People v. Reber - Case Law

2019 IL App (5th) 150439
NOTICE
Decision filed 04/16/19. The
text of this decision may be NO. 5-15-0439
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of
IN THE
the same.
APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Christian County.
)
v. ) No. 14-CF-223
)
JAROD C. REBER, ) Honorable
) Bradley T. Paisley,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________

JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
Presiding Justice Overstreet and Justice Cates concurred in the judgment and opinion.

OPINION

¶1 Defendant, Jarod C. Reber, was found guilty of three counts of child pornography and

one count of predatory criminal sexual assault of a child. The court sentenced defendant to

consecutive sentences totaling 70 years in prison. The primary victim was the 12-year-old sister

of defendant’s wife.

¶2 Defendant timely filed this direct appeal on October 20, 2015. This court has jurisdiction

pursuant to Illinois Supreme Court Rules 603 and 606, as well as article VI, section 6, of the

Illinois Constitution. Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013); Ill. Const. 1970, art. VI, § 6.

¶3 BACKGROUND

¶4 On December 11, 2013, the State charged defendant with the following two charges: one

count of child pornography in violation of section 11-20.1(a)(1)(vii) of the Criminal Code of

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2012 (Code) (720 ILCS 5/11-20.1(a)(1)(vii) (West 2012)) (Class X felony for allegedly

videotaping a child under 18 while the child was unclothed, showing her exposed genitals and

breasts on or about June 12, 2013, in Taylorville, Illinois (count I)) and one count of child

pornography in violation of section 11-20.1(a)(1)(vii) of the Code (id.) (Class 1 felony for

allegedly photographing a child under 18 in which her unclothed pubic area was exposed (count

II)). On January 13, 2015, the State charged defendant with a third charge: one count of

predatory criminal sexual assault of a child in violation of section 11-1.40(a)(1) of the Code (id.

§ 11-1.40(a)(1)) (Class X felony for digitally penetrating the vagina of a child under the age of

13 between May 1, 2013, and September 30, 2013, in Taylorville, Illinois (count III)). On June

16, 2015, the State charged defendant with one count of child pornography in violation of section

11-20.1(a)(6) of the Code (id. § 11-20.1(a)(6)) (Class 3 felony for possession of a photograph of

a child that defendant should have reasonably known to have been under 18 engaged in an act of

sexual conduct (count IV)). 1

¶5 Hearing on Intent to Offer Evidence of Other Crimes

¶6 Prior to trial, the State filed its notice of intent to offer evidence of other crimes. The trial

court held its hearing on the State’s notice on June 18, 2015. The trial judge thoroughly outlined

the requirements of the applicable procedural statute at the beginning of the hearing. 725 ILCS

5/115-7.3 (West 2014). The State presented testimony and evidentiary documents to support its

request that it be allowed to introduce the testimony of H.S., introduce multiple photographs and

videos, and introduce the testimony of Caleb Reber, whose daughter is depicted in some of the

photographs.

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Count I was amended to change the date to a range of between May 1, 2013, to September 30,
2013. Count II was amended to add a date range from January 1, 2012, to September 1, 2013. Count III
was amended to change the date range to January 1, 2012, to September 30, 2013. Count IV was amended
to add a date of the offense, December 19, 2014.
2
¶7 H.S. was the first to testify. She stated that she was currently 28 years old. She alleged

that defendant began sexually abusing her in 1988 when she was 11 or 12 years of age. She met

defendant when she was 10 and he was 17. Her involvement with defendant lasted until she was

13. Defendant began spending nights at H.S.’s home and eventually moved in with her family.

Defendant followed H.S. and her family to Michigan after they moved there. The first sexual

encounter occurred in Illinois while they were sitting on a couch watching a movie. She kept

falling asleep and felt something pushing against her. Defendant then announced to her, “We did

it.” After that initial encounter, she began having sexual intercourse with defendant several times

each week. She denied initiating contact but testified that she did not resist. She described the

situation as confusing both because of her age and defendant’s claim that he loved her. She never

told her mother or friends and never reported what defendant did to the police. H.S. claims that

her brother was aware of the abuse. She told her mother about the abuse in recent years. H.S.

testified that she suffered from physical symptoms resulting from the sexual abuse.

¶8 Detective Daniel Marron, employed by the Christian County Sheriff’s Department, next

testified. He explained that the case began when his department was contacted by defendant’s

employer about pornographic images found on the laptop that had been assigned to defendant.

Detective Marron contacted the Illinois Attorney General’s Office for investigative assistance.

The laptop was turned over to the attorney general’s office, and they found numerous potentially

pornographic images of underage girls. Detective Marron obtained a search warrant for

defendant’s home. He participated in defendant’s interview, after which defendant gave the

sheriff’s department authorization to search his cellular phone. Additional images were located

on the phone. Many images were of the two suspected victims, while other images included what

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appeared to be underage girls with older men, as well as women purportedly engaged in sexual

activities with animals.

¶9 Caleb Reber testified that the defendant is his brother. He testified that his nine-year-old

daughter spent nights at defendant’s house (between 20-30 times) when she was four or five

years of age. Reviewing some of the photographs, Caleb identified his brother’s couch and hand,

as well as his daughter’s Hello Kitty underwear and body. He provided the pair of underwear

depicted in the photographs to the sheriff’s department.

