People v. Rubio

2023 IL App (1st) 211078
No. 1-21-1078
Opinion filed February 22, 2023
Third Division
______________________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 18 CR 14597
)
DENNIS RUBIO, ) Honorable
) Samuel J. Betar, III,
Defendant-Appellant. ) Judge presiding.

JUSTICE BURKE delivered the judgment of the court, with opinion.
Presiding Justice McBride and Justice Reyes concurred in the judgment and opinion.

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
No. 1-21-1078

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: lg gsm_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

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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

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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 XI.

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¶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 “touch[ing] [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, II, 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. 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

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¶ 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.

¶ 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 Ill. 2d 539,

544 (2010). However, “if defendants orally move to reduce their sentences without objection to

this procedure by the State, the reviewing court may address such issues upon appeal despite

defendants’ failure to file a written postsentencing motion.” People v. Shields, 298 Ill. App. 3d

943, 950-51 (1998); see also People v. Davis, 356 Ill. App. 3d 725, 731 (2005) (following Shields).

¶ 14 Such is the case here. During defendant’s sentencing hearing, defense counsel

unsuccessfully requested the trial court merge counts I and IV under the one-act, one-crime

doctrine. Following the court’s announcement of defendant’s sentence, defense counsel made an

oral motion to reconsider the sentence, a procedure to which the State did not object. Because

defendant raised the one-act, one-crime doctrine issue at sentencing and the State did not object to

defense counsel’s oral motion to reconsider the sentence, we may address defendant’s one-act,

one-crime doctrine claim on appeal despite defendant’s failure to file a written postsentencing

motion. See Davis, 356 Ill. App. 3d at 731; Shields, 298 Ill. App. 3d at 950-51.

¶ 15 In People v. King, 66 Ill. 2d 551 (1977), our supreme court held that “a criminal defendant

may not be convicted of multiple offenses when those offenses are all based on precisely the same

physical act.” People v. Coats, 2018 IL 121926, ¶ 11 (citing King, 66 Ill. 2d at 566). The

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prohibition became known as the one-act, one-crime doctrine. Id. Whether the doctrine has been

violated is a question of law we review de novo. Id. ¶ 12. To determine if a violation occurred, we

utilize a two-step analysis. People v. Reveles-Cordova, 2020 IL 124797, ¶ 12. First, we determine

whether the defendant’s conduct involved a single act or multiple acts. Id. If the defendant’s

conduct involved a single act, multiple convictions are improper. Id. Conversely, if we conclude

that the defendant’s conduct involved multiple acts, we must proceed to the second step of the

analysis and determine whether any of the offenses are lesser-included offenses. Id. If one of the

offenses is a lesser-included offense of the other, multiple convictions are improper. Id.

¶ 16 An “ ‘[a]ct’ ” is defined as “any overt or outward manifestation which will support a

different offense.” King, 66 Ill. 2d at 566. In determining whether the defendant’s conduct

consisted of a single act or multiple acts, this court has used several factors: (1) whether there was

an intervening event; (2) how much time elapsed between successive parts of the defendant’s

conduct; (3) whether the identity of the victim was the same; (4) how similar the defendant’s

conduct was; (5) whether the location of the conduct remained the same; and (6) the intent of the

State, as evidenced by the charging instrument. People v. Baity, 125 Ill. App. 3d 50, 52-54 (1984);

see also People v. Dunnavan, 381 Ill. App. 3d 514, 519 (2008); People v. Cobern, 236 Ill. App. 3d

300, 303 (1992); People v. Crum, 183 Ill. App. 3d 473, 490 (1989). Although “the King doctrine

[is] the guiding principle” on what constitutes an act, our supreme court has “acknowledge[d] the

utility of the six-factor test [of Baity] in many instances.” People v. Sienkiewicz, 208 Ill. 2d 1, 8

(2003).

¶ 17 A. Single Act or Multiple Acts

¶ 18 Based on the principles of the one-act, one-crime doctrine, defendant argues that his

convictions for creation of child pornography (count I) and possession of child pornography (count

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IV) arose out of the same physical act of using his cell phone to record an instance of sexual

conduct with E.K. in her bedroom. According to defendant, after recording the video, he

necessarily possessed the video concurrently on his cell phone. Meanwhile, the State posits that

defendant’s convictions were not based upon the same physical act, as his act of creation and his

act of possession were separate physical acts despite their temporal and spatial proximity. The

State also asserts that defendant committed several separate acts of sexual conduct within the

single video that formed the basis for counts I and IV. In supporting the latter argument, the State

relies on Reyes, 2020 IL App (2d) 170379, the case the trial court relied on in denying defendant’s

request for a merger of counts I and IV under the one-act, one-crime doctrine.

