NOTICE 2021 IL App (5th) 190199-U NOTICE Decision filed 06/08/21. The This order was filed under text of this decision may be NO. 5-19-0199 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for Rehearing or the disposition of IN THE limited circumstances allowed 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, ) Jefferson County. ) v. ) No. 18-CF-311 ) NATHAN R. HALL, ) Honorable ) Jerry E. Crisel, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________
JUSTICE VAUGHAN delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction is affirmed where any deficiencies in defense counsel’s performance did not undermine reliance on the trial outcome and defendant’s claims of prosecutorial misconduct revealed no error. The trial court did not abuse its discretion in refusing defendant’s lesser included offense jury instruction where there was no evidence that would allow the jury to rationally acquit the defendant of dissemination of child pornography.
¶2 Following a jury trial, defendant, Nathan R. Hall, was convicted of child
pornography (720 ILCS 5/11-20.1(a)(2) (West 2018)) and was sentenced to 20 years’
imprisonment. Defendant appeals, arguing that he had ineffective assistance of counsel,
he was denied a fair trial due to prosecutorial misconduct, and the trial court erred by
1 denying his request to instruct the jury on the lesser included offense of possession of
child pornography. For the following reasons, we disagree.
¶3 I. BACKGROUND
¶4 On July 12, 2018, defendant was charged with one count of child pornography
(id.), a Class X felony, in that he disseminated pornography involving a child he knew
was under the age of 13. On July 24, 2018, he was indicted by a grand jury for this
offense. Defense counsel was appointed. Defendant pled not guilty, and the case was set
for jury trial. The day before trial, the State moved to amend the bill of indictment to
replace “an act of masturbation” with “any act of sexual contact involving the mouth,
anus or sex organs of the child and the sex organs of another person.” The amendment
was granted over defendant’s objection.
¶5 At trial, the State’s first witness was Detective Bobby Wallace, a 15-year law
enforcement officer and member of the Internet Crimes Against Children Task Force.
Detective Wallace had specialized training in the investigation of online-based offenses
involving the exploitation of children and was certified to run investigative software
using a peer-to-peer network to search for child pornography files. He explained how
peer-to-peer networks allowed for sharing of downloaded files within the network and
further explained that while investigating child exploitation, he used software that
automatically downloaded the files detected by his software as child pornography. He
confirmed that his software used a “single source download” to limit the download from
one computer or one Internet protocol (IP) address.
2 ¶6 Detective Wallace testified that on June 19, 2018, he reviewed his computer
history and found a download in the area. Upon review of the video, he recognized what
he believed was child pornography. He then reviewed the log file to obtain the IP address
and the date the video was downloaded, and he determined that all the video pieces were
successfully downloaded. Detective Wallace testified that the IP address was assigned to
Charter Communications (Charter) in Mt. Vernon, Illinois, and Charter’s response to a
subpoena provided him with documents revealing the IP address was assigned to
defendant. The summary of the log file stemming from Detective Wallace’s search was
published, without objection, to the jury. Thereafter, Detective Wallace explained the
contents of the log file to the jury showing the login by defendant and the file
downloaded.
¶7 Detective Wallace explained that his computer recognized the download as
suspected child pornography by the hashtag value assigned by the child victim
identification program (CVIP). The detective testified that in addition to the hashtag
value, the name of the file also implied the file was child pornography. The title of the
video was “Moscow 5-1 (VHS 5) 7YO daughter pedo mom—(rare dad and daughter
PTHC video).” The detective explained that “PTHC” was an acronym known in the child
pornography world as “pre-teen hard core.” The log file and the records from Charter
were admitted into evidence without objection.
¶8 Detective Wallace averred that after receiving the records, he obtained a search
warrant for defendant’s residence. He confirmed that a computer and five hard drives
were seized during the search, and this evidence, along with the video downloaded from 3 defendant’s computer, was taken to the Illinois Attorney General’s Office for processing
at the Springfield computer forensics lab. The video was admitted into evidence without
objection. The State moved to publish the video to the jury, and the full 21-minute video
was played for the jury without objection.