¶ 10 C.L., the victim of three of the charged crimes, testified. She was 14 years old on the date

of the hearing. Her older sister, Breanne, is defendant’s wife. C.L. began spending the night at

defendant’s house when she was 11 or 12. She stopped sleeping over when she turned 13 as she

began spending more time with her friends. When C.L. spent the night at defendant’s house, she

always slept on the couch. She and defendant would watch movies and play PlayStation. C.L.

identified herself in numerous photographs. She explained her self-identification as being based

on her recognition of various articles of clothing shown in the photographs: her underwear with a

heart-shaped design, her orange shorts, her black shorts with white line detail, the shorts with

stars on them, and her black Danskin-brand shorts. She also identified the mole on the inner part

of her right thigh. She testified that she used to suffer headaches when she woke up on Sunday at

defendant’s house, and that after she stopped sleeping over, the headaches ceased. C.L. also

testified that defendant frequently would not let her use his bathroom until he went in first. Then

after she exited the bathroom, he would go back into the bathroom.

¶ 11 The trial court compared the videos and photographs that were the foundation for the four

charges against defendant with the photographs the State sought to introduce as evidence of other

acts and/or crimes. The court explained that the goal was to ensure that defendant received a fair

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trial and that the court was responsible to prevent the hearing from becoming a mini-trial. The

court noted that this was necessary to minimize against any danger that the defendant could be

convicted because of other acts or other crimes evidence rather than because of the actual

charged events.

¶ 12 After announcing the law to be followed, the trial court concluded that the testimony of

H.S. would be allowed but only as to the first sexual contact. Although many years had passed,

the court noted that there was no bright-line rule on how many years were proper between the

charged events and the offered other acts and/or crimes evidence. The court commented that

although H.S. did not testify about digital penetration, other factors were similar: the victims

were roughly the same age and female, the sexual abuse occurred late at night when the victims

were alone with the defendant, and the victims were either living with or had a significant family

relationship to the defendant. The court concluded that it did not find that the probative value of

H.S.’s proposed testimony was outweighed by prejudice to defendant.

¶ 13 The majority of the photographs depicted one of the two suspected victims, and thus the

trial court found no concern with proximity in time issue. The victim-based photographs were

allowed. Some of the photographs offered by the State were of other males with possible

underage girls. The trial court allowed the usage of some of those photographs and disallowed all

photographs that depicted sexual acts other than digital penetration. The court also disallowed all

bestiality photographs because those photographs were inconsistent with section 115-7.3 of the

Code of Criminal Procedure of 1963 in that the other acts or crimes evidence must be of

“evidence of the defendant’s commission of another offense” as that with which he was charged.

Id. § 115-7.3(b).

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¶ 14 Bench Trial

¶ 15 The bench trial was held on June 24 and June 25, 2015. Several witnesses testified. The

audiotape of defendant’s interview was brought into evidence. The approved other acts and/or

crimes photographic evidence was received into evidence. Defendant did not testify.

¶ 16 Bryan Booth

¶ 17 Bryan Booth is employed at Bob Ridings, an automobile dealership, in its Pana store as

its business manager and finance director. Defendant worked in the Pana store from June 29,

2013, to October 31, 2013, as a salesperson. He was issued a laptop for work. Booth testified that

he saw defendant’s personal cellular phone plugged into the laptop on multiple occasions. After

October 31, 2013, defendant was moved to the Decatur store and the laptop was locked in a safe.

Booth acknowledged that other employees could have used the laptop during the months it was

assigned to defendant.

¶ 18 In preparation for the laptop’s use by a service manager, Booth retrieved it from the safe

and began deleting unnecessary programs and anything of a personal nature. By mistake, Booth

deleted a program. To retrieve the deleted program, he opened up the laptop’s “trash can,” and in

doing so, Booth noticed a lot of pornographic photographs depicting what he believed to be

underage girls. He called the owner of the car dealership, and the owner contacted the Christian

County Sheriff’s Department. Booth turned the laptop over to Detective Marron of the sheriff’s

department.

¶ 19 Detective Daniel Marron

¶ 20 Detective Marron testified that after receiving a call from defendant’s former employer,

Booth turned the laptop over to the sheriff’s department. Detective Marron then took the laptop

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to the Illinois Attorney General’s Office in Springfield. The attorney general’s office was able to

download multiple photographs and two videos.

¶ 21 Some of the photographs showed a young female. Detective Marron took one of the

photographs to area schools and ultimately identified the older of the two suspected victims.

From that information, he determined that defendant’s wife was the victim’s older sister.

¶ 22 Detective Marron went to the Christian County State’s Attorney to seek a search warrant

for defendant’s home. Defendant was asked to meet with Detective Marron. He informed

defendant that he was conducting a criminal investigation.

¶ 23 C.L.’s mother was contacted and interviewed. Defendant’s wife was contacted and she

reviewed one of the videos—the “bathroom video.” Defendant’s brother, Caleb Reber, spoke

with Detective Marron and then brought his daughter’s Hello Kitty underwear, depicted in some

of the photographs, to the sheriff’s department. The Department of Children and Family Services

(DCFS) brought a pair of underwear to the sheriff’s department that was provided by C.L.’s

mother. The underwear was decorated with heart shapes. Caleb Reber’s girlfriend brought in a

wedding band that belonged to defendant, and Detective Marron testified that the wedding ring

matched the ring worn by the man in the two videos. He was present for C.L.’s interview with

DCFS. He also ordered a physical examination of C.L. by a local physician.

¶ 24 Detective Marron interviewed defendant, and the interview was audiotaped. During the

interview, defendant acknowledged involvement with the photographs and videos found on his

former work laptop and gave consent to have his cellular phone searched. The subsequent

analysis of defendant’s cellular phone revealed another graphic photograph depicting a small

nude child and an adult male.