¶ 19 In Reyes, 2020 IL App (2d) 170379, ¶¶ 2, 10, 84, the defendant was charged with various

offenses, including two counts of creation of child pornography based on one, three-minute long

video he took with his cell phone. The first count of child pornography was based on the video

showing the defendant’s penis in contact with the minor’s vagina, and the second count was based

on the video showing the minor’s vagina unclothed. Id. ¶ 84. During the defendant’s bench trial,

the State introduced the video recovered from his cell phone as well as still photographs from that

video showing the minor’s vagina and his penis in contact with the minor’s vagina. Id. ¶ 38. After

trial, the trial court found the defendant guilty of various offenses, including the two offenses for

creation of child pornography. Id. ¶ 43. On appeal, the defendant contended that one of those two

convictions had to be vacated under the one-act, one-crime doctrine. Id. ¶ 45. In rejecting that

claim, the appellate court observed that, “while there is certainly a common act—recording—[the]

defendant produced two distinct pornographic images by recording the victim’s vagina and a penis

touching the victim’s vagina.” Id. ¶ 86. Thus, “[e]ither act, standing alone, would support a

conviction.” Id. And merely because the acts were closely related did not preclude two convictions.

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Id. Consequently, the appellate court affirmed the defendant’s two convictions for creation of child

pornography. Id. ¶¶ 87, 89.

¶ 20 However, we do not find Reyes analogous to the instant case. First, in Reyes, the defendant

was charged with two counts of creation of child pornography whereas, in the instant case,

defendant was charged with one count of creation of child pornography and one count of

possession of child pornography based on the same video. Second, in Reyes, the charging

instrument clearly delineated what acts of the defendant formed the basis for his two counts of

creation of child pornography whereas, in the instant case, the indictment broadly referenced the

entire video defendant created and never specifically delineated any specific acts therein.

¶ 21 With the inapplicability of Reyes determined, we turn to two more similar cases,

Dunnavan, 381 Ill. App. 3d 514, and People v. Flaar, 366 Ill. App. 3d 685 (2006). Although both

cases involved double jeopardy claims, “[o]ur supreme court defines an ‘act’ in the context of

double jeopardy the same as it does in the context of the one-act, one-crime doctrine.” Id. at 688

(citing Sienkiewicz, 208 Ill. 2d at 7 (citing King, 66 Ill. 2d 551)).

¶ 22 In Dunnavan, 381 Ill. App. 3d at 515, the defendant was charged with sexual exploitation

(possession of child pornography) in New Mexico based on him possessing a videotape depicting

him engaged in sexual activity with a minor. He later pled no contest to the charge and was

sentenced in New Mexico. Shortly thereafter, the defendant was charged in Illinois with creation

of child pornography based on the same videotape. Id. The defendant moved to dismiss the charge

based on double jeopardy principles, arguing that, when he made the videotape, he necessarily had

to possess it. Id. The trial court denied the defendant’s motion, and following his trial, he was

found guilty of creation of child pornography. Id. at 516. Thereafter, he appealed his conviction

based on double jeopardy principles. Id.

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¶ 23 On appeal, this court initially observed that the preliminary question for a double jeopardy

analysis was whether the New Mexico and Illinois prosecutions were based on the same act. Id. at

517-19. The court noted the definition of an act, as stated in King, and then utilized the six-factor

test of Baity to determine whether the defendant’s conduct constituted one or more acts. Id. at 519.

First, the court observed that the defendant was charged with possessing the videotape over a year

after he created it, and during that time period, he left his job in Illinois and moved to New Mexico.

Id. at 519-20. As such, not only did an intervening event exist, but there was a significant amount

of time between the creation of the video and his possession of it. Id. Second, the court noted that

the defendant created the video while located in Illinois yet possessed the video in New Mexico,

which “strongly support[ed] the conclusion that the offenses were founded on different acts.” Id.

at 520. Given this, the court found that the first, second, and fifth Baity factors favored the

conclusion that the offenses were predicated on different acts. Id. at 519. The court next determined

that the remaining factors of the Baity test were inconclusive. Id. at 520. “Given the long time

between the creation of the child pornography and defendant’s being found with it in his

possession, during which time defendant moved to another state, as well as the physical distance

separating the events,” the court held that the two offenses were based on different acts and double

jeopardy did not bar his Illinois conviction. Id.

