People v. Gumila

• Decision Date: 06 December 2012
• Docket Number: No. 2–11–0761.,2–11–0761.
• Citation: 2012 IL App (2d) 110761,367 Ill.Dec. 182,981 N.E.2d 507
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Vernor GUMILA, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2012 IL App (2d) 110761

981 N.E.2d 507

367 Ill.Dec. 182

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

v.Vernor GUMILA, Defendant–Appellant.

No. 2–11–0761.

Appellate Court of Illinois,

Second District.

Dec. 6, 2012.

Jennifer B. Hulvat, Hulvat Law Firm, Oak Brook, IL, for appellant.

Joseph H. McMahon, State's Atty., Lawrence M. Bauer and Marshall M. Stevens, State's Attys. Appellate Prosecutor's Office, St. Charles, IL, for the People.

OPINION

Justice BIRKETT delivered the judgment of the court, with opinion.

[367 Ill.Dec. 184]¶ 1 Following a bench trial, defendant, Vernor Gumila, was convicted of possession of child pornography (720 ILCS 5/11–20.1(a)(6) (West 2008)). The physical evidence at trial consisted of (1) several photographic images forensically extracted from defendant's computer, which images defendant did not dispute constituted child pornography; and (2) the Internet browsing history for defendant's computer, which showed a history of visiting Web sites with names suggestive of child pornography. Defendant argues that the latter was improper other-acts evidence. He also argues that the evidence was insufficient to show that he knowingly and voluntarily possessed the images discovered on his computer. We reject both contentions and affirm.

¶ 2 I. BACKGROUND

¶ 3 On October 10, 2007, after the police executed a search warrant at the residence of Shawn Bowlden and seized items in his possession that constituted child pornography, the police asked defendant, Bowlden's roommate, for consent to search his camera and computer. Defendant gave consent, and a forensic analysis of the computer's hard drive revealed 13 photographic images that investigators and prosecutors determined were child pornography. Defendant was charged with 13 counts of child pornography under section 11–20.1(a)(6) of the Criminal Code of 1961 (Code) (720 ILCS 5/11–20.1(a)(6) (West 2008)), one count for each image.

[367 Ill.Dec. 185]¶ 4 At defendant's bench trial, the State called several police officers as well as Bowlden. St. Charles police officer Troy Peacock testified that, on October 10, 2007, he helped execute a search warrant at 929 Third Street in St. Charles. The subject of the warrant was Bowlden, who was present with defendant. Peacock informed defendant that the police were there because Bowlden was suspected of possessing child pornography. The police seized numerous items of pornography from Bowlden's bedroom and arrested him. About two hours later, Peacock returned to the residence with St. Charles police detective Christie Fry.¹ Peacock had been informed that defendant, too, was suspected of possessing child pornography. Peacock and Fry spoke to defendant and asked for consent to take and search his camera and computer. Defendant signed a consent form, and Peacock and Fry took defendant's camera and computer from his bedroom.

¶ 5 Bowlden testified that the October 2007 search of his bedroom led to child pornography charges against him. He pled guilty to the charges and was sentenced to probation, which he was still serving at the time of his testimony. In October 2007, Bowlden and defendant both were gymnastics instructors. They roomed together at 929 South Third Street in St. Charles. Each had his own bedroom and his own computer that he kept there. In October 2007, Bowlden was addicted to pornography, including child pornography, and used his computer to view images of pornography on the Internet. Bowlden testified that defendant kept his bedroom unlocked and had no password protection for his computer. Occasionally, Bowlden would take his computer into defendant's bedroom to use his modem for Internet access. Bowlden, however, never used defendant's computer.

¶ 6 Fry and St. Charles deputy police chief Steven Huffman described the events following defendant's relinquishment of his camera and computer. Huffman testified that defendant's computer was forensically examined by investigators on the afternoon of October 10. Later that afternoon, the examiners told Huffman that 13 images of child pornography were recovered from the computer's hard drive. That evening, Huffman and Fry went to defendant's place of work, a gymnastics studio, and arrested him for possession of child pornography. At the police station, defendant executed a Miranda waiver, following which Huffman and Fry had a discussion with defendant that fell into two stages. The first was an unrecorded discussion, or “pre-interview,” the second an audiotaped statement.

¶ 7 According to Huffman, the unrecorded discussion spanned 30 to 45 minutes. Fry testified to the specifics of the discussion:

“Q. Do you remember what the Defendant told you during that conversation?