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¶ 25 Later in the investigation, Detective Marron was contacted by H.S., who informed him

about her “relationship” with defendant.

¶ 26 Detective Marron was recalled to testify in the defendant’s case about various taped

phone calls between defendant and his wife. During some of the calls, defendant proclaimed his

innocence. On cross-examination, Detective Marron noted one call during which defendant said

that he “did it” and that he wanted a chance to fix it.

¶ 27 Defendant’s Audiotaped Interview

¶ 28 Defendant was interviewed on December 10, 2014, by Detective Marron and Investigator

Tom Berola of the Illinois Attorney General’s Office. Defendant waived his Miranda rights.

¶ 29 Defendant denied that he transferred files from his cellular phone to a work laptop. The

officers explained that deleted files were found on the laptop containing concerning photographs

and videos. At first defendant did not want to discuss the videos because he stated that the issue

was “quite embarrassing.” He first said that he took photographs of his wife while sleeping.

When confronted with the fact that there were two younger-looking girls in these photographs,

defendant stated that “it was kind of a situational thing” and that he had been in a “wrong state of

mind.”

¶ 30 Defendant admitted that his wife’s sister had slept over at the house. He said that the

photographs of his wife’s sister were taken when she was 13 years old. His wife was in the

bedroom. His wife’s sister was sleeping on the couch and did not wake when he pulled her

underwear aside and took the photographs. He denied that he had attempted to insert a finger into

her vagina but acknowledged that he could have brushed up against her private areas in

attempting to pull her underwear to the side. At first defendant stated that this only happened one

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night, but then was forced to acknowledge that it occurred more than once because his wife’s

sister was wearing multiple pairs of shorts.

¶ 31 Defendant did not admit knowledge of the little girl who was wearing Hello Kitty

underwear in some of the photographs.

¶ 32 About other pornographic photographs, defendant denied trading photographs with

anyone else but stated that he would visit various sites, including a nudist site, and would

download photographs from those sites.

¶ 33 Defendant stated that he had no idea why he committed these acts with his wife’s sister.

He stated that she was like his own child until approximately two years before the interview. He

said that he was not attracted to her but felt compelled to do this to her.

¶ 34 Defendant acknowledged creating the bathroom video and told the officers that he knew

that his wife’s sister was going to be changing clothing in his bathroom. He filmed her changing

clothing with a Canon digital camera he hid next to the toilet.

¶ 35 The officers repeatedly asked defendant if he had anything else to tell them. In response,

defendant said that he knew this would happen. He said that he liked looking at all nude

women’s bodies including that of “pubescent” teenage girls. He told the officers that he

especially liked to look at the nudist sites because of the family dynamic with parents and their

young children. He told the officers that his interest was not sexual but was just something that

he enjoyed.

¶ 36 Christian County Investigator Jeffrey Brown

¶ 37 Investigator Brown testified that he executed the search warrant at defendant’s house on

December 10, 2014. He took photographs of the inside of the house, as well as any articles

collected. The items collected included a pair of defendant’s Nike shoes and the shower curtain

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seen in the bathroom video. In addition, Investigator Brown seized a Motorola cellular phone, a

Canon digital camera, and a Sony camcorder. Investigator Brown also testified that he came in

contact with defendant’s work laptop and his Samsung cellular phone. Finally, he also brought

two pairs of underwear and a wedding ring to court that had been stored in the evidence locker at

the sheriff’s department.

¶ 38 Illinois Attorney General Investigators

¶ 39 Investigator Siobhan McCarthy, a computer evidence recovery technician with the

Illinois Attorney General’s Office, was certified as an expert in computer evidence data

recovery. Investigator McCarthy testified about the process she used to extract photographs and

videos from defendant’s work laptop. She testified that defendant downloaded the photographs

to the laptop on September 29, 2013.

¶ 40 Investigator Berola testified that he had completed hundreds of cellular phone

examinations during his career with the attorney general’s office. He was certified as an expert in

the field of cellular phone examination and data extraction. Investigator Berola testified about the

process he used to extract photographs and videos from defendant’s Samsung cellular phone.

¶ 41 Caleb Reber

¶ 42 Caleb testified that defendant is his brother. Caleb has two children, one of whom is a

nine-year-old girl. He allowed his daughter to spend the night at his brother’s house on numerous

occasions. Caleb was contacted by law enforcement to look at photographs that were found on

his brother’s laptop. He was shown one of the photographs and he testified that his daughter was

the child depicted. He testified that he recognized defendant’s couch and hand as well as his

daughter’s body and underwear. His daughter would have been five, six, and seven years of age

during the relevant months at issue—January 2012 through September 2013. Caleb also

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identified a photograph of his brother’s wedding ring and testified that he had obtained the ring

from defendant’ wife. He testified that he knew H.S. in that defendant was close friends with

H.S.’s older brother. He testified that when H.S. was 10-11 years of age, he saw her with

defendant at H.S.’s house. At that time, his brother was somewhere between 17 and 19 years old.

When H.S. and his brother were together, they were always lying together on the couch.

¶ 43 Alicia Smith

¶ 44 Alicia Smith is Caleb Reber’s girlfriend and the mother of one of the suspected victims.

She testified that Caleb gave her defendant’s wedding ring, and she delivered it to the sheriff’s

department.

¶ 45 Penny L.

