People v. Dryer

2021 IL App (2d) 190187

Opinion

2021 IL App (2d) 190187 No. 2-19-0187 Opinion filed March 17, 2021 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Boone County. ) Plaintiff-Appellee, ) ) v. ) No. 15-CF-246 ) SETH A. DRYER, ) Honorable ) C. Robert Tobin III Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Jorgensen concurred in the judgment and opinion.

OPINION

¶1 After a jury trial, defendant, Seth Dryer, was convicted of two counts of sexual exploitation

of a child (720 ILCS 5/11-9.1(a-5) (West 2014)) and seven counts of child pornography 1 (720

1 In the proceedings below, the parties and the trial court were under the mistaken belief

that defendant’s conduct should be classified as “aggravated” child pornography. However the

“aggravated child pornography” statute, found at 720 ILCS 5/11-20.1B, was repealed on January

1, 2013, by Pub. Act 97-995 (eff. Jan. 1, 2013). Therefore, we abstain from using the word

“aggravated” when discussing these counts. 2021 IL App (2d) 190187

ILCS 5/11-20.1(a)(1)(i), (a)(1)(iii), (a)(1)(iv), (a)(3), (a)(4) (West 2014)). 2 On appeal, defendant

makes two arguments. First, defendant argues that his statutory speedy trial right (see 720 ILCS

725 ILCS 5/103-5(a) (West 2014)) was violated regarding the child pornography charges. Second,

defendant argues that he was denied effective assistance of counsel when his trial counsel failed

to file a motion to dismiss the child pornography charges on speedy trial grounds. We affirm.

¶2 I. BACKGROUND

¶3 Between July 7, 2015, and July 9, 2015, defendant—who lived in Pasadena, Texas, at the

time—was involved in a series of interactions through the Internet, via a gaming system, with two

minors, C.H. and W.M., who lived in Boone County. Consequently, on October 21, 2015,

defendant was arrested and charged by complaint with two counts of predatory criminal sexual

assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2014)), a Class X felony, and two counts of

sexual exploitation of a child (720 ILCS 5/11-9.1(a-5) (West 2014)), a Class 4 felony.

¶4 On November 13, 2015, a Boone County grand jury returned an indictment charging

defendant with a total of 13 separate counts. Counts I and II alleged that defendant committed the

offense of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2014)). 3

2 Throughout the record and on appeal, the parties and the trial court incorrectly cite

sections 5/11-20.1(a)(3)(i) and 5/11-20.1(a)(4)(i) for several of these charges. However, sections

5/11-20.1(a)(3)(i) and 5/11-20.1(a)(4)(i) do not exist under the Criminal Code of 2012. We provide

the correct statutory citations for the offenses with which defendant was charged. 3 As defendant states in his brief, counts I and II seemed to be based on a theory of

accountability, as defendant and the minor victims were in different states when the alleged crimes

occurred.

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Counts III and IV alleged that defendant committed the offense of sexual exploitation of a child

(720 ILCS 5/11-9.1(a-5) (West 2014)). Those two counts provided that defendant knowingly

persuaded C.H. and W.M. to “remove [their] clothing for the purpose of the sexual arousal of

[defendant].”

¶5 Counts V through XII all alleged that defendant committed the offense of indecent

solicitation of a child (720 ILCS 5/11-6(a), (a-5) (West 2014)). Specifically, counts V and VI

alleged that defendant “knowingly solicited C.H. *** to perform an act of sexual penetration”

involving his penis in W.M.’s mouth and anus. Counts VII and VIII alleged that defendant, “with

the intent that the offense of predatory criminal sexual assault of a child be committed, knowingly

discussed by means of the Internet,” acts of sexual penetration with C.H. and W.M. Counts IX and

X alleged that defendant knowingly solicited C.H. to perform an act of sexual penetration

“involving a screwdriver and C.H.’s anus.” Counts XI and XII alleged that defendant knowingly

solicited C.H. to perform acts of sexual penetration “involving a pen and C.H.’s anus.”

¶6 Finally, count XIII of the indictment alleged that defendant committed the offense of

aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d) (West 2014)) by committing an act of

sexual conduct with C.H., “involving the penis of C.H. and the hand of W.M.”

¶7 Defendant reportedly fought extradition before being taken into custody in Boone County

on December 13, 2015. The case was repeatedly continued while the parties negotiated and

litigated pretrial motions. On August 4, 2017, nearly two years after defendant was taken into

custody, the State filed new charges against defendant in a superseding indictment. The first 13

counts in the superseding indictment were identical to those in the original indictment. However,

the superseding indictment also contained seven new counts of child pornography (720 ILCS 5/11-

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20.1(a)(1)(i), (a)(1)(iii), (a)(1)(iv), (a)(3), (a)(4) (West 2014)) 4 resulting from the same incidents

as described in the original indictment.