¶9 Detective Wallace testified that after completing the search warrant, defendant
was taken to the sheriff’s office for questioning. The interview, performed by Detective
Wallace and Investigator Tom Bergola of the Attorney General’s office, was audio and
video recorded. Wallace stated that during the interview, defendant confirmed, multiple
times, that he was aware the program used to obtain the video was a file sharing program
but that he did not know how to turn it off. Wallace further stated that during the
interview, defendant also confirmed that he viewed child pornography, would masturbate
to it, and then delete the video after viewing. The State moved to admit and publish the
interview video. Defense counsel did not object to either; however, following a sidebar,
both parties agreed to stop the video prior to defendant’s comments about bail.
Thereafter, the interview video was published to the jury.
¶ 10 On cross-examination, Detective Wallace agreed that some children in
pornographic videos were eventually identified and those videos were named for that
child. In those instances, the age of the child was verified. Detective Wallace confirmed
that the video downloaded from defendant’s computer was not part of any series and the
age of the child in the video was unknown. He agreed that the title of a video did not
necessarily provide the correct age. Detective Wallace averred that based on his training
and experience, he believed the child was under the age of 13 and was definitely under 4 the age of 18. Detective Wallace explained that a file could not be shared while it was
downloading but was shareable as soon as it downloaded. Detective Wallace asserted
that defendant understood the file would be shareable once it was downloaded.
¶ 11 Detective Wallace averred that he did not believe defendant’s video download was
a one-time incident. In addition to defendant admitting during the police interview of
monthly downloads beginning when he was 15 years old, Detective Wallace also
intercepted two other interrupted downloads that went to defendant’s IP address. Wallace
confirmed the two downloads were also pornographic films based on the titles of the
videos and their content.
¶ 12 The State next called Siobhan McCarthy (McCarthy), a senior computer evidence
recovery technician in the High Tech Crimes Bureau from the Illinois Attorney General’s
Office, as a witness. McCarthy’s job included retrieving, identifying, and preserving
digital evidence. McCarthy received five hard drives from the search at defendant’s
residence and reviewed all of one hard drive and most of a second. McCarthy confirmed
that the drives did not contain any child pornography but did have adult pornography and
Hentai. McCarthy explained that Hentai was a Japanese anime style of pornographic
images. McCarthy found 400 Hentai images on defendant’s hard drive. After confirming
that the five images marked by the State as evidence were the same five images
McCarthy retrieved from the computer, the images were admitted and published to the
jury without objection. McCarthy confirmed that all five published images were Hentai,
and that Hentai was not illegal.
5 ¶ 13 Following McCarthy’s testimony, the State rested. Defendant moved for a directed
verdict based on, inter alia, Detective Wallace’s testimony that it was possible the child
was over the age of 13. The State objected. After considering the parties’ arguments, the
trial court denied defendant’s motion.
¶ 14 Following admonitions from the trial court about testifying, defendant confirmed
his desire to testify and took the stand. During his testimony, defendant confirmed, inter
alia, that he was aware during the police interview that he was being investigated for
child pornography. Defendant admitted downloading child pornography using the shared
network program and confirmed the video shown to the jury was downloaded to his
computer. Defendant further admitted that he accepted the shared network’s “terms of
use” but insisted he did not read them prior to accepting them and was unaware of any
way to download the videos without them being shareable. Defendant stated that he did
not knowingly let other people download the films from him and that typically he would
download, watch, and then delete the videos. Contrary to his statement during the police
interview, defendant denied masturbating to the video and stated he only told
investigators that because he figured he was going to jail so he just went along with what
they were saying.
¶ 15 When asked why he specifically downloaded child pornography, defendant
replied:
“Well, I don’t just download pornography. I read all kinds of stories and things
like that but in order to understand things, you often have to view them, and
6 sometimes that means going through and viewing things that you or most people
would find disgusting so that you could understand why they find it disgusting.”
¶ 16 Defendant testified that he understood possessing child pornography was illegal in
Illinois and that he did not knowingly share the video with Detective Wallace. Defendant
averred that he first watched child pornography by mistake when he was 15 years old and
that he did not know what it was. Defendant testified that when he first watched it, like a
lot of people, he was repulsed by it. But afterwards, he was thinking about why it
repulsed him and why he found it disgusting. So, he watched it again, because he was
curious about it and wanted to understand why people hated it so much and why he was
repulsed by it the first time. When asked if he had learned about people’s behaviors and
why people were repulsed by it, defendant said, “Not really ***.”
