NOTICE 2025 IL App (5th) 250670-U NOTICE Decision filed 11/12/25. The This order was filed under text of this decision may be NO. 5-25-0670 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Moultrie County. ) v. ) No. 25-CF-41 ) SCOTTY L. BUXTON, ) Honorable ) Gary A. Webber, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court. Presiding Justice McHaney and Justice Boie concurred in the judgment.
ORDER
¶1 Held: The circuit court’s orders granting the State’s verified petition to deny pretrial release and denying the defendant’s motion for relief are affirmed.
¶2 The defendant, Scotty Buxton, appeals from the July 25, 2025, denial of his motion for
relief and immediate release and the June 27, 2025, order of the circuit court of Moultrie County
that granted the State’s petition to deny him pretrial release.
¶3 I. BACKGROUND
¶4 On June 26, 2025, the defendant was charged with one count of disseminating child
pornography, a Class X felony (count I), and one count of possession of child pornography, a Class
2 felony (count II). 720 ILCS 5/11-20.1(a)(2), (6) (West 2024). On June 27, 2025, the State filed
a verified petition to deny the defendant pretrial release based upon the defendant being charged
1 with a qualifying sex offense and that the defendant’s pretrial release would pose a real and present
threat to the safety of any person or persons or the community. The matter proceeded to a hearing
on the State’s petition on the same day.
¶5 At the hearing, the State proffered that on January 31, 2025, the Illinois Internet Crimes
Against Children Task Force received a tip of an uploading of suspected child pornography via
KIK, an online social messenger platform, occurring on December 4, 2024. Special Agent
Hettinger with the Illinois State Police investigated the claim, and determined that the video did
depict child pornography. The video file was uploaded to an account and email address that was
discovered to belong to the defendant. Through a search warrant, it was discovered that the
defendant downloaded the video file and delivered it to at least one other user. The defendant’s
account also showed messages seeking additional child pornographic material. Special Agent
Hettinger located the defendant at a local church youth group and conducted a noncustodial
interview. The defendant admitted that he used his cell phone to receive and share child
pornography with other KIK users. The defendant stated that he had accessed child pornography
at least 25 prior times for sexual gratification.
¶6 The State argued that the defendant admitted to committing detainable offenses. Further,
as to dangerousness, the State said:
“[C]hild pornography would not exist were there not a need and demand for it. Therein,
the Defendant has on at least 25 times that he admitted created that demand, and there is
no question that irreparable harm that is done, both physically and emotionally, to victims
when such videos are produced and disseminated.”
¶7 The State argued that in order for the defendant to possess child pornography, child sexual
abuse has to occur, and the children in the videos have already endured abuse as a result of the
2 demand. The State said that the defendant’s actions cause potential harm and actual harm to child
victims.
¶8 The State argued that no conditions would mitigate the real and present threat because there
are no resources to stop a person on home confinement from accessing the internet and further
pursuing child pornography. Because no conditions exist to mitigate the threat, the State requested
the defendant be detained.
¶9 The defendant then proceeded to argument. Defense counsel stated:
“[We] do not contest that it’s a detainable offense. We do not contest that there is a
real and present threat to the community or persons in the community for purposes
of this hearing. We also do not contest that the proof is evident or the presumption
great that the defendant committed the offense.”
The defendant only argued that there were conditions available to mitigate any risk. The defendant
argued that he is 59 years old, married, and has no criminal history. He self-surrendered due to the
warrant for his arrest and has lived in the area for the majority of his life. Further, the defendant
scored a 0 on the Virginia Pretrial Risk Assessment Instrument—Revised (VPRAI). The defendant
stated that he would agree to any pretrial terms, including electronic home monitoring, no access
to the internet, no contact with minor children, mental health evaluation and treatment, or sex
offender evaluation and treatment. Additionally, the defendant’s father-in-law offered to allow the
defendant to reside with him, and installed protection on all his devices and removed the computer
from his home. His father-in-law also agreed to report any violations to authorities. The defendant
argued that these conditions would mitigate the risk the defendant posed.
¶ 10 The circuit court stated:
3 “I certainly agree with the prosecutor when a defendant admits to engaging in
activity, that creates the demand for child pornography, which this Defendant has
admitted to engaging in a couple dozen times and supplying others who wish to
receive that type of material, they not only create a demand for it, but that creates a
demand for child abuse, child sexual abuse more specifically, and encourages that
behavior.”