¶8 Specifically, counts XIV through XX of the superseding indictment alleged that defendant

“produced a film or other similar visual portrayal” of C.H. and W.M. engaged in various acts of

“sexual penetration,” “masturbation,” and acts of “lewd fondling, touching, or caressing.” The

superseding indictment also indicated that defendant solicited or coerced C.H. and W.M. to appear

in the visual portrayal.

¶9 Defense counsel agreed to more continuances until a jury trial was scheduled for November

5, 2018. On October 31, 2018, the State announced that it would be dismissing counts I, II, and V

through XIII.

¶ 10 The evidence adduced at trial showed that, beginning in 2014 or 2015, C.H. began playing

video games via his Xbox 360 gaming console with an individual who identified himself through

the gamertag identification, “My Name is K1ll.” 5 Investigators later traced this gamertag to an

Xbox 360 console belonging to defendant, who eventually admitted to using the gamertag. Aside

from playing online games with C.H., defendant would also send C.H. in-game currency and

engage with C.H. in video chats using a camera that was connected to their consoles. However,

defendant would block his camera during these chats so that C.H. was unable to see him. C.H. and

defendant spoke daily.

4 As noted earlier, we omit the incorrect citations appearing in the record and cite the

correct statutes that defendant was charged with violating. 5 The trial transcripts contained in the record indicate that this gamertag was also referred

to as “Kill” or “My Name is Kill.”

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¶ 11 On the morning of July 9, 2015, defendant and C.H. were playing a video game together

before defendant convinced C.H. to begin masturbating in view of his Xbox camera. Afterwards,

defendant asked C.H. to invite a friend to his house, so C.H. called W.M., who visited shortly

thereafter. Defendant convinced the two minors to engage in oral and anal sex with each other,

while defendant watched over the Xbox’s camera. Defendant advised the minors on how to

position themselves so that his view would not be obstructed. However, unbeknownst to C.H. and

W.M., their activities were being recorded by a nanny cam that C.H.’s mother had placed in his

bedroom.

¶ 12 Later that morning, while C.H. was sleeping, his mother reviewed the nanny cam footage.

Upon seeing C.H. and W.M. begin to engage in sexual activities with one another, she brought the

footage to local police. The police arrived at C.H.’s residence later in the day, while C.H. was

engaged in another video chat with defendant. When C.H. told defendant that there was an

unmarked vehicle outside of his house, defendant immediately ended the chat and blocked C.H.

from contacting him again.

¶ 13 At the conclusion of the trial, a jury found defendant guilty of all counts. After denying

defendant’s motion for a new trial, the court sentenced defendant to an aggregate total of 52 years’

incarceration. Defendant timely appeals.

¶ 14 II. ANALYSIS

¶ 15 On appeal, defendant argues that (1) he was denied his right to a speedy trial regarding the

child pornography charges and (2) he was denied effective assistance of counsel when his trial

counsel failed to move to dismiss the child pornography charges on speedy trial grounds. Because

we find that defendant’s right to a speedy trial was not violated, we need address only his first

argument.

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¶ 16 Pursuant to the speedy trial rule, “[e]very person in custody in this State for an alleged

offense shall be tried by the court having jurisdiction within 120 days from the date he or she was

taken into custody unless delay is occasioned by the defendant.” 725 ILCS 5/103-5(a) (West 2014).

This 120-day speedy trial period is tolled whenever the defendant causes a period of delay or

otherwise agrees to a delay. People v. Woodrum, 223 Ill. 2d 286, 299 (2006). Where a defendant

is not tried within this statutory period, he or she is entitled to release from custody and dismissal

of the pending charges. Id.

¶ 17 However, a speedy trial analysis “becomes more complicated when [a] defendant is

charged with multiple, but factually related, offenses at different times.” People v. Williams, 204

Ill. 2d 191, 198 (2003). When a speedy trial analysis therefore becomes intertwined with the

principles of compulsory joinder, delays that may be attributed to a defendant in connection with

original charges are not always attributable to the defendant on subsequently filed charges.

Woodrum, 223 Ill. 2d at 299.