¶ 17 On cross-examination, defendant clarified that his interest was not child
pornography, but was “porn in general.” He explained that he did not just watch child
pornography; he watched all forms of pornography and read about it. Defendant
disagreed that it took him 16 years to figure out that child pornography repulsed people.
Defendant testified that he watched child pornography because he wanted to know why it
repulsed people and he still had not figured out why people thought it was repulsive.
When asked if he found it repulsive, defendant replied it “bothered him a little bit
because he didn’t think anyone should be forced to do anything they did not want to do.”
Defendant averred he did not know if the girl in the video was doing it on her own free
will but that she probably was not. Defendant agreed that he still downloaded child
pornography and watched it. After admitting that the video watched by the jury involved 7 a little girl that was having sex or having sexual contact with the man’s penis, and further
admitting that the video depicted the little girl with a penis in and around her mouth and
slightly in and around her anus, the following recitation occurred:
“Q. And you still can’t figure out why that repulses people? A. I can a little bit, but I want to understand the behaviors behind that, not just that it repulses people.”
¶ 18 Defendant agreed that over the last 16 years he had downloaded approximately
198 videos. Defendant stated that he was studying human behavior while watching the
videos. Thereafter, the following exchange occurred:
“Q. But—and you don’t masturbate to it? A. Yes. Q. Because that would be repulsive, right? A. Yes. Q. And you don’t want to be considered repulsive; do you? A. Right. Q. So to admit that would then make this jury think you are repulsive, and you don’t want that? A. Yeah. Q. You stated that you were just going along with what the officers stated? A. Yes, ma’am.”
¶ 19 Defendant agreed that he used the search term acronyms discussed by Detective
Wallace to search for child pornography and confirmed the detective’s interpretation of
the acronyms. He agreed that preteen meant before a teenager and that some of them
could have been under the age of 13. He confirmed his statement during the police
interview that most of the child pornography he viewed involved children who were 10,
11, or 12 years old and agreed it was possible some of them were younger. He confirmed
that the child pornography was his own, not anyone else’s who lived at the residence.
Defendant agreed that someone could only get the files if they were not deleted from his 8 computer. He agreed that he knew it was child pornography and that it was shareable.
Defendant said he did not intend to share the file but conceded he did not get the film
deleted in time. Thereafter, the defense rested.
¶ 20 The State presented no rebuttal, and during the jury instruction conference, the
defendant presented instructions for a lesser included charge of possession of child
pornography. The State objected and moved to amend the bill of indictment. Defense
counsel objected to the amendment. Following argument, the court granted the State’s
motion to amend the charging instruction and denied defendant’s requested lesser
included offense instructions.
¶ 21 After completing jury instructions, the parties presented their closing arguments.
The State argued that it proved the elements of the crime via Officer Wallace’s
testimony, the police interview with defendant, and defendant’s testimony. The State
addressed defendant’s testimony which confirmed the video the jury watched had been
on his computer and shared to Detective Wallace’s computer as well as defendant’s
admissions about specific scenes in the video and his testimony confirming the video was
child pornography. The State addressed the age of the child in the video by discussing the
video, defendant’s statements during the police interview, defendant’s testimony at trial,
the title of the video, and the search terms used by defendant. The State then concluded
by stating:
“So the defendant has confessed to you each and every element that I have
to prove. He confessed it to you yesterday. Why? Why come in here and take the
stand just to confess it all? Because he doesn’t want you to find him repulsive. 9 That’s what he told you. He somehow in his mind thinks child pornography is
okay, and I don’t want you guys to think that I masturbate to it because that would
be repulsive. I don’t have to prove that he masturbated to it. That is not an
element. But you guys are still going to find that repulsive. The common person is
going to find that repulsive no matter what you are doing with it.
And if after 16 years of studying human behavior you can’t figure out that
that’s repulsive, then there’s nothing that is going to change that. But he thought if
he got on the stand and explained that to you, you too would not find him
repulsive and find him not guilty. But yet, he sat and confessed to every element
that I have to prove. That’s why I would ask that you to return a verdict of guilty.”