¶ 46 Penny L. is the mother of defendant’s wife, Breanne, and C.L. She testified that Breanne

began dating defendant when she was 16 and he was 21 or 22 years old. The sheriff’s department

called Penny and asked her to watch the bathroom video. Penny testified that the bathroom video

showed her daughter, C.L. She also looked at the other photographs that had been downloaded

from defendant’s laptop and recognized C.L. in many of the photographs. Her identification of

C.L. was based on her recognition of C.L.’s underwear and the shape of her legs and body. She

then went home and found the underwear and brought them to the DCFS worker assigned to the

case.

¶ 47 Penny was recalled to testify in the defendant’s case primarily about statements her

daughter, Breanne L. (defendant’s wife), made to her about the photographs and videos. Penny

testified that Breanne told her that some of the photographs were of her—not C.L. Penny

acknowledged that she was not happy with Breanne, who initially did not believe that her

husband engaged in the accused acts. She encouraged Breanne to look at all of the photographs

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and both videos. When Breanne had thought that she was the person in the video, the only video

she had seen was the digital penetration video. Penny admitted that before this case she had

advised Breanne that she should divorce the defendant but denied telling her to do so after

defendant was charged.

¶ 48 Penny also testified that she was present when C.L. had her examination with Dr.

Jennifer DeLuka. She identified a document Dr. DeLuka created that was a diagram noting

where C.L.’s mole was located.

¶ 49 Penny testified that she had attempted to avoid discussing the case with C.L., but if C.L.

asked her a question about the case, she would answer the question. Part of the reason Penny

chose not to discuss the case with C.L. was because just six months prior to the charges, C.L.’s

father was diagnosed with cancer and passed away. Penny stated that C.L. truly had not mourned

the death of her father and had become quiet and reserved. Penny testified that she asked the

state’s attorney to seek a fair punishment. She defined the term “fair punishment” as a sentence

lasting until C.L. and defendant’s son were legally adults.

¶ 50 Breanne L.

¶ 51 Breanne testified that she was no longer married to the defendant. She identified

defendant’s wedding ring. She confirmed that her sister, C.L., used to spend the night at her

home. C.L. would sleep on the couch. One time she found the defendant sleeping behind C.L. on

the couch. She confirmed that the underwear with hearts on it did not belong to her. She

identified a photograph of her sister, C.L., and of her bathroom. When she went to the sheriff’s

department for questioning, they showed her the bathroom video, and she identified her sister,

who was changing clothing. She also testified that the defendant was the person starting and

stopping the camera because she recognized his shoes. She denied that she was depicted in any

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of the photographs introduced into evidence. The sheriff’s department also had her watch the

video in which C.L. was being digitally penetrated by defendant. She recognized her sister’s

mole, defendant’s hands, and her couch and blanket. On cross-examination, Breanne

acknowledged that initially she had told people that she could have been the person depicted in

the video of digital penetration.

¶ 52 Breanne was recalled to testify in the defendant’s case mainly about her interactions with

her mother. She testified that her mother encouraged her to seek a divorce. The divorce is final,

and Breanne was awarded custody of their child subject to defendant’s visitation rights. On

cross-examination, Breanne testified that defendant asked her not to go through with the divorce

because it could hurt his criminal case.

¶ 53 C.L.

¶ 54 C.L.’s testimony mostly mirrored her testimony at the hearing on the other acts or crimes

evidence. She went through all of the photographs and the videos at trial and identified herself in

all of them. She identified the clothing that she was wearing, the mole on the back of her right

thigh, and her hair. C.L. was able to determine that the bathroom video occurred in the summer

of 2012. She recognized the swimsuit that she was wearing in the video. C.L. concluded that

some of the photographs of her were taken in December 2012 or early 2013 based upon the

position of the furniture in the living room. C.L. testified that when she was interviewed by a

DCFS worker, she told the worker that she did not know why she was being interviewed. After

the DCFS interview, C.L.’s mother told her about the allegations against defendant, and that

there were photographs and videos of her. Her mother did not tell her what allegedly happened

when the photographs and videos were taken. C.L. stated that she almost always had a headache

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the next day after she spent the night at defendant’s house. After she stopped spending nights at

defendant’s house, her headaches decreased but did not completely go away.

¶ 55 Jamie Bramblett

¶ 56 Jamie Bramblett testified that she was the DCFS worker who ordered C.L.’s physical

examination. She interviewed Breanne twice and Penny six times. She testified that Breanne told

her that she was the female in some of the photographs. Bramblett testified that she told Penny

that defendant was being charged with penetration based upon the discovery of a video.

¶ 57 Convictions

¶ 58 At the conclusion of the trial, the court determined that the State had established

defendant’s guilt beyond a reasonable doubt on all four charges.

¶ 59 Count I was the child pornography charge based upon the bathroom video. The court

noted that there was no question that defendant set up the camera and intended to obtain video of

C.L. At issue was whether the images in the video were lewd. The trial court considered the six

factors set forth by the supreme court in People v. Lamborn, 185 Ill. 2d 585, 592, 708 N.E.2d

350, 354 (1999) ((1) if the focal point of the image is the child’s genitals, (2) if the setting or

pose is sexually suggestive, (3) if the child is depicted in an unnatural pose or in inappropriate

clothing, (4) if the child is clothed or nude, (5) if the child is depicted to suggest a coyness or

willingness to engage in sexual activity, and (6) if the child is depicted with the intent to elicit a

sexual response in the viewer). The court concluded that the camera was set up in order to

possibly capture an image of C.L.’s genitals, that C.L. was fully nude, and that the video placed

the viewer in the role of a voyeur or “Peeping Tom.” Those three factors supported the trial

court’s conclusion that defendant was guilty of this charge.

