People v. Schwab

2019 IL App (4th) 160742-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KINZIE L. SCHWAB, Defendant-Appellant.

NO. 4-16-0742

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

April 9, 2019

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of Champaign County

No. 16CF337

Honorable Hugh Finson, Judge Presiding.

PRESIDING JUSTICE HOLDER WHITE delivered the judgment of the court.

Justices Knecht and Cavanagh concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, concluding (1) the trial court did not err by admitting motel registration records under the business-records exception to the hearsay rule and (2) trial counsel was not ineffective for failing to preserve this claim in the posttrial motion.

¶ 2 In March 2016, the State charged defendant, Kinzie L. Schwab, with criminal sexual assault (720 ILCS 5/11-1.20(a)(3) (West 2014)) (count I) and child pornography (720 ILCS 5/11-20.1(a)(1)(i) (West 2014)) (count II). The jury found defendant guilty on both counts. Subsequently, the trial court sentenced defendant to a term of 10 years' imprisonment on count I and a consecutive term of 15 years' imprisonment on count II.

¶ 3 Defendant appeals, arguing (1) the trial court erred by admitting motel registration records under the business-records exception to the hearsay rule because the State failed to lay a proper foundation for computer-stored evidence and (2) trial counsel was ineffective for failing to preserve this claim in a posttrial motion. For the following reasons, we affirm the trial court's judgment.

¶ 4 I. BACKGROUND

¶ 5 In March 2016, the State charged defendant with criminal sexual assault (720 ILCS 5/11-1.20(a)(3) (West 2014)) and child pornography (720 ILCS 5/11-20.1(a)(1)(i) (West 2014)). The criminal sexual assault charge alleged defendant committed an act of sexual penetration with D.H. (born December 14, 1999), who was under the age of 18, by placing his penis in her vagina and defendant was a family member. The child pornography charge alleged defendant filmed D.H., whom defendant knew to be under the age of 18, while she was actually engaged in acts of sexual penetration with defendant.

¶ 6 A. Jury Trial

¶ 7 In August 2016, the matter proceeded to a jury trial, where defendant was tried in absentia. We recount only the evidence necessary for the resolution of this appeal.

¶ 8 1. D.H.

¶ 9 D.H. testified she lived with her grandmother until she was eight years old, when she moved to Texas to live with her mother (Dawnyel Schwab), her stepfather (defendant), and her two half-sisters. Dawnyel encouraged D.H. and defendant to participate in father-daughter activities and D.H. eventually called defendant "dad." The family moved to Illinois when D.H. was in seventh grade.

¶ 10 D.H. received a computer for her eleventh birthday and began playing games and exploring social media. According to D.H., she posted photographs on a website called "photo bomb" and started to get comments related to defendant. D.H. formed a friendship with someone named Alex, and the two exchanged e-mails. D.H. testified, "as I started talking to thegroup, or the people, it starts with Alex but it was more eventually, but they started saying things like, [']we know who [defendant] is. We've known him for a long time. We just wanted to use you to be able to get to him.['] That kind of stuff. And they were, like, threatening me and my mother and my sisters, to do things and stuff like that." According to D.H., she tried to tell her mother once, but she did not believe D.H.

¶ 11 The people on the Internet began telling D.H. to do sexual things with defendant, like kissing or flirting. They threatened to hurt D.H.'s family if she ever brought up their communications. D.H. began to suspect defendant was sending the messages because the sender knew immediately when D.H. was going outside or jumping on the trampoline instead of doing what they asked her to do. In sixth grade, D.H. received messages telling her to "go downstairs and hang out." When D.H. went downstairs, defendant "came on to" her in the kitchen. D.H. testified he came up behind her, said, "you know, mom's not home," and touched her.

¶ 12 D.H. continued to receive messages from 2011 through 2015, and defendant continued to attempt to get physical with D.H. during that time. D.H. testified the messages were "hopeful" and stated "if you just do this, if you just do this, then we'll stop bothering you, we won't hurt your mom, we'll leave your sisters alone." D.H. was overwhelmed, wanted the messages to stop, and decided to go ahead with the requests.