¶ 22 Defense counsel’s closing argument noted the State’s use of the word “repulsive,”
saying, “Um, the State’s Attorney has used the term repulsive several times in her closing
statement, and I imagine many of you, if not all of you, were repulsed by that film. I
understand that. I definitely understand that.” Thereafter, counsel reminded the jury of its
agreement to hold the State to its burden of proof and then requested they do so. The
remainder of the argument addressed the age of the child in the video and the evidence
related thereto, arguing the State did not prove beyond a reasonable doubt that the child
in the video was under the age of 13. The defense concluded by stating, “It is hard to sit
here and watch this stuff and hear the evidence, but I ask that your emotions not get in the
way of the burden of proof that the State has. You may not like Mr. Hall. You may not
like his behavior and that is ok. But the State still has the burden of proof in this case to
prove every element and they have not done that.” 10 ¶ 23 The State noted in its final closing argument that defense counsel did not argue
that the video was not disseminated and clarified that the only issue for the jury was the
age of the child in the video. After again addressing the evidence, the State concluded,
stating, “Once again, ladies and gentlemen, there’s not a whole lot to argue to you. They
have agreed with every aspect of the State’s case except for they want to argue that the
individual was under—possibly, possibly over the age of 13, and you all know better.
Please find him guilty.”
¶ 24 Following deliberations, the jury found defendant was guilty of child pornography.
Sentencing was scheduled for December 13, 2018. Prior to the sentencing hearing,
defense counsel advised the court that his client wished to file a claim for ineffective
assistance of counsel. New counsel was appointed, and the sentencing hearing was held
on March 14, 2019, at which time the court sentenced defendant to 20 years’
imprisonment.
¶ 25 On March 20, 2019, defendant filed a motion to reconsider requesting a reduced
sentence, which was denied by the trial court on May 15, 2019. On May 17, 2019,
defendant filed a notice of appeal, and on May 23, 2019, defense counsel filed an
amended notice of appeal.
¶ 26 II. ANALYSIS
¶ 27 On appeal, defendant claims he was denied due process because his defense
counsel was ineffective and the State engaged in prosecutorial misconduct. Defendant
also claims the trial court erred by failing to admit his lesser included offense jury
11 instructions. Defendant concedes that all of his arguments were unpreserved and
therefore requests plain error review.
¶ 28 A. Ineffective Assistance of Counsel
¶ 29 Defendant claims he was denied his constitutional right to effective assistance of
trial counsel. Specifically, he claims his attorney was ineffective by failing to object to
(1) the State playing the full 21-minute child pornography video to the jury, (2) the State
repeatedly calling defendant and his behavior “repulsive,” (3) the State’s submission of
legal Hentai images from his computer, and (4) the State’s questions posed to defendant
on the elements of child pornography after defendant already admitted the video was
child pornography.
¶ 30 Every criminal defendant has a constitutional right to receive effective assistance
of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; Strickland v.
Washington, 466 U.S. 668, 685 (1984). Defendants are entitled to “reasonable, not
perfect, representation.” People v. Fuller, 205 Ill. 2d 308, 331 (2002). To prevail on a
claim of ineffective assistance of counsel, the defendant must satisfy a two-prong test and
establish that (1) counsel’s performance fell below an objective standard of
reasonableness and (2) counsel’s deficient performance prejudiced defendant. People v.
Albanese, 104 Ill. 2d 504, 525-26 (1984) (adopting the standard enunciated in Strickland,
466 U.S. 668). Our review is de novo. People v. Bates, 2018 IL App (4th) 160255, ¶ 46.
¶ 31 As to the first prong, the defendant “must overcome the strong presumption that
the challenged action, or inaction, might have been the product of sound trial strategy.”
People v. Jackson, 205 Ill. 2d 257, 259 (2001). Given the “variety of factors that go into 12 any determination of trial strategy,” a claim “of ineffective assistance of counsel must be
judged on a circumstance-specific basis, viewed not in hindsight, but from the time of
counsel’s conduct, and with great deference accorded counsel’s decisions on review.”
Fuller, 205 Ill. 2d at 331. As to the second prong, the defendant must prove that, “but for
counsel’s unprofessional errors,” there is a reasonable probability that the trial court
proceeding would have been different. (Internal quotation marks omitted.) People v.