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¶ 60 Count II was a child pornography charge based upon one photograph of a hand touching

a pubic region of a female. C.L. identified herself as the female. Defendant admitted during

jailhouse phone calls that he took the photographs. Furthermore, the court concluded that he took

the photographs because they were found on his laptop. Using the Lamborn factors, the trial

court found that the image was lewd because the focus of the photograph was on the child’s

genitals, the visual depiction was sexually suggestive, the child was partially nude, the pose was

unnatural in that a 12-year-old would not be lying face down on a couch in the middle of the

night with her genitals exposed and a man touching the genitals, and the visual depiction was

intended to elicit a sexual response. The court found that the factors clearly supported its

conclusion that defendant was guilty of this charge.

¶ 61 Count III was a predatory criminal sexual assault charge based upon the video showing a

man digitally penetrating a female’s genitals. The court found that defendant was the man in the

video. The court found that the video showed a slight intrusion into C.L.’s vagina, and thus the

penetration element was satisfied. Accordingly, the court concluded that defendant was guilty of

this charge.

¶ 62 Count IV was a child pornography possession charge based upon one photograph

extracted from defendant’s cellular phone that depicted a nude female infant lying on the floor

with a male’s erect penis placed on the infant’s leg. The court found that the photograph was

clearly lewd and concluded that defendant was guilty of the charge.

¶ 63 Sentencing

¶ 64 Defendant was sentenced on August 10, 2015.

¶ 65 At the hearing, the State offered a taped phone conversation between defendant and his

father during which defendant was asked about the photographs of his brother Caleb’s daughter.

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Defendant told his father that he lacked information about those photographs, that he had been

drunk, and that when he woke up the next day the photographs were on his phone. The State also

called H.S., who testified consistent with her testimony at the other acts and/or crimes evidence

hearing. She testified that she sent defendant a confrontational Facebook message on September

24, 2013, before he was charged. She wrote the message to defendant to let him know about the

lasting mental and physical effects caused by his years of sexual abuse.

¶ 66 Nick Reber, then 17 years old, testified for his father. Defendant sought and was awarded

custody of Nick. Nick testified that his father was caring and loving. He helped Nick with

improving his athletic skills, with homework, and in playing video games.

¶ 67 Defendant provided his own statement of allocution in which he apologized to all

affected by his actions. He stated that he had no ability to explain why these actions occurred,

but that he hoped with treatment he would get better. He informed the court that he took full

responsibility for his actions and that he knew he must be punished but asked for leniency in

order for him to continue to have an opportunity to be an involved father with his three sons.

¶ 68 The trial court noted that it considered the victim impact statement, the trial evidence, the

presentence investigation report, the sex offender report, the evidence and arguments presented

during the sentencing hearing, defendant’s statement of allocution, and all statutory factors in

aggravation and mitigation. In mitigation, the court noted that defendant’s incarceration would

present a hardship to his family and that, in committing the crimes of which he was convicted, he

did not physically harm or threaten to harm his victims. In aggravation, the court found that there

was a threat of serious harm to his victim. The trial judge stated:

“It has been my experience that children who were involved in this type of unfortunate

situation are very much more prone to suffer all kinds of things in the future, uh, from

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becoming a perpetrator themselves to having difficulty in developing and keeping normal

relationships. Uh, alcohol and drug abuse is higher amongst kids that are involved and

victimized in that way. There is just a lot of that that we don’t know. And hopefully, her

family will be able to help her and get her into counseling to minimize that threat of

harm, but that threat is certainly there.”

The court noted that defendant had two older felony convictions, but stated that those were not a

large aggravating factor. Also in aggravation, the court found that defendant held a position of

trust and supervision to the victim as her brother-in-law. The court found that deterring others

was a relevant aggravating factor, and stated that defendant’s behavior was “disgusting,” would

have long-lasting repercussions, and could not be tolerated in a civil society. The court found

that defendant did not exhibit genuine remorse for what he did. In conclusion, the court found

that defendant was a medium to high threat to recidivate and was a threat to society.

¶ 69 On count I (the bathroom video child pornography charge), the trial court sentenced

defendant to 20 years followed by 3 years to life of mandatory supervised release (MSR). On

Count II (photograph of victim child pornography charge), the trial court sentenced defendant to

10 years followed by 3 years to life of MSR. On count III, predatory criminal sexual assault, the

trial court sentenced defendant to 35 years followed by 3 years to life of MSR. On count IV

(photograph of unknown child—child pornography charge), the trial court sentenced defendant

to five years, followed by one year of MSR. The court ordered defendant to serve the four

sentences consecutively.

¶ 70 Defendant’s timely motion to reconsider the sentence was denied on September 29, 2015.

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¶ 71 LAW AND ANALYSIS

¶ 72 Other Acts and/or Crimes Evidence

¶ 73 Defendant first argues that the trial court did not properly evaluate the other acts and/or

crimes evidence in concluding that the probative value of this evidence outweighed the prejudice

to the defendant. We disagree.

¶ 74 Evidence of other acts and/or crimes evidence is not generally admissible to prove that

the defendant has a propensity to commit a crime. See People v. Richee, 355 Ill. App. 3d 43, 50-

55, 58-59, 823 N.E.2d 142, 149-53, 155-56 (2005); but see People v. Boyd, 366 Ill. App. 3d 84,

91-92, 851 N.E.2d 827, 835-36 (2006) (holding that admission of sexual assault of another

victim was proper other crimes evidence to prove the defendant’s intent and propensity to

commit rape).