The circuit court stated that no available conditions would mitigate the risk of the defendant
accessing additional child pornography because he cannot have someone watching over his
shoulder continuously. The circuit court additionally stated that it was concerned with a mental
health or addiction issue contributing to the defendant’s desire to view child pornography. The
circuit court found that no conditions of pretrial release would mitigate the risk of harm.
¶ 11 The defendant filed a motion for relief on July 8, 2025. The motion argued that the State
did not prove, by clear and convincing evidence, that no conditions or combination of conditions
could mitigate any danger the defendant posed. The motion stated that the defendant resides in the
area and has for 23 years, is married, is a veteran, and was employed before he became disabled 7
years ago. Further, the defendant scored a 0 on the VPRAI risk assessment, and would be able to
live with his father-in-law if released, subject to conditions such as no internet access.
¶ 12 The hearing on the motion for relief was held on July 25, 2025. During the hearing, the
defendant stood on the contents of the motion and reiterated that the conditions outlined in the
motion would sufficiently mitigate any risk to the community. The State argued that the circuit
court correctly denied the defendant pretrial release during the initial hearing, and asked the court
to deny the motion for relief. The circuit court stated that it did consider all the factors listed in the
motion, and that in addition to the charge itself, the court considered that the “defendant’s behavior
4 with regard to the dissemination of child pornography does create a risk to the community.”
Further, the suggested conditions do not mitigate the risk of danger created by the defendant’s
actions. The circuit court denied the motion for relief. The defendant then timely appealed.
¶ 13 II. ANALYSIS
¶ 14 The defendant filed his motion for relief on July 8, 2025. The motion for relief argued that
the State failed to meet its burden of proving by clear and convincing evidence that no conditions
or combination of conditions can mitigate the real and present threat to the safety of any person or
persons. The Office of the State Appellate Defender (OSAD) was appointed to represent the
defendant. OSAD filed a memorandum pursuant to Illinois Supreme Court Rule 604(h)(7) (eff.
Apr. 15, 2024) on behalf of the defendant. On appeal, the defendant argues that the State failed to
prove by clear and convincing evidence that no conditions could mitigate the risk of danger posed
by the defendant. The defendant also argues that the State failed to prove the defendant’s release
“would pose the type of real and present threat to safety contemplated” by the pretrial detention
statute. Further, trial counsel was ineffective for failing to raise and preserve this issue for appeal.
¶ 15 Pretrial release—including the conditions related thereto—is governed by Public Act 101-
652, § 10-255 (eff. Jan. 1, 2023). See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023) (amending
various provisions of the Act); Rowe v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay and setting
effective date as September 18, 2023). A defendant’s pretrial release may be denied only in certain
statutorily limited situations. 725 ILCS 5/110-6.1 (West 2024). Upon filing a timely, verified
petition requesting denial of pretrial release, the State has the burden to prove by clear and
convincing evidence that the proof is evident or the presumption great that the defendant has
committed a qualifying offense, that the defendant’s pretrial release poses a real and present threat
to the safety of any person or the community or a flight risk, and that less restrictive conditions
5 would not avoid a real and present threat to the safety of any person or the community and/or
prevent the defendant’s willful flight from prosecution. Id. § 110-6.1(e), (f). The State or the
defendant may present evidence to the trial court by way of proffer based upon reliable
information. Id. § 110-6.1(f)(2). The trial court may order a defendant detained pending trial if the
defendant is charged with a qualifying offense, and the trial court concludes the defendant poses a
real and present threat to the safety of any person or the community (id. § 110-6.1(a)(1)-(7)) or
there is a high likelihood of willful flight to avoid prosecution (id. § 110-6.1(a)(8)).
¶ 16 Our standard of review of pretrial release determinations is twofold. Where the trial court
is asked to consider the testimony of live witnesses, and make factual findings, such as the State’s
burden of presenting clear and convincing evidence that conditions of pretrial release would not
protect any person or the community, the defendant has a high likelihood of willful flight to avoid
prosecution, or the defendant failed to comply with previously ordered conditions of pretrial
release, our standard of review is the manifest weight of the evidence. People v. Morgan, 2025 IL
130626, ¶ 54. “A finding is against the manifest weight of the evidence only if the opposite
conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the
evidence presented.” People v. Deleon, 227 Ill. 2d 322, 332 (2008). Alternatively, where the parties
to a pretrial detention hearing proceed solely by proffer or submission of documentary evidence,
this court stands in the same position as the trial court and may conduct its own independent review
of the proffered evidence, thus reviewing the record de novo. Morgan, 2025 IL 130626, ¶ 54. In
the present matter, the parties proceeded solely by proffer, so we will employ de novo review.