Peeples, 205 Ill. 2d 480, 513 (2002). “An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment.” Strickland, 466 U.S. at 691.
¶ 32 Decisions concerning witnesses and evidence are the types of decisions that are
considered matters of trial strategy and are generally immune from claims of ineffective
assistance of counsel. People v. West, 187 Ill. 2d 418, 432 (1999). “Mistakes in trial
strategy or tactics or in judgment do not of themselves render the representation
incompetent.” (Internal quotation marks omitted.) People v. Hillenbrand, 121 Ill. 2d 537,
548 (1988). “The only exception to this rule is when counsel’s chosen trial strategy is so
unsound ‘that counsel entirely fails to conduct any meaningful adversarial testing.’ ”
West, 187 Ill. 2d at 432-33 (quoting People v. Guest, 166 Ill. 2d 381, 394 (1995)).
¶ 33 In this case, the defendant’s claims of ineffective assistance of counsel are based
on trial counsel’s alleged failure to object to certain evidence submitted by the State as
well as statements made by the State. “As a general rule, trial strategy encompasses
decisions such as what matters to object to and when to object.” People v. Pecoraro, 144
Ill. 2d 1, 13 (1991). Here, defendant’s trial strategy can be summarized as two defenses: 13 (1) the child in the video was not under the age of 13 and (2) the defendant did not intend
to disseminate the video. We address each of defendant’s claims, in turn.
¶ 34 First, defendant contends defense counsel was ineffective for failing to object to
the State’s questions posed to him during cross-examination regarding the acts shown in
the video. Specifically, the State asked defendant:
“Q. *** So you admit that the video that this jury watched was in fact a little girl that’s having sex or having sexual contact with a male’s penis, correct? A. Yes, ma’am. Q. And you agree that the video that they watched is of a little girl having a male penis put in her mouth and around her mouth, correct? A. Yes, ma’am. Q. And you agree that the video that they watched is of a little girl with a penis around and in her anus slightly, correct? A. Yes, ma’am.”
¶ 35 Here, however, defendant was admonished of the risks of testifying and of his
right to remain silent prior to testifying. The State’s questions were relevant to the issues
presented at trial and the matters raised on direct examination. We do not find it
unreasonable for defense counsel to refrain from objecting to the State’s questions about
the content of the video to confirm the acts depicted in the video comport with those
required by the charged offense.
¶ 36 Second, defendant argues defense counsel was ineffective for failing to object to
the State’s use of the word “repulsive” both during cross-examination and during closing
argument. While defendant now claims the State’s use of the word “repulsive” was
prejudicial, we note that it was defendant who first used the word “repulsed” during his
direct examination to explain why he began and continued to watch child pornography. In
that explanation, defendant used the word “repulsed” three times. Thereafter, defense 14 counsel also used the word “repulsed” in the next question. As such, we find the State’s
use of the word “repulsive” during cross-examination a continuation of the line of
questioning stemming from defendant’s direct testimony, and therefore, it was not
unreasonable for defense counsel to abstain from objecting to the State’s use of the word.
¶ 37 During closing argument, the State used the word “repulsive” six times after
addressing the age of the child in the video. Taking the State’s words in context, we note
that the first two uses repeated defendant’s testimony, the next three uses addressed the
video and child pornography, and the final instance again repeated defendant’s testimony.
Contrary to defendant’s contention, the State never called the defendant, or his behavior,
repulsive. Further, the State specifically separated the elements of the crime from the
word repulsive. Finally, defense counsel used the word “repulsed” in his closing and
conceded that most, if not all, viewers of the video would be repulsed by the images
shown on the video. We note the well-established principle that a “prosecutor has wide
latitude in making a closing argument.” People v. Nicholas, 218 Ill. 2d 104, 121 (2005).
A prosecutor may comment on the evidence during closing argument and may make fair,
reasonable inferences from it, “even if such inferences reflect negatively on the
defendant.” Id. Given the context in which the State used the word “repulsive,” along
with defense counsel’s own use of a similar word, we do not find it was unreasonable for
defense counsel to refrain from objecting to the State’s use of the word “repulsive”
during its questioning or closing arguments.