A. Yes, I do.

Q. Can you briefly summarize it?

A. He basically—he told me that he was Shawn Bowlden's roommate at 929 South Third Street since about October 2006, and that he was pretty sure that Shawn Bowlden had not used his computer ever.

* * *

Q. And what did you ask him or what did he tell you about his own computer usage?

A. He said that on a daily basis he would go onto the Internet to look at pornography, and for about seven years he said he had been doing that, looking at adult pornography on his computer, and for about the past five years he had been looking at child pornography on his computer.

Q. Did you ask him, as it relates to the child pornography, and what sorts of images he was looking for?

A. He said that—I asked him if he was aware that the images he was looking at were children under the age of 17, and he said that he was. And when I asked him how he could tell that they were under the age of 17, he said because of their lack of physical development.

Q. Did you ask him whether or not he was looking for any particular age group depicted in the images?

A. I asked him what age group he was interested in, and he told me that it was between 13 and 15 because they were just starting to develop.

Q. Did he tell you how he went about accessing or looking at these images?

A. He went—he said that he went to adult and child pornography websites, and then he would click on whatever image was interesting to him.

Q. Did he ever say if he would return to these websites?

A. He said he would often return to the websites that he was interested in to revisit the same pictures that he liked.

Q. At the conclusion of your conversation with him, did he say anything about how he felt about looking at these images?

A. I asked him if he knew that looking at child abuse images under—you know, child pornography images, which is kids under the age of 17[,] was illegal, and he said he did know it was illegal and that it was wrong, and we did ask him if he wanted help with that problem, and he did state yes.”

¶ 8 Huffman was asked if either he or Fry “indicated to [defendant in the pre-interview] that the computer sometimes stores stuff automatically.” Huffman answered, “We may have. I don't recall.”

¶ 9 As for the recorded statement, both Fry and Huffman asked questions, but Huffman was the principal questioner. Both the recording and a transcript were admitted into evidence. The recording was played for the trial court but is not in the appellate record. In the transcript, defendant is first asked about his livelihood. He states that he has been a gymnastics instructor for about 15 years. He used to coach boys but now coaches only girls. His students range from age 7 to 18. The questions then turn to defendant's usage of his home computer, and he makes the following material statements:

(1) Defendant “start[ed] browsing for adult pornography” when he acquired his computer about five to seven years ago.

(2) “[E]veryday [ sic ]” at his home, defendant would “look at pornographic materials on [his] computer through the [I]nternet.”

(3) “[P]robably everyday [ sic ]” at his home, defendant would “brows[e] * * * for * * * pornographic images or brows[e] for porn on the [I]nternet.”

(4) Asked when he “start[e]d looking at * * * pornographic images of of [ sic ] girls under the age of 17,” defendant answers that he “[p]robably started running into that stuff right away.”

(5) Defendant would “come across images of * * * children or girls that [he] kn[e]w to be under the age of 17,” and even as young as 12.

(6) “[T]hese images were of naked girls under 17.”

(7) Defendant “clearly knew by there [ sic ] appearance that they were under the age of 17.”

(8) “When [defendant was] looking at images of girls [he] knew to be * * * younger than 17,” and as young as “12 & 13,” he knew this was “illegal” and “wrong.”

(9) Defendant does not “look for the web sites * * * specifically for children under 17.”

(10) Rather, he would “come across these images” by “looking at pictures,” and he would “click[ ] on” the images to open and view them.²

(11) Defendant never “save[d] the images on [the] hard drive on [his] computer,” but “assum[ed] that the computer does that on [its] own.”

(12) Defendant would “go[ ] back and look[ ] at the same images more than once,” because “you run through certain web sites [that] will have the same pictures on [them] over and over again.”

(13) Defendant would not “specifically go to that web site to view that image again,” but the image “may * * * pop up again.”

(14) Asked “how many times a week would [he] look at * * * pornographic images of children under the age of 17,” he replies, “As long as I run across them[,] so I guess everyday [ sic ].”

(15) Defendant has never printed or e-mailed any of the images he views on the Internet.

(16) He has never “paid * * * money for a subscription to any * * * pornographic web sites, adult or child.”

(17) Defendant has “[p]robably less than 100” “pornographic images of girls under the age of 17 * * * on [his] hard drive.”

(18) Defendant has never shared these images on his hard drive with anyone.

(19) Defendant uses America Online (AOL) accounts nal71 and vmyster120.

In what follows, we occasionally refer to portions of the...