III, Judge presiding.

James E. Chadd, Douglas R. Hoff, and Matthew M. Daniels, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Abraham, Joseph Alexander, and Kimberly C. Reeve, Assistant State’s Attorneys, of counsel), for the People.

OPINION

JUSTICE BURKE delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, the trial court found defendant, Dennis Rubio, guilty of one count of creation of child pornography, one count of aggravated criminal sexual abuse, and one count of possession of child pornography. The court subsequently sentenced him to 15 years’ imprisonment for creation of child pornography, 5 years’ imprisonment for aggravated criminal sexual abuse, and 5 years’ imprisonment for possession of child pornography, which, by law, had to be served consecutively for a total of 25 years’ imprisonment. On appeal, defendant contends that his conviction for possession of child pornography must be vacated under the one-act, one-crime doctrine because it was based on the same act as his conviction for creation of child pornography and, regardless, because possession of child pornography is a lesser-included offense of creation of child pornography. For the reasons that follow, we find that defendant’s conviction for possession of child pornography does not violate the one-act, one-crime doctrine and affirm his conviction for the offense.

¶ 2 I. BACKGROUND

¶ 3 A grand jury indicted defendant with two counts of creation of child pornography (counts I and II), one count of aggravated criminal sexual abuse (count III) and eight counts of possession of child pornography (counts IV through XI). As relevant to this appeal, count I alleged that defendant:

"film[ed], videotape[d] photograph[ed], or otherwise depict[ed] or portray[ed] by means of any similar visual medium or reproduction or depict[ed] by computer: to wit moving depiction by a computer, any child whom he knows or reasonably should know to be under the age of 13 of [sic] any person with a severe or profound intellectual disability where such child or person with a severe or profound intellectual disability is actually or by simulation engaged in any act of sexual penetration or sexual conduct with any person or an animal, to wit: lggsm_tp450 lg stylo3.zip/sdcard/dcim/camera/20180919_225048.mp4."

Count IV alleged that he:

"with knoweldge [sic] of the nature or content thereof, possessed any film, videotape, photograph or other similar visual reproduction or depiction by computer, to wit: moving depiction by cellular phone, of any child whom he knew or reasonably should have known to be under the age of thurteen [sic] (13), where such child is actually or by simulation engaged in any act of sexual penetration or sexual conduct with any person or an animal, to wit: lg gsm_tp450 lg stylo3.zip/sdcard/dcim/camera/20180919_225048.mp4."

Both counts I and IV were based on the same video.

¶ 4 Following discovery and the parties’ filing of various motions, the case proceeded to trial. On the day of defendant’s scheduled trial, the State nol-prossed one count of creation of child pornography (count II) and one count of possession of child pornography (count V). Thereafter, defendant waived his right to a jury trial and elected to proceed by way of a bench trial.

¶ 5 At trial, the State’s evidence revealed that, in the evening of September 19, 2018, defendant was hanging out in the garage of Ericka and Jason K., a married couple who lived in Mount Prospect, Illinois. Together, they had two children, including E.K., who was five years old. Defendant was a family friend. A little after 11 p.m., defendant went inside the house to use the bathroom. After a few minutes had elapsed, Ericka went into the house to look for defendant and noticed the bathroom light was off. Ericka walked into E.K.’s bedroom and observed defendant holding his cell phone in one hand while pulling down E.K.’s pants and underwear with his other hand. Upon witnessing defendant’s actions, Ericka screamed at him and yelled at defendant to give her the phone. While Ericka tried to get the phone from defendant, he "kept pushing buttons." Ericka then pushed defendant out of E.K.’s bedroom, called for Jason, and relayed to him what had just occurred. During a scuffle between Jason and defendant, Jason recovered defendant’s cell phone, and Ericka called the police. Approximately four minutes after Ericka called the police, responding officers arrived, and someone in the family gave an officer defendant’s phone.