¶ 18 To determine whether delays attributed to a defendant with respect to original charges

should remain attributable to that defendant for subsequent charges, courts have utilized the

Williams rule, which provides:

“ ‘Where new and additional charges arise from the same facts as did the original

charges and the State had knowledge of these facts at the commencement of the

prosecution, the time within which trial is to begin on the new and additional charges is

subject to the same statutory limitation that is applied to the original charges. Continuances

obtained in connection with the trial of the original charges cannot be attributed to

defendants with respect to the new and additional charges because these new and additional

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charges were not before the court when those continuances were obtained.’ ” People v.

Phipps, 238 Ill. 2d 54, 66 (2010) (quoting Williams, 94 Ill. App. 3d at 248-49).

¶ 19 In subsequent decisions, our supreme court has found that the Williams rule should not be

utilized when “the original charging instrument gave the defendant sufficient notice of the

subsequent charges to prepare adequately for trial on those charges.” (Internal quotation marks

omitted.) People v. Moffett, 2019 IL App (2d) 180964, ¶ 30. The purpose of this caveat is to

preserve the Williams rule’s intent—to prevent trials by ambush. Id. Therefore, where the original

charges provide a defendant with sufficient notice of subsequently filed charges, the subsequent

charges are not “new and additional” for purposes of a speedy trial analysis, meaning that any

delays attributed to the defendant for the original charges may also be attributed to that defendant

for the later charges. Id.

¶ 20 In determining whether subsequent charges are “new and additional” for speedy trial

purposes, “[t]he focus is on whether the original charging instrument gave the defendant sufficient

notice of the subsequent charges to prepare adequately for trial on those charges.” (Internal

quotation marks omitted.) Id. “[T]he issue *** is not whether defendant had adequate notice of his

[or her] *** charges prior to trial.” Id. ¶ 47. A defendant can be presumed to have received

sufficient notice of subsequent charges when the later charges allege “the same conduct” as the

original charging instrument. Phipps, 238 Ill. 2d at 68. Such a situation is evident where the

original and subsequent charges contain the same essential elements and penalties as one another.

Id. However, variances in elements or penalties between charging instruments’ original and

subsequent charges do not automatically render the latter as “new and additional” charges. Moffett,

2019 IL App (2d) 180964, ¶ 41; People v. Staake, 2017 IL 121755, ¶ 44.

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¶ 21 For example, in Moffett, the defendant was originally charged by complaint with

aggravated battery for allegedly causing bodily harm to a correctional officer by biting the officer’s

fingers. 2019 IL App (2d) 180964, ¶ 5. Over one month later, the State filed an indictment that

charged the defendant with two counts resulting from the same incident. Id. ¶ 9. Although the first

count of the indictment was identical to the aggravated battery charge from the complaint, the

second count of the indictment differed by alleging that defendant’s contact with the officer was

“of an insulting or provoking nature.” (Internal quotation marks omitted.) Id. After several months

had passed, the defendant sought to dismiss the second count of the indictment, arguing that she

had not been tried on that charge within the statutory 120-day period. Id. ¶ 12. According to the

defendant, because that count was a “new and additional” charge, any delays in the speedy trial

period attributed to her on count I of the complaint could not be attributed to her on count II of the

indictment. Id.

¶ 22 After analyzing whether “the original charging instrument gave the defendant sufficient

notice of the subsequent charges” (internal quotation marks omitted), this court determined that

count II of the indictment was not a “new and additional” charge, because both charges were based

on the same conduct. Id. ¶¶ 43, 50. In reaching this conclusion, we noted that “not all variances in

the elements between original and subsequent charges will render the latter new and additional

charges.” Id. ¶ 41. Therefore, despite the fact that count II added an element not described in the

original aggravated battery charge—contact of an insulting or provoking nature—this element was

nonetheless inherent in the original charge because “imagination strains to conjure a scenario in

which the deliberate infliction of bodily harm is not insulting or provoking.” Id. ¶ 43. For this

reason, we concluded that the defendant was provided with sufficient notice of count II. Id. In

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reaching this decision, we also noted that both charges had the same classification and penalty. Id.

¶ 44.

¶ 23 Here, in resolving defendant’s arguments, we must determine whether the child

pornography charges that make up counts XIV through XX were “new and additional” charges

subject to compulsory joinder. Phipps, 238 Ill. 2d at 67. However, because the parties do not seem

to dispute that the charges in both indictments were subject to compulsory joinder, we are left to

determine whether counts XIV through XX were “new and additional charges” pursuant to the

Williams rule. We review this legal question de novo. Id.