¶ 13 In 2015, defendant broached the idea of engaging in sexual intercourse and suggested he and D.H. do "something more than what's already being done." Between April and June 2015, defendant and D.H. twice went to hotels in Champaign. D.H. identified photographs of the hotel rooms and specifically remembered the view out of one window because it was "the only thing [she] had to look at while it was happening." D.H. testified defendant put his penis in her vagina on two occasions. On another occasion, defendant gave D.H. alcohol and she wasunsure if they had sexual intercourse. D.H. tried to tell her mother what happened but it did not help.

¶ 14 According to D.H., defendant was controlling and would not let her leave the house. D.H.'s mother passed away in February 2016, and D.H. began seeing a counselor. D.H. began "letting out hints" about what defendant did to her and eventually told her counselor and an investigator with the Urbana Police Department what happened. D.H. identified People's exhibit No. 1 as a computer disk containing a video of her and defendant having sexual intercourse in a hotel room. D.H. also identified People's exhibit Nos. 8(a) through 8(d), which were photographs depicting defendant's work area in their house and her mother's telephone. Once D.H. had sexual intercourse with defendant, she stopped receiving messages and defendant did not continue to pursue her.

¶ 15 2. Mehul Patel

¶ 16 Mehul Patel testified he worked at the front desk of a Super 8 Motel in Champaign. According to Mehul, the motel was part of the national hotel chain and, in the course of regular activities, the business kept records of people who checked in, checked out, and how they paid. Mehul testified it was a corporate policy that "whoever comes and goes there, stay in computer." Mehul agreed the records were entered close in time to the transactions and were accurate. Mehul testified that when a police officer asks if a person has stayed at the hotel, Mehul has to cooperate with the officer and give the officer access to the records. The State showed Mehul People's exhibit No. 4, and Mehul stated, "I—I—this paper print out, I—I did the print out when officers came, but I don't know who is the person or when, because there is three people are working so." Mehul identified the printout as an accurate copy of the business records maintained by his business. According to Mehul, he did not put information into therecord. Mehul testified, "Actually what happens when we have a system like (unintelligible) comes with the different—a different company, like Price Line, Experion, anything, that the—this end the reservation." When someone checks in, the person working the front desk checks the confirmation number against the computer records.

¶ 17 The State moved to admit People's exhibit No. 4, and defense counsel objected "as to foundation, for the accuracy of what's actually been in-putted into the system." The State argued that "what goes in simply goes to weight." The State pointed out the admission of the item once a business-records foundation had been laid was a different issue. The court agreed with the State and admitted People's exhibit No. 4 into evidence.

¶ 18 3. Kantilal Patel

¶ 19 Kantilal Patel testified he was a desk clerk and assistant manager at Motel 6 in Urbana. Kantilal testified the business kept records of people who check in and out of the hotel, as well as how they paid and where they stayed. According to Kantilal, the records are made close in time to the event occurring. When someone checks in or pays, a notation is made in the computer system. The desk clerk also scans the person's identification card. Kantilal testified the records were accurate and he was one of the people who could handle and process those records. Kantilal identified People's exhibit Nos. 5 and 6 as business records from his business related to defendant. Kantilal testified the exhibits were true and accurate copies of the business records kept in the regular course of his business. Kantilal testified he remembered checking in defendant and making the business records at that time.

¶ 20 The State moved to admit People's exhibit Nos. 5 and 6 into evidence. Defense counsel again objected and stated, "I think him saying it's a true and accurate record of what happened, what someone else entered is essentially commenting on what the reliability of whatsomeone else did. I—I think he can testify it's a record consistent with the regular course of business, but as to it's [sic] accuracy, I would object." The State maintained its position that the exhibits were admissible as business records and the contents of the records were subject to argument as to its weight. The court admitted People's exhibit Nos. 5 and 6.

¶ 21 4. Tim McNaught

¶ 22 Tim McNaught, an officer with the Urbana Police Department, testified he had special expertise in computer forensics and more than 400 hours of digital forensics training. McNaught was qualified as an expert in cellular telephone forensic examination. McNaught testified that on March 3, 2016, he assisted Investigator Matthew Bain with the execution of a search warrant at defendant's house. According to McNaught, he recovered an iPhone 4 from defendant's work area. During...