specially concurring:
I agree with the majority’s holding that the defendant’s conviction in this case is not barred by double jeopardy. I write separately to highlight the differences between this case and Brener, a case in which I was on the panel.
As the majority notes, the relevant facts in Brener were quite different from those in this case. The defendant in Brener engaged in one drunken journey that occurred over slightly more than one hour. That one journey happened to cross two county lines and create different harms in various counties. Nevertheless, it is well established that, under Illinois law, a single episode of alcohol-impaired driving constitutes one continuous act. Brener, 357 Ill. App. 3d at 871, citing People v. Quigley, 183 Ill. 2d 1, 10-11 (1998). Moreover, the very factors we find determinative today — the existence (or nonexistence) of an intervening act, the time interval between the commission of the two offenses, and whether the conduct occurred in the same location— dictated that we find the defendant’s conduct in Brener to be a single act for purposes of double jeopardy. The defendant in Brener drove nonstop (and so there was no intervening act); the various portions of his drive that took place in the different counties occurred within approximately an hour; and the fact that his drive crossed county lines and created different harms was simply happenstance, in that there was no evidence that his intent (searching for his brother’s broken-down motorcycle) varied as he drove from point to point. It was in the context of these facts that Brener described the amount of time, the distance ultimately covered, and the existence of different victims in different counties as “immaterial.” Brener, 357 Ill. App. 3d at 871. Brener should not be read as derogating the application of these factors, which are properly considered as part of the six-factor Baity test.
The facts here are far different from those in Brener. Although the defendant was convicted of possessing (in New Mexico) the same pornographic video that he had earlier created (in Illinois), I find it indisputable that the two offenses involve separate conduct. 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, in the same way that the production of the marijuana in Wagers encompassed the simultaneous possession of it. See State v. Bertsch, 707 N.W.2d 660, 666 (Minn. 2006) (where possession and dissemination of pornography took place at the same time, prosecution of both offenses violated double jeopardy). Here, however, the possession of the pornographic video was separated from the creation of it by the passage of more than a year and the defendant’s decision to take it with him when he moved from Illinois to New Mexico. The majority rightly applies the analysis in Flaar, 366 Ill. App. 3d at 689, which focuses on the defendant’s retention of the pornographic material over time as demonstrating a conscious choice to commit a separate criminal act, rather than a continuation of the original conduct. 381 Ill. App. 3d at 523-24. In my view, it is this separate intent by the defendant to commit the new offense of possession, long after the offense of production was completed, that distinguishes this case from the single episode of conduct at issue in Brener, and thus I would not speculate, as the majority does, on what our position would be if one episode of drunken driving were to extend to Milwaukee. I simply join the majority in holding that, on the facts before us today, the offenses of which the defendant was convicted in New Mexico and Illinois were based on separate conduct and therefore do not violate the statutory prohibition against double jeopardy.