¶ 24 A comparison of the original and the superseding indictments shows that both charging

instruments were based on the same conduct. The charges outlined in the original indictment

specified that defendant “knowingly solicited” C.H. and W.M. to remove their clothes and perform

sexual acts “for the purpose of the sexual arousal of *** defendant.” The original indictment also

specified that this solicitation took place “by means of the Internet.” From this language, it is clear

that defendant was able to watch C.H. and W.M. in order for him to be “sexually aroused” by their

actions. Taken in conjunction with the allegations that defendant used the Internet to solicit the

minors, it is unquestionable that the State sought to prove that defendant watched C.H. and W.M.

remotely.

¶ 25 The superseding indictment—which contained all the original charges set forth in the

original indictment—reiterated this same conduct. 6 While the child pornography charges in counts

6 As the State points out, defendant has conceded in his brief that his apparent “use of the

Xbox gaming system to communicate by video chat with C.H. and W.M.” formed the basis of the

child pornography charges.

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XIV through XX of the superseding indictment additionally alleged that defendant “produced a

film or other similar visual portrayal” in which C.H. and W.M. were coerced into appearing, as we

have already discussed, these facts were already implicit in the original indictment. Therefore,

because these later counts naturally followed from the conduct alleged in the original indictment,

defendant was inherently on notice of the child pornography charges. See Moffett, 2019 IL App

(2d) 180964, ¶ 43. 7

¶ 26 While we therefore find that the original indictment’s references to the Internet and

defendant’s sexual gratification create an unavoidable inference that defendant produced a visual

medium of the minor’s sexual activities, defendant disputes this conclusion. According to

defendant, because only 4 of the original 13 charges mention the Internet communications

involved, we should not consider the references to the Internet communications in determining

whether defendant was sufficiently placed on notice of the child pornography charges.

¶ 27 However, defendant has provided no authority suggesting that our consideration of the

charging instruments must be constrained in such a manner. Therefore, defendant’s argument is

forfeited. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018); Bank of New York Mellon v. Rogers, 2016

IL App (2d) 150712, ¶ 32. Forfeiture aside, our research on the subject suggests that no such

authority exists. Instead, pertinent case law provides only that we must consider “whether the

7 We also note that, after reading the original indictment, defendant should have known

that the State would need to show that defendant communicated with the minors over a visual

medium in order to prove the allegations contained in the original charges. Because this visual

medium provided the impetus for the child pornography charges, defendant definitively had

sufficient notice of those later charges.

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original indictment gave defendant adequate notice to prepare his defense to the subsequent

charge.” (Emphasis added.) Phipps, 238 Ill. 2d at 69. Because this language does not mention the

individual charges making up an original indictment, a plain reading of the language suggests that

an original indictment should be considered holistically. Therefore, it is irrelevant whether every

single charge in the original indictment provided its own, independent notice of the superseding

¶ 28 We also note that, if defendant’s arguments rang true, the speedy trial analysis—as laid out

by Williams, Woodrum, Phipps, and their progeny—would be thrown into disarray. By suggesting

that the Williams rule applies unless every individual charge in an original indictment provides

independent notice of superseding charges, defendant effectively suggests that all charges in an

original indictment must completely mirror one another. However, this would be impossible in

cases where an original indictment charged a defendant with separate offenses, because each

offense would necessarily contain differing information to detail each offense’s distinct elements.

See People v. Grieco, 44 Ill. 2d 407, 409 (1970) (holding that every charge in an indictment must

specifically state the elements of their respective offense). Therefore, under defendant’s proposed

framework, the Williams rule would always apply in any case where an original charging

instrument contained separate, distinct offenses, regardless of whether any single portion of the

original indictment succeeded in providing notice of superseding charges. For these reasons,

defendant’s argument necessarily fails.

¶ 29 Defendant also suggests that our decision in People v. Boyd, 363 Ill. App. 3d 1027 (2006),

warrants a different result. However, defendant’s argument is misguided. In Boyd, the defendant

was originally charged with armed robbery, aggravated battery, and aggravated battery with a

firearm. Id. at 1034. Some 116 days after the original charges were filed, the State additionally

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charged defendant with several home invasion charges. Id. Consequently, we were tasked with

determining whether defendant’s trial counsel was ineffective for failing to invoke defendant’s

speedy trial right regarding the home invasion charges. Id. at 1033-34. However, in deciding this

issue, we noted that the “parties correctly [agreed] that all of the charges [were] subject to

compulsory joinder *** and that the home invasion counts [constituted] ‘new and additional

charges.’ ” Id. at 1036. Because these facts were not in dispute, there was no need to analyze the

language of any of the charging instruments to determine whether the home invasion charges were

“new and additional.” Id. In fact, while deciding Boyd, we never cited the language of either

charging instrument. Instead, we focused on whether the trial delays were attributable to the State

or to the defendant. Id. at 1038.