¶ 24 In Flaar, 366 Ill. App. 3d at 686, in June 2003, the defendant sent pornographic images of

children via e-mail from his home in Kendall County to an undercover police officer in Cook

County. Over a month later, the police executed a search warrant on defendant, resulting in him

being charged with four counts of possession of child pornography in Kendall County. Id. A month

after that, the defendant was charged with three counts of dissemination of child pornography in

Cook County. Id. The defendant pled guilty to the possession charges in Kendall County and then

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sought to dismiss the charges in Cook County, in part, based on double jeopardy principles. Id. at

687. The trial court, however, denied his motion, and the defendant appealed. Id. On appeal, the

appellate court asserted that the critical question was “whether [the] defendant’s act of e-mailing

a pornographic image to Cook County established a separate and distinct possession from the

possession [he] pled guilty to in Kendall County.” Id. at 687-88. After noting the definition of an

act, as stated in King, the court concluded that the defendant’s conduct constituted two separate

acts. Id. at 688-89. According to the court, the defendant’s first act was transferring a copy of an

image located on his computer to the officer in Cook County through e-mail. Id. at 689. The

defendant’s second act was retaining a copy of the original image on his computer for over a

month. Id. As such, “both acts of possession were separate and distinct temporally and physically,”

as “[t]here was a possession attendant to defendant’s original dissemination, and there was a

separate possession offense occurring over a month later.” Id. And it was inconsequential that “the

images constituting these separate possessions were identical in appearance.” Id. What was

consequential was the time period that had passed between the dissemination and subsequent

possession, which “indicate[d] a conscious decision to commit to a separate criminal act, i.e., a

new volitional departure toward a different criminal end.” Id. As a result, the appellate court held

that the Cook County prosecution did not violate the prohibition against double jeopardy. Id.

¶ 25 Applying the Baity factors to the instant case, many of them indisputably favor the finding

of a single act. First, E.K. was the victim throughout, and second, the location of defendant’s

conduct never changed, as he was always in E.K.’s bedroom. Third, although defendant’s conduct

in the video was not identical, it was similar throughout in that he made contact with E.K.’s

clothing and buttocks. However, the fourth factor—the intent of the State, as evidenced by the

charging instrument—is inconclusive. Under the facts of this case, count I required the State to

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prove that defendant filmed any child whom he knew or reasonably should have known to be under

the age of 13 where such child is “actually *** engaged in any act of sexual penetration or sexual

conduct with any person.” See 720 ILCS 5/11-20.1(a)(1)(i), (c-5) (West 2018). Count IV required

the State to prove that defendant “with knowledge of the nature or content thereof, possesse[d] any

film, videotape, *** or other similar visual reproduction” of any child whom he knew or

reasonably should have known to be under the age of 13 where such child is “actually *** engaged

in any act of sexual penetration or sexual conduct with any person.” See id. § 11-20.1(a)(6),

(a)(1)(i), (c-5). Based on the language of the charging instrument, counts I and IV did not assert

what specific act of sexual conduct defendant allegedly performed on E.K., showing the State’s

intent to charge defendant’s conduct as a single act. However, during the State’s closing argument

in support of convictions on counts I and IV, it highlighted various acts of sexual conduct

defendant committed on E.K., including defendant running his thumb down her buttocks and

touching her clothing. See People v. Crespo, 203 Ill. 2d 335, 343-44 (2001) (considering “the

State’s theory at trial, as shown by its argument to the jury” in whether the State intended to charge

the defendant’s conduct as a single act).

¶ 26 Turning to the remaining factors of whether there was an intervening event and how much

time elapsed between successive parts of the defendant’s conduct. Based on the data associated

with the videos defendant took on his cell phone, he recorded the first video at 10:50 and 48

seconds in the evening. That video was approximately 46 seconds long, meaning defendant

stopped recording the video at 10:51 and 34 seconds in the evening. Sixteen seconds later,

defendant recorded the second video, a video that lasted two seconds, meaning defendant stopped

recording the video at 10:51 and 52 seconds in the evening. Three second later, defendant recorded

the final video, which lasted approximately 11 seconds and during which he was confronted by

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Ericka. Following defendant being confronted by Ericka and her attempt to grab defendant’s

phone, he “kept pushing buttons” on the phone. But then, he became involved in a quarrel with

Ericka and then Jason, during which Jason recovered defendant’s phone. From that point on,

defendant never regained possession of his phone. Incontrovertibly, not much time elapsed

between defendant’s creation, i.e., recording, of the video on his cell phone and his possession of

that video until Jason confiscated it and turned it over to the police. And so we recognize the

timeline of events in this case was significantly more compressed than in Dunnavan, where more

than a year had elapsed between a defendant’s creation and possession of child pornography, or

Flaar, where more than a month had elapsed between a defendant’s dissemination and possession

of child pornography.