¶ 6 The next day, Sergeant Scott Filipeck of the Mount Prospect Police Department, who testified at trial as a cell phone forensics expert, investigated the incident. Sergeant Filipeck spoke with defendant at the police station, and he provided Sergeant Filipeck consent to search his cell phone. While searching the phone, Sergeant Filipeck found video related to the incident. Thereafter, he obtained a search warrant to search the remaining contents of the phone. During the second search, Sergeant Filipeck found three videos that were created the night of the incident. Sergeant Filipeck determined that the videos were created that night based on the metadata embedded in the video as well as the file path name. Using this information, Sergeant Filipeck concluded that the first video was created at 10:50 and 48 seconds in the evening, the second video was created at 10:51 and 50 seconds in the evening, and the third video was created at 10:51 and 55 seconds in the evening. During trial, all three videos were published for the trial court and entered into evidence.

¶ 7 The first video, which formed the basis for counts I and IV, was 46 seconds long. In the video, defendant removed a blanket from E.K. while she was sleeping on her stomach, pushed her shirt up her back and pulled down her sweatpants and underwear, which exposed her buttocks. Defendant’s fingers then ran down E.K.’s exposed buttocks crack. Later in the video, defendant used his fingers to touch E.K.’s exposed buttocks twice more. The second video was two seconds long and depicted the bedding in E.K.’s bedroom. The third video was 11 seconds long, and depicted defendant pulling down E.K.’s pants and underwear to expose her buttocks. As defendant was doing this, a female voice could be heard saying "[w]hat are you doing?" The remainder of the video contained erratic movements and the same female voice asking "[w]hat are you f*** doing, dude?" In addition to finding those three videos on defendant’s phone, Sergeant Filipeck recovered several other photographs on the phone that he believed were child pornography, including some taken earlier that month of another minor. The photographs taken earlier in September 2018 formed the bases for counts VI through XL

¶ 8 After the incident, a nurse administered a criminal sexual assault kit on E.K., which included collecting anal swabs. A forensic scientist analyzed the kit and determined that amylase, a bodily fluid found in its highest concentration in saliva was detected on the anal swabs. Evidence, however, revealed that amylase was also found in other bodily fluids.

¶ 9 Defendant did not testify at trial, and he did not present any evidence on his behalf. Following the parties’ closing arguments, the trial court found defendant guilty of count I (creation of child pornography), count III (aggravated criminal sexual abuse), count IV (possession of child pornography), and counts VI through XI (possession of child pornography). As relevant to counts I, III, and IV—the counts related to E.K.—the court found that defendant engaged in sexual conduct with her by "touching] [her] buttocks on at least three occasions." Thereafter, defendant filed a combined motion to reconsider and for a new trial. The court denied the combined motion as it related to counts I, III, and IV. The court, however, granted the motion to reconsider on counts VI through XI and entered findings of not guilty on those counts.

¶ 10 The case proceeded to sentencing on counts I, III, and IV. During defendant’s sentencing hearing, his counsel requested that the trial court merge counts I and IV under the one-act, one-crime doctrine. The court denied the request, relying on the decision of People v. Reyes, 2020 IL App (2d) 170379, 447 Ill.Dec. 436, 174 N.E.3d 127. The court subsequently sentenced defendant to 15 years’ imprisonment on count I (creation of child pornography), 5 years’ imprisonment on count III (aggravated criminal sexual abuse) and 5 years’ imprisonment on count IV (possession of child pornography), which, by law, had to be served consecutively for a total of 25 years’ imprisonment. After sentencing defendant, defense counsel made an unsuccessful oral motion to reconsider the sentence, a procedure to which the State did not object. Defendant appealed.

¶ 11 II. ANALYSIS

¶ 12 Defendant contends that his conviction for possession of child pornography (count IV) must be vacated under the one-act, one-crime doctrine where his conviction for creation of child pornography (count I) arose out of the same act, or, in the alternative, because possession of child pornography is a lesser-included offense of creation of child pornography.

[1, 2] ¶ 13 Initially, the State posits that defendant forfeited review of his one-act, one-crime doctrine claim because, although he raised the issue at sentencing, he did not file a written postsentencing motion. Generally, "to preserve a claim of sentencing error, both a contemporaneous objection and a written postsentencing motion raising the issue are required." People v. Hillier, 237...