¶ 75 Despite the general rule that other acts and/or crimes are inadmissible to establish intent

or propensity, certain sexually-based acts and/or crimes may be admissible to establish a

defendant’s intent or propensity to commit a similar crime. Section 115-7.3 of the Code of

Criminal Procedure of 1963 authorizes the introduction of other acts and/or crimes evidence in

specific cases and provides specific guidance for admissibility. 725 ILCS 5/115-7.3 (West 2014).

“This legislation, which is unique to sex offenders, recognizes the propensity of sex offenders to

repeat their crimes, and it allows the court to use this evidence in order to help protect society.”

90th Ill. Gen. Assem., Senate Proceedings, Mar. 19, 1997, at 56-57 (statements of Senator

Radogno). The legislature elected to single out sex offenders by allowing the introduction of

evidence of other acts and/or crimes because sex offenders tend to repeat their crimes. People v.

Childress, 338 Ill. App. 3d 540, 549-50, 789 N.E.2d 330, 337-38 (2003).

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¶ 76 Looking at the crimes that defendant was accused of committing, we note that both child

pornography and predatory criminal sexual assault of a child are listed in section 115-7.3 as the

types of crimes where other acts and/or crimes evidence could be admissible. 725 ILCS 5/115-

7.3(a)(1) (West 2014). “If the defendant is accused of an offense *** [in this statute] ***,

evidence of the defendant’s commission of another offense or offenses *** [in this statute] ***

may be admissible *** and may be considered for its bearing on any matter to which it is

relevant.” Id. § 115-7.3(b). Proof of other acts and/or crimes evidence may be made “by specific

instances of conduct.” Id. § 115-7.3(e).

¶ 77 Admission of these specific other acts and/or crimes is not without limits. The trial court

must not allow evidence of other acts and/or crimes unless after weighing the probative value of

the evidence, the court concludes that the probative value outweighs any undue prejudice to the

defendant. Id. § 115-7.3(c). Section 115-7.3(c) provides three factors that the court may consider

in making this determination: “(1) the proximity in time to the charged or predicate offense;

(2) the degree of factual similarity to the charged or predicate offense; or (3) other relevant facts

and circumstances.” Id.

¶ 78 On appeal, the reviewing court may reverse the trial court’s decision to admit other acts

and/or crimes evidence, if it finds that the trial court abused its discretion. People v. Donoho, 204

Ill. 2d 159, 182, 788 N.E.2d 707, 721 (2003). Trial courts have been urged “to be cautious in

considering the admissibility of other-crimes evidence to show propensity.” Id. at 186. The

meaningful assessment required by the trial court generally requires the trial court to discuss both

the probative and undue prejudicial value of the evidence and then to weigh these two values.

People v. Johnson, 406 Ill. App. 3d 805, 812, 941 N.E.2d 242, 250-51 (2010); Boyd, 366 Ill.

App. 3d at 94.

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¶ 79 Finally, we note that admission of other acts and/or crimes evidence is not compulsory

even if the requirements of section 115-7.3 are met. People v. Cardamone, 381 Ill. App. 3d 462,

489, 885 N.E.2d 1159, 1180 (2008). “Courts generally prohibit the admission of this evidence to

protect against the jury convicting a defendant because he or she is a bad person deserving

punishment.” Donoho, 204 Ill. 2d at 170 (citing People v. Manning, 182 Ill. 2d 193, 213-14, 695

N.E.2d 423, 432 (1998)). The evidence of other crimes is not construed as irrelevant, but instead

is overly probative. Id. (citing Manning, 182 Ill. 2d at 213). The primary focus of the criminal

trial must be that the defendant has “his guilt or innocence evaluated solely on the basis of the

charged crime.” Id. (citing People v. Lampkin, 98 Ill. 2d 418, 430, 457 N.E.2d 50, 56 (1983)). In

other words, the trial judge should not allow a “mini-trial” of the other uncharged offense “but

should allow only that which is necessary to ‘illuminate the issue for which the other crime was

introduced.’ ” People v. Bedoya, 325 Ill. App. 3d 926, 938, 758 N.E.2d 366, 377 (2001) (quoting

People v. Nunley, 271 Ill. App. 3d 427, 432, 648 N.E.2d 1015, 1018 (1995)).

¶ 80 Initially, we note that defendant did not preserve this issue for appeal, as he did not

specifically object during the hearing and did not raise the issue in his posttrial motion.

Therefore, the defendant forfeited the issue on appeal. People v. Enoch, 122 Ill. 2d 176, 186, 522

N.E.2d 1124, 1129-30 (1988).

¶ 81 Defendant asks this court to consider the issue as plain error. The plain error doctrine can

be used in criminal cases to review unpreserved error in two situations: “if either [(1)] the

evidence was closely balanced or [(2)] the error was of such magnitude that the defendant was

denied a fair trial.” People v. Hindson, 301 Ill. App. 3d 466, 473-74, 703 N.E.2d 956, 962-63

(1998) (citing People v. Petitt, 245 Ill. App. 3d 132, 139, 613 N.E.2d 1358, 1365 (1993)); People

v. Thompson, 238 Ill. 2d 598, 613, 939 N.E.2d 403, 413 (2010) (citing People v. Piatkowski, 225

20
Ill. 2d 551, 565, 870 N.E.2d 403, 410 (2007)). The defendant bears the burden of persuasion in

plain error review. Thompson, 238 Ill. 2d at 613 (citing People v. McLaurin, 235 Ill. 2d 478, 495,

922 N.E.2d 344, 355 (2009)).

¶ 82 Alternatively, defendant asks this court to find that he had ineffective assistance of trial

counsel because his attorney did not raise this issue in a posttrial motion. To prevail on an

ineffective-assistance-of-counsel claim, defendant must show that his attorney’s representation

was objectively unreasonable and that he was prejudiced by that representation. Strickland v.