¶ 27 However, like Dunnavan, there were intervening events in the instant case. Notably, after

defendant stopped recording the first video, he apparently took a 16-second break and began

recording another video. Thereafter, he took another quick break and began recording a third video.

These intervening events support the conclusion that defendant’s conduct constituted multiple acts.

First, defendant used his cell phone to record a video, necessitating in some manner that he initiated

the recording function on his phone. And second, defendant retained possession of that video after

he created it beyond the possession attendant to its creation. To be sure, after ending the recording

of the first video, defendant made no effort to delete the video. He did not have a moment of

realization that what he had just done was immoral and criminal and attempt to rid himself of that

video. Instead, defendant continued on and created another video. These actions demonstrate his

intent to retain possession of the first possession and “indicate[ ] a conscious decision to commit

to a separate criminal act, i.e., a new volitional departure toward a different criminal end.” Flaar,

366 Ill. App. 3d at 689. Moreover, after recording the second video, defendant again made no

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effort to delete the first video. Rather, he kept possession of it and proceeded to record a third

video. Although defendant claims that his act of pushing the buttons on the cell phone when

confronted by Ericka was possibly an attempt to delete one, or all, of the videos, based on the

circumstances, his act could only be construed as an attempt to destroy evidence of his wrongdoing

rather than having an epiphany that he made a mistake. Otherwise, he would have deleted, or

attempted to delete, the videos before being confronted by Ericka, not after being confronted.

¶ 28 While many of the Baity factors favor the finding of a single act, and the factors are

undoubtedly helpful, our supreme court has “caution[ed] that a court must not lose sight of the

forest for the trees” as “[t]he definition of an ‘act’ under the King doctrine remains simply what

this court stated in King: ‘any overt or outward manifestation which will support a different

offense.’ ” People v. Rodriguez, 169 Ill. 2d 183, 188 (1996) (quoting King, 66 Ill. 2d at 566). And

here, defendant’s decision to film additional videos “indicate[d] a conscious decision to commit

to a separate criminal act, i.e., a new volitional departure toward a different criminal end.” Flaar,

366 Ill. App. 3d at 689. In other words, at the moment defendant stopped recording the first video,

his possession of it was attendant to his creation of it. But he retained that video and went on to

record additional videos of E.K. Undoubtedly, his acts were proximate in both time and location,

and in order to possess the video, he had to first create the video. However, “separate acts do not

become one act merely because of proximity in time and location” and “the interrelationship of

separate acts does not prevent multiple convictions.” People v. Marzonie, 2018 IL App (4th)

160107, ¶ 40. The lapse of time in this case, even if brief, coupled with the intervening events of

additional recordings, provided sufficient time to reflect between creation and retention such that

both acts would constitute criminal conduct. See King, 66 Ill. 2d at 566 (concluding that an

“ ‘[a]ct’ ” is “any overt or outward manifestation which will support a different offense”).

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¶ 29 Nevertheless, defendant highlights Justice Gilleran Johnson’s special concurrence in

Dunnavan, 381 Ill. App. 3d at 527 (Gilleran Johnson, J., specially concurring), where she stated:

“Had the defendant been arrested for possessing the video at the same time that it was made, his

argument would have some force: in that situation, he would be correct that his creation of the

video necessitated his simultaneous possession of it ***.” Initially, we note that, while special

concurrences are persuasive, they are not binding authority. See People v. Holt, 372 Ill. App. 3d

650, 653 (2007). But Justice Gilleran Johnson’s special concurrence does not speak to the situation

involved in our case. In her hypothetical, the police caught the defendant in the act, so to speak,

meaning there was no time for reflection between the creation of the video and the retention, i.e.,

possession, of the video. In contrast to such a situation, the facts of the instant case demonstrate

that defendant had time to reflect between the creation of the video and his retention, i.e.,

possession, of that video because he went on to take additional videos of E.K. Had the third video,

in which Ericka interrupted defendant, formed the basis for the creation and possession charges

and convictions, defendant might have a persuasive argument. But the third video did not form the

basis for counts I and IV.