¶ 17 The pertinent statute provides a nonexhaustive list of factors courts should consider in
determining whether a defendant poses a real and present threat to the safety of any individual(s)
or the community. Those factors include (1) the nature and circumstances of the offenses charged,
6 including whether they are crimes of violence or involve a weapon; (2) whether the defendant’s
prior criminal history indicates “violent, abusive, or assaultive behavior, or lack of such behavior”;
(3) the identity of any individual to whose safety the defendant may pose a threat and the nature
of any such threat; (4) the defendant’s age and physical condition; (5) the age and physical
condition of the victim or complaining witness; (6) whether the defendant possesses or has access
to any weapons; (7) whether the defendant was on probation, parole, or mandatory supervised
release when arrested on the underlying charges or any other offense; and (8) any other factor that
has a reasonable bearing on the defendant’s propensity for violent, abusive, or assaultive behavior
(725 ILCS 5/110-6.1(g)(1)-(9) (West 2024)). No one factor is determinative, and the court must
base its decision on an individualized assessment. People v. Atterberry, 2023 IL App (4th) 231028,
¶ 15 (citing 725 ILCS 5/110-6.1(f)(7) (West 2022)).
¶ 18 Once a court determines that the defendant poses a threat to the safety of any individual or
the community, the trial court must determine whether the State has met its burden by clear and
convincing evidence, what pretrial release conditions, “if any, will reasonably ensure the
appearance of a defendant as required or the safety of any other person or the community and the
likelihood of compliance by the defendant with all the conditions of pretrial release.” 725 ILCS
5/110-5(a) (West 2024). In reaching its determination, the trial court must consider (1) the nature
and circumstances of the offense charged; (2) the weight of the evidence against the person; (3) the
history and characteristics of the person; 1 (4) the nature and seriousness of the specific, real, and
1 The defendant’s history and characteristics include: “the defendant’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past relating to drug or alcohol abuse, conduct, *** criminal history, and record concerning appearance at court proceedings,” as well as “whether, at the time of the current offense or arrest, the defendant was on probation, parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state.” 725 ILCS 5/110-5(a)(3)(A), (B) (West 2024). 7 present threat to any person that would be posed by the person’s release; and (5) the nature and
seriousness of the risk of obstructing or attempting to obstruct the criminal justice process. Id. The
statute lists no singular factor as dispositive. See id. The nature and circumstances of the
underlying offense is “just one factor to consider in determining whether the threat posed can be
mitigated by conditions of release.” People v. Lopez, 2025 IL App (2d) 240709, ¶ 19.
¶ 19 We now consider, as the circuit court did, the record presented by the State. The defendant
challenges that no conditions would mitigate his risk. The defendant specifically states several
possible conditions, such as home confinement with electronic monitoring, no access to the
internet, no contact with minors, a mental health evaluation and treatment, and sex offender
evaluation and treatment. Further, the defendant could live with his father-in-law, who put
protection on his devices and removed his computer from the home. His father-in-law would have
“zero tolerance” and report any violations to the authorities. While these are potential conditions
available, we agree with the circuit court that they do not mitigate the risk posed by the defendant.
¶ 20 The defendant asks this court to follow People v. Reamy, an unpublished case from the
Second Appellate District, in which a defendant was charged with possession and dissemination
of child pornography and released with conditions. 2024 IL App (2d) 240084-U, ¶¶ 4, 9. The
appellate court affirmed the release, stating that the conditions would mitigate the risk, not
completely prevent it, and that was sufficient. Id. ¶¶ 18-19.
¶ 21 This court, however, has previously held that conditions such as home confinement, lack
of internet access, and avoiding minors can be insufficient to mitigate the risk posed by possessing
and disseminating child pornography. People v. Schrock, 2024 IL App (5th) 240507-U, ¶¶ 31, 37.