¶ 30 Here, the parties do not dispute to whom the various delays were attributable; we are

therefore concerned only with whether the language of the indictments rendered the later charges

“new and additional.” Because Boyd provides no meaningful analysis regarding that issue, the case

does not apply here.

¶ 31 Defendant also argues that the disparate penalties for the original and the superseding

charges renders the latter “new and additional” for speedy trial purposes. We disagree. As the State

points out (and as defendant acknowledges), counts I and II of the original indictment already

subjected defendant to convictions of two Class X felonies. If defendant were convicted of these

counts, he would have been subject to a natural life sentence, similar to the sentence he ultimately

received. 720 ILCS 5/11-1.40(b)(1.2) (West 2014). Therefore, defendant’s contentions are

factually incorrect.

¶ 32 Nonetheless, defendant attempts to negate this conclusion by arguing “that the predatory

criminal sexual assault charges might have been much more difficult for the State to prove.”

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However, defendant has provided no case law suggesting that such a speculation has any relevance

to our analysis. Because defendant did not cite any supporting authority for this claim, it is

forfeited. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018); Rogers, 2016 IL App (2d) 150712, ¶ 32.

¶ 33 Defendant also argues that the variances between the elements of the original and the

superseding indictment’s charges suggest that the child pornography charges were “new and

additional.” Again, we disagree. As we noted earlier, variances in elements between original and

subsequent charging instruments is a factor to consider when determining the applicability of the

Williams rule, but, taken alone, this factor is not determinative of the issue. Moffett, 2019 IL App

(2d) 180964, ¶ 41. Instead, the main inquiry is whether the original charges provided the defendant

with notice of the impending charges. Id. ¶ 30. Again, the child pornography charges here naturally

followed from the conduct described in the original indictment. Therefore, any variation in the

elements in the charging instruments’ charges is insufficient to overcome the fact that defendant

had notice of the child pornography charges. See id. ¶ 43.

¶ 34 While we therefore conclude this analysis based solely on the charging instruments and

the natural inferences those instruments provide, as a final observation, we are compelled to note

that a fair reading of the record suggests that defendant improperly seeks to use the speedy trial

statute as a sword to dismiss the serious charges levied against him rather than as a shield to

prevent trial by ambush. People v. Ingram, 2020 IL App (2d) 180353, ¶ 14.

¶ 35 On April 7, 2017, the State first told defendant that a superseding indictment was

forthcoming. On that date, the State asked the court to delay a hearing on defendant’s motion to

dismiss, for “general purposes of negotiation.” On April 21, 2017, the State tendered an unfiled

copy of the subsequent charges to defense counsel. At that time, the State also indicated that it

would “follow up with a written offer based on the new counts” and once again asked to postpone

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defendant’s motion to dismiss so that the parties could conduct a Rule 402 conference (see Ill. S.

Ct. R. 402 (eff. July 1, 2012)). By June 5, 2017, the parties reportedly held the conference.

Although the record is unclear as to what exactly was discussed, it seems as if defendant refused

to agree to a plea deal, because on August 4, 2017, the State filed its additional charges. Now, after

his decision to forgo a plea deal in lieu of a trial ultimately proved to be unwise, defendant seeks

to use the speedy trial statute offensively, and not for its intended purpose—to prevent trial by

ambush.

¶ 36 Because the original indictment provided defendant with sufficient notice of the

supplementary charges included in the superseding indictment, the child pornography charges

were not “new and additional” for purposes of a speedy trial analysis. Therefore, defendant’s

speedy trial right was not violated regarding the child pornography charges. Furthermore, because

no speedy trial violation occurred, defendant’s ineffective-assistance claims, which are based

solely on the purported speedy trial violation, necessarily fail.

¶ 37 III. CONCLUSION

¶ 38 For the reasons stated, we affirm the judgment of the circuit court of Boone County.

¶ 39 Affirmed.

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No. 2-19-0187

Decision Under Review: Appeal from the Circuit Court of Boone County, No. 15-CF-246; the Hon. C. Robert Tobin III, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Lilien, and Elena B. Penick, of State for Appellate Defender’s Office, of Elgin, for appellant. Appellant:

Attorneys Tricia L. Smith, State’s Attorney, of Belvidere (Patrick for Delfino, Edward R. Psenicka, and Stephanie Hoit Lee, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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