¶ 30 Still, defendant likens his creation and unavoidable possession of child pornography to

situations in which defendants manufacture contraband and necessarily possess that contraband.

Defendant highlights People v. Wagers, 255 Ill. App. 3d 497 (1994) and argues that, in those

situations, a conviction for manufacture of contraband precludes a conviction for possession of the

same contraband. In that case, during the execution of a search warrant of a garage, the police

found 57 marijuana plants and a canvas tarp containing marijuana. Id. at 500. As a result, two

defendants were charged with unlawful production of cannabis sativa plants, unlawful possession

of cannabis, unlawful manufacture of cannabis, and unlawful possession of cannabis with intent

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to deliver. Id. at 498. Following trial, both defendants were convicted of all four offenses. Id. at

503. On appeal, they contended, and the State conceded, that the trial court improperly convicted

them of unlawful possession of cannabis and unlawful possession of cannabis with intent to

deliver. Id. In analyzing the claim of error, the appellate court observed “that there were two

separate groupings of marijuana constituting two separate acts: (1) the marijuana in the garage and

(2) the marijuana being grown.” Id. In turn, these two acts supported both defendants’ convictions

for unlawful production of cannabis and unlawful manufacture of cannabis. Id. However, the court

asserted that “the charges of unlawful possession of cannabis and unlawful possession of cannabis

with the intent to deliver could only be predicated on these same two acts which support the

convictions for unlawful production of cannabis and unlawful manufacture of cannabis.” Id.

Consequently, the defendants’ convictions for unlawful possession of cannabis and unlawful

possession of cannabis with intent to deliver had to be vacated. Id.

¶ 31 In Wagers, the defendants’ possession of cannabis and possession of cannabis with intent

to deliver occurred simultaneously with their production of cannabis sativa plants and

manufacturing of cannabis just like the situation contemplated by Justice Gilleran Johnson’s

special concurrence in Dunnavan. In fact, in her special concurrence, she compared the

circumstances of Wagers to her hypothetical where the defendant was arrested for possessing child

pornography at the same time that it was created and noted “the production of the marijuana in

Wagers encompassed the simultaneous possession of it.” Dunnavan, 381 Ill. App. 3d at 527

(Gilleran Johnson, J., specially concurring). In contrast to Wagers and Justice Gilleran Johnson’s

hypothetical situation, which we have already discussed, defendant’s possession of child

pornography in the instant case was separate and distinct from his creation of child pornography

because he created the video that formed the basis for counts I and IV and then created two

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additional videos. In doing so, while there was a possession of child pornography attendant to his

creation of child pornography, there was nevertheless sufficient time to reflect between his creation

and his retention, i.e., possession, of the video such that both acts would constitute criminal

conduct. Consequently, defendant’s conduct consisted of multiple acts.

¶ 32 B. Lesser-Included Offense

¶ 33 Having concluded that defendant’s conduct involved multiple acts, we must proceed to the

second step of the one-act, one-crime doctrine analysis and determine whether possession of child

pornography is a lesser-included offense of creation of child pornography. See Coats, 2018 IL

121926, ¶ 12. In doing so, we utilize the abstract-elements approach. Id. ¶ 30. Under this approach,

we must examine the statutory elements of the two offenses in question. Reveles-Cordova, 2020

IL 124797, ¶ 13. “If all of the elements of one offense are included within a second offense and

the first offense contains no element not included in the second offense, the first offense is deemed

a lesser-included offense of the second.” People v. Miller, 238 Ill. 2d 161, 166 (2010). This

approach “is the strictest approach in the sense that it is formulaic and rigid, and considers ‘solely

theoretical or practical impossibility.’ ” Id. (quoting People v. Novak, 163 Ill. 2d 93, 106 (1994)).

Stated otherwise, “it must be impossible to commit the greater offense without necessarily

committing the lesser offense.” Reveles-Cordova, 2020 IL 124797, ¶ 13.