In addition to the charged offenses, the defendant admitted that he accessed child pornography at
least 25 more times. While the defendant’s father-in-law has offered to allow the defendant to live
8 with him, the circuit court found, and we agree, that the defendant already went undetected by his
wife, despite living with her, while he accessed child pornography. The defendant utilized an
anonymous website to access and request child pornography, as well as sent it to other users. The
circuit court correctly stated that it could not order someone to be watching “over his shoulder” at
all times to mitigate the risk of him accessing additional child pornography.
¶ 22 The defendant’s possession of child pornography continues to harm the sexually abused
children used to create it. “Possession of child pornography is inextricable from the act of creating
it, and ‘[t]he abuse endured by these children, created for those, like defendant, who consume child
pornography, is not a hypothetical possibility that may or may not come to pass. It has already
happened.’ ” People v. Popovich, 2025 IL App (4th) 250196, ¶ 21 (quoting People v. Jackson,
2024 IL App (4th) 240441-U, ¶ 18). The circuit court correctly stated that the defendant by
possessing child pornography “creates a demand for child abuse, child sexual abuse more
specifically, and encourages that behavior.” Based on the specific facts of the case, the nature and
circumstances of the offenses, and the defendant’s background and characteristics, we agree with
the circuit court that no condition, or combination of conditions, would mitigate the risk of the
defendant possessing or disseminating child pornography.
¶ 23 The defendant also argues that possession and dissemination of child pornography does
not pose a real and present threat to the children in the community. He argues that trial counsel
was ineffective for failing to raise the issue and preserve it for appellate review. During the initial
detention hearing, defense counsel stated, “We do not contest that there is a real and present threat
to the community or persons in the community for purposes of this hearing.” In the defendant’s
motion for relief, he argues that the State failed to prove that the defendant would not comply with
any available pretrial conditions offered during the initial hearing. The defendant does not argue
9 that he does not pose a real and present threat to the community at any point before the circuit
court.
¶ 24 Rule 604(h)(2) states, “Upon appeal, any issue not raised in the motion for relief, other
than errors occurring for the first time at the hearing on the motion for relief, shall be deemed
waived.” Ill. S. Ct. R. 604(h)(2) (eff. Apr. 15, 2024). Allowing parties to raise an issue for the first
time on appeal would “allow a party to circumvent the rules and ignore the importance of first
placing the argument before the trial court.” People v. Drew, 2024 IL App (5th) 240697, ¶ 44.
Because the defendant did not contest the fact that he posed a real and present threat to the
community during the initial hearing or the motion for relief hearing, he has waived the argument.
¶ 25 The defendant additionally argues that trial counsel was ineffective for failing to raise the
issue of dangerousness and preserve it for appeal. “To prevail on a claim of ineffective assistance
of counsel, a defendant must demonstrate that counsel’s performance was deficient and that the
deficient performance prejudiced the defendant.” People v. Cathey, 2012 IL 111746, ¶ 23. This
requires a defendant to show “that counsel’s performance was objectively unreasonable under
prevailing professional norms and that there is a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’ ” Id. (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)). A failure to satisfy either Strickland prong
“precludes a finding of ineffective assistance of counsel.” People v. Henderson, 2013 IL 114040,
¶ 11. As such, failure to establish prejudice is a sufficient basis to deny a claim of ineffective
assistance of counsel. People v. Jackson, 2020 IL 124112, ¶ 91.
¶ 26 As we found in Drew, “Here, at the pretrial release hearing stage of the proceeding,
defendant cannot show a reasonable probability that the result of the criminal process would have
been different because no plea deal is at issue and defendant’s trial has not been held.” Drew, 2024
10 IL App (5th) 240697, ¶ 37. Further, ineffective assistance of counsel claims fail to show prejudice
when a defendant’s pretrial release was delayed based on the actions of counsel. Id. Therefore, we
hold that the defendant’s claim of ineffective assistance of counsel fails because no prejudice can
be shown.
¶ 27 Accordingly, we agree with the circuit court that no condition or combination of conditions
can mitigate the risk posed by the defendant, and pretrial detention is appropriate. The circuit
court’s orders of June 27, 2025, and July 25, 2025, are affirmed.
¶ 28 III. CONCLUSION
¶ 29 Based on the foregoing reasons, we affirm the circuit court’s orders of June 27, 2025, and
July 25, 2025.
¶ 30 Affirmed.