Washington, 466 U.S. 668, 687 (1984). This standard requires a finding that it is reasonably

probable that the defendant would not have been convicted if his attorney had not committed

error. Id.

¶ 83 Defendant first argues that the trial court erred by admitting other pornographic

photographs of the victims, C.L. and Caleb Reber’s daughter, that were not connected to the

criminal charges filed against him. Here, the trial court found that the photographs at issue were

contemporaneous to, as well as similar to, the charged conduct. “Evidence of another crime ***

may be used only when the other crime has some threshold similarity to the crime charged. It is

this similarity which increases the relevance of the evidence ***.” People v. Bartall, 98 Ill. 2d

294, 310, 456 N.E.2d 59, 67 (1983). As the factual similarities increase between the crime

charged and the other crimes evidence proposed, the relevance or probative value also increases.

Id. Defendant does not contest these findings. Instead, he argues that while the trial court found

that the photographs at issue were probative, the court did not determine that the probative value

outweighed the prejudicial effect resulting from introduction of the extra photographs.

¶ 84 Here, the State asked the trial court to introduce numerous photographs—of the victims

specifically and of pornographic images of unknown persons generally. Having reviewed the

21
transcript of the hearing, we find that despite defendant’s arguments, the trial court very carefully

considered each photograph proposed by the State. With respect to the pornographic photographs

of other persons, the trial court limited those photographs to those depicting the identical sexual

act the defendant was charged with committing—digital penetration of the victim’s vagina. All

photographs involving any other sexual act were excluded as being not relevant and potentially

prejudicial. The photographs of the two victims were allowed because they portrayed both the

steps in the process of digital penetration as well as the reoccurrence of the acts between

defendant and C.L. The photographs depicted C.L. in several different pairs of shorts with her

underwear pulled aside by defendant’s hand and fingers. The photographs of the daughter of

defendant’s brother were similar in subject matter. The trial court understood that the balancing

test was required for admission, having stated the legal requirements on the record at the

beginning of the hearing. The court went through the test with all photographs not depicting the

two victims. However, when ruling on the photographs of the two victims, the court stated that

the photographs were contemporaneous in time and similar to the charged conduct and thus

should be admitted. The balancing test was not mentioned. The ruling would have been more

clear and certain if the court would have stated that the probative effect of the photographic

evidence outweighed the prejudice to the defendant. We find that the court should have

specifically made that supportive statement.

¶ 85 Even if we presume that the trial court’s overall balancing test consideration was

incomplete and potentially erroneous, courts have concluded that this type of error could be

harmless. See Johnson, 406 Ill. App. 3d at 812 (holding that admission of an uncharged sexual

assault was inadmissible but harmless because of the strength of the State’s case on the charged

crime). Furthermore, a trial judge is presumed to know the law, and on review, the appellate

22
court presumes that the trial judge followed applicable law unless the record indicates otherwise.

People v. Groel, 2012 IL App (3d) 090595, ¶ 43, 970 N.E.2d 1259. On the basis of the trial

court’s careful concern for and consideration of all statutory requirements for admission of the

photographs, including the balancing test, we find the court’s omission of the balancing test in its

stated ruling on these photographs was harmless error.

¶ 86 We do not find that the “error” was of such magnitude that the defendant was denied a

fair trial. Hindson, 301 Ill. App. 3d at 473-74. Defendant elected to waive his right to a jury trial.

In light of that decision, we presume that the trial judge applied the proper standards in

consideration of the photographic evidence. Groel, 2012 IL App (3d) 090595, ¶ 42. Furthermore,

the evidence in this case was strong. All of the videos and photographs were discovered on

defendant’s work laptop. Defendant admitted to these sexual actions during his police interview.

The victim, C.L., was able to identify her clothing and her body from the videos and the one

photograph. Other witnesses identified defendant’s bathroom as the scene of one of the videos of

C.L., and defendant’s hand and wedding ring in another photograph. While defendant’s attorney

did not raise this issue in his posttrial motion, we also do not conclude that defendant was

prejudiced by this failure. Based on the strength of the State’s case, we do not find that there is a

reasonable probability that without that “error,” the outcome of the case would have been

different. Strickland, 466 U.S. at 687.

¶ 87 Defendant alternatively alleges that the trial court conducted a mini-trial on the

uncharged pornography, and thus he was denied a fair trial. For the same reasons stated in

response to his argument that the trial court erred in admitting those photographs, we conclude

that defendant’s argument is meritless. Here, the trial court explained on the record its concern

and understanding that a hearing on other acts and/or crimes evidence should not be a mini-trial.

23
As stated earlier in this opinion, a trial judge is presumed to know the law, and this court

presumes that the trial judge followed all applicable law. Groel, 2012 IL App (3d) 090595, ¶ 43.

From our review of the record, we find that the trial judge only allowed those photographs

necessary to “illuminate the issue for which the other crime was introduced.” Nunley, 271 Ill.

App. 3d at 432.

¶ 88 We find that the other acts and/or crimes photographs introduced into evidence

established a pattern of conduct relevant to the defendant’s late night sexual interactions with

young females while asleep on his sofa. Accordingly, the trial court’s introduction of these other

photographs was proper, and we affirm the convictions.