¶ 34 Turning to the elements of the offenses, we first look at count I, which charged defendant

with creation of child pornography under sections 11-20.1(a)(1)(i) and (c-5) of the Criminal Code

of 2012 (Code) (720 ILCS 5/11-20.1(a)(1)(i), (c-5) (West 2018)). In order to convict a defendant

under these subsections of the child pornography statute, the State has to prove that he

(1) “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” (2) any child whom he

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knows or reasonably should know to be under the age of 13 or any person with a severe or profound

intellectual disability (3) 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 animal.” Id. Count IV charged defendant with possession of child pornography

under sections 11-20.1(a)(6) and (c-5) of the Code (id. § 11-20.1(a)(6), (c-5)). In order to convict

a defendant under these subsections of the child pornography statute, the State has to prove that he

(1) possessed (2) with knowledge of the nature or content thereof (3) any film, videotape,

photograph, or other similar visual reproduction or depiction by computer (4) of any child or

person with a severe or profound intellectual disability whom the person knows or reasonably

should know to be under the age of 13 or to be a person with a severe or profound intellectual

disability (5) to be actually or by simulation engaged in any act of sexual penetration or sexual

conduct with any person or animal. Id.

¶ 35 When comparing the offenses, both possession of child pornography and creation of child

pornography contain different elements. Axiomatically, the offense of possession of child

pornography requires the defendant’s possession, whereas the offense of creation of child

pornography does not. And the offense of creation of child pornography requires the defendant

use some visual medium to depict the child pornography, whereas the offense of possession of

child pornography does not. As such, someone could commit the offense of creation of child

pornography without necessarily committing the offense of possession of child pornography. See

Reveles-Cordova, 2020 IL 124797, ¶ 13 (in order for an offense to be considered a lesser-included

offense, “it must be impossible to commit the greater offense without necessarily committing the

lesser offense”).

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¶ 36 Cases from other jurisdictions addressing similar facts have reached the same conclusion.

For instance, in United States v. Gomez-Diaz, 911 F.3d 931, 934 (8th Cir. 2018), the Eighth Circuit

Court of Appeals observed that “[p]ossession of child pornography includes at least one element

that production of child pornography does not: possession.” Therefore, the court concluded that

possession of child pornography is not a lesser-included offense of production of child

pornography. Id. Similarly, in State v. Foster, 591 S.W.3d 518, 521 (Mo. Ct. App. 2019), the

Missouri Court of Appeals addressed whether possession of child pornography is a lesser-included

offense of sexual exploitation of a minor. For the latter offense, the State had to establish that the

defendant “created child pornography or obscene material with a minor.” Id. at 523. The court

observed that “[p]roof of dominion or control over [child pornography],” i.e. possession, “is not

an element of sexual exploitation of a minor and proof of creation is not an element of possession

of child pornography.” Id. As such, the court concluded “that possession of child pornography is

not a lesser-included offense of sexual exploitation of a minor.” Id.

¶ 37 Nevertheless, in supporting his argument that possession of child pornography is a lesser-

included offense of creation of child pornography, defendant cites Dunnavan, 381 Ill. App. 3d 514,

and Flaar, 366 Ill. App. 3d 685. In Dunnavan, 381 Ill. App. 3d at 520, this court determined that,

because the defendant’s conviction of sexual exploitation (possession of child pornography) in

New Mexico was based on a different act than his conviction of creation of child pornography in

Illinois, his Illinois prosecution was not barred by double jeopardy principles. Given this finding,

this court did not need to “consider whether the New Mexico offense is a lesser-included offense

of the Illinois offense of child pornography.” Id. at 520-21. Because Dunnavan did not proceed

into a lesser-included offense analysis, defendant’s reliance on the decision is inapposite.

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¶ 38 In Flaar, 366 Ill. App. 3d at 687, this court observed that neither the State nor the defendant

contested that possession of child pornography was a lesser-included offense of dissemination of

child pornography. To this end, the court determined that the critical issue on appeal was whether

the “defendant’s act of e-mailing a pornographic image to Cook County” and allegedly committing

the offense of dissemination of child pornography “established a separate and distinct possession

from the possession [he] pled guilty to in Kendall County.” Id. at 687-88. Because Flaar involved

the offense of dissemination of child pornography, and not creation of child pornography—the

offense at issue in this case—we likewise find defendant’s reliance on the decision inapposite.

Because both possession of child pornography and creation of child pornography contain different

elements, and it is possible to commit the greater offense without necessarily committing the lesser

offense, possession of child pornography is not a lesser-included offense of creation of child

pornography. Accordingly, defendant’s convictions for both offenses can stand under King. See

Miller, 238 Ill. 2d at 176 (where the defendant’s conviction for retail theft was not a lesser-included

offense of burglary, both convictions could stand under King).

¶ 39 III. CONCLUSION

¶ 40 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 41 Affirmed.

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People v. Rubio, 2023 IL App (1st) 211078

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-CR-14597;
the Hon. Samuel J. Betar III, Judge, presiding.

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

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

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