¶ 89 Sentencing

¶ 90 Defendant also argues that his due process rights were violated at sentencing and thus he

was denied a fair sentencing hearing because the trial court considered evidence outside of the

record—that in the trial judge’s experience a young victim of criminal sexual assault would

suffer psychological harm. There was no evidence presented at sentencing that C.L. was

psychologically harmed by the assault. Defendant argues that his sentence should be vacated and

that a new sentencing hearing be awarded. As with the first issue, defendant did not raise this

issue in his posttrial motion, and therefore we could consider the matter as forfeited. Enoch, 122

Ill. 2d at 186. He again asks this court to consider the issue as plain error.

¶ 91 We find that defendant’s argument fails in that the evidence in this case was not closely

balanced as necessary for plain error review. See Hindson, 301 Ill. App. 3d at 473-74 (citing

Petitt, 245 Ill. App. 3d at 139). In addition, the trial judge’s consideration of possible future

psychological harm to the victim was not erroneous.

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¶ 92 We have already found that the State presented a strong case against the defendant.

Defendant essentially admitted these acts during his interview. He expressed confusion about

why he committed these actions against C.L., and referenced his compulsion in doing so. The

trial court heard testimony about the pattern of allowing C.L. to spend the night. Defendant and

C.L. would stay awake late at night watching movies or playing video games. Defendant’s wife

went to bed, leaving her sister and her husband alone in the living room. Defendant was

identified in the videos and photograph involved in the criminal charges. C.L. identified herself

in the videos and photograph. The videos and photographs were found on defendant’s work

laptop. In short, the evidence in this case was not “close.”

¶ 93 The remaining alternative for plain error review would require a finding that the trial

court committed a grave error that denied the defendant a fair trial. Here, the trial court discussed

its knowledge that C.L. had not been aware that she was being sexually assaulted because she

was asleep. However, subsequent to the discovery of the photographs and videos on defendant’s

work laptop, C.L. became aware of what defendant had done to her. The trial judge noted that

although C.L. seemed fine, his experience with child victims of sexual assaults indicated that she

could experience difficulties in the future. Accordingly, the trial judge considered possible future

psychological harm as an aggravating factor in determining defendant’s sentences.

¶ 94 Psychological trauma to a victim may be considered as an aggravating factor without

direct evidence of trauma. People v. Burton, 102 Ill. App. 3d 148, 154, 429 N.E.2d 543, 547-48

(1981) (citing People v. Lloyd, 92 Ill. App. 3d 990, 416 N.E.2d 371 (1981)). In People v. Burton,

the appellate court concluded that the trial court properly considered that the two victims were

very small, frightened, insecure, and “damaged,” and that the psychological trauma to the

victims should be considered at sentencing. Id. at 153-54; see also People v. Calva, 256 Ill. App.

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3d 865, 875, 628 N.E.2d 856, 864 (1993) (court may infer psychological trauma when the victim

of a sexual assault is a juvenile); People v. Huddleston, 212 Ill. 2d 107, 135, 816 N.E.2d 322,

338 (2004) (stating that “aside from any physical injury a child may suffer ***, children who are

sexually assaulted are subject to chronic psychological problems that may be even more

pernicious” (emphases in original)).

¶ 95 A trial court’s sentence is entitled to great deference and weight. People v. Mischke, 2018

IL App (2d) 160472, ¶ 14, 109 N.E.3d 366 (citing People v. Latona, 184 Ill. 2d 260, 272, 703

N.E.2d 901, 908 (1998)); People v. Coleman, 166 Ill. 2d 247, 258, 652 N.E.2d 322, 327 (1995).

Where the sentence imposed by the trial court is within the applicable statutory range, the

reviewing court should not disturb the sentence unless it concludes that the trial court abused its

discretion. Coleman, 166 Ill. 2d at 258; People v. Jones, 168 Ill. 2d 367, 373-74, 659 N.E.2d

1306, 1308 (1995).

¶ 96 We have reviewed the sentencing hearing transcript and considered defendant’s argument

and conclude that the trial court’s consideration of possible psychological damage to C.L. was

appropriate. At the sentencing hearing, the court heard the testimony of H.S., who testified about

the years of her sexual relationship with defendant beginning when she was 11 years of age. She

testified, in part, to her own psychological damage resulting from this relationship. In light of

this testimony, and the trial court’s own experience, consideration of possible psychological

harm to C.L. in the future was not erroneous.

¶ 97 We affirm the trial court’s sentences and conclude that the sentences do not represent an

abuse of the court’s discretion.

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¶ 98 CONCLUSION

¶ 99 For the reasons stated in this opinion, we affirm the defendant’s convictions and

sentences.

¶ 100 Affirmed.

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2019 IL App (5th) 150439

NO. 5-15-0439

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

Opinion Filed: April 16, 2019
______________________________________________________________________________

Justices: Honorable Melissa A. Chapman, J.

Honorable David K. Overstreet, P.J., and
Honorable Judy L. Cates, J.
Concur
______________________________________________________________________________

Attorneys Michael J. Pelletier, State Appellate Defender, Jacqueline L. Bullard,
for Deputy Defender, Amanda S. Kimmel, Assistant Appellate Defender,
Appellant Office of the State Appellate Defender, Fourth Judicial District, 400 West
Monroe Street, Suite 303, P.O. Box 5240, Springfield, IL 62705-5240
______________________________________________________________________________

Attorneys Hon. Michael M. Havera, State’s Attorney, Christian County Courthouse,
for 101 South Main Street, Taylorville, IL 62568; Patrick Delfino, Director,
Appellee Patrick D. Daly, Deputy Director, Kelly M. Stacey, Staff Attorney, Office
of the State’s Attorneys Appellate Prosecutor, 730 East Illinois Highway
15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
______________________________________________________________________________