¶ 38 Third, defendant argues that defense counsel was ineffective in allowing the State
to submit 5 of the 400 Hentai images found on his computer because the images were 15 irrelevant or improper propensity evidence. All five images depicted toddler-aged
children in sexual situations. The State’s response is two-fold. First, the State argues that
the Hentai images were admissible for other purposes including “intent” and “absence of
mistake or accident” as provided in Rule 404(b). Ill. R. Evid. 404(b) (eff. Jan. 1, 2011).
Second, the State argues that propensity evidence is allowed in cases involving sexually
based acts or crimes as seen in this case pursuant to section 115-7.3 of the Code of
Criminal Procedure of 1963. 725 ILCS 5/115-7.3 (West 2018). While the State’s
argument has merit, we can find no strategic reason to support defense counsel’s failure
to object to the evidence. As such, we find defense counsel’s failure to object to the
evidence was error.
¶ 39 Fourth, defendant argues that defense counsel was ineffective by allowing the
State to play the entire 21-minute child pornography video for the jury. We consider this
argument in conjunction with the well-established law vesting the trier of fact with
deciding the age of the child depicted in the video (People v. Thomann, 197 Ill. App. 3d
488, 498 (1990)) and the strong presumption that defense counsel’s actions or inaction
was merely trial strategy. People v. Tucker, 2017 IL App (5th) 130576, ¶ 26. In this case,
defense counsel persistently argued that the child in the video could have been older than
13. Given defense counsel’s argument, and the lack of direct evidence concerning the
child’s actual age, we acknowledge that at least some portion of the video would need to
be viewed by the jury. However, we agree that playing the entire 21-minute video was
unnecessary and we can conceive of no strategic reason for defense counsel’s failure to
limit the length of the video displayed to the jury. 16 ¶ 40 Two of defendant’s claims of clear error fail to overcome the strong presumption
that the inaction of defense counsel may have been the product of sound trial strategy.
People v. Gacy, 125 Ill. 2d 117, 126 (1988). However, we find defense counsel was
deficient in not objecting to the State’s submission of the Hentai images and the State’s
playing the full 21-minute video to the jury. As such, we consider the effect of defense
counsel’s deficiencies under the second prong of review enunciated in Strickland.
¶ 41 “An error by counsel, even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had no effect on the judgment.”
Strickland, 466 U.S. at 691. Specifically, the defendant must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Internal quotation marks omitted.) People v.
Domagala, 2013 IL 113688, ¶ 36. “A ‘reasonable probability’ is defined as ‘a probability
sufficient to undermine confidence in the outcome.’ ” People v. Simpson, 2015 IL
116512, ¶ 35 (quoting Strickland, 466 U.S. at 694). In weighing the impact of defense
counsel’s errors, we consider the totality of the evidence before the finder of fact.
Strickland, 466 U.S. at 695.
¶ 42 At the trial, defendant confessed to every element of the crime, except the age of
the child in the video. Defendant’s testimony, coupled with his police interview
statements and the testimonies of Wallace and McCarthy, constitutes considerable,
properly admitted, evidence supporting the verdict. Considering the totality of the
evidence which the State presented to the jury, we cannot find that defense counsel’s
17 errors were sufficient to undermine our confidence in the verdict. As no prejudice can be
shown, we find that defendant’s claims of ineffective assistance of counsel must fail.
¶ 43 B. Plain Error
¶ 44 Defendant next claims prosecutorial misconduct and error regarding the trial
court’s denial of his lesser included charge jury instructions. Defendant concedes that
neither of these allegations were preserved and requests plain error review. The plain
error doctrine allows a reviewing court to consider unpreserved errors in two instances.
People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). The first arises when “a clear or
obvious error occurred and the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant, regardless of the seriousness
of the error.” Id. The second arises when “a clear or obvious error occurred and that error
is so serious that it affected the fairness of the defendant’s trial and challenged the
integrity of the judicial process, regardless of the closeness of the evidence.” Id. “As a
matter of convention, our court typically undertakes plain-error analysis by first
determining whether error occurred at all.” People v. Sargent, 239 Ill. 2d 166, 189
(2010). “If error is found, the court then proceeds to consider whether either of the two
prongs of the plain-error doctrine have been satisfied.” Id. at 189-90. Therefore, we first
consider whether defendant’s claims of error have merit.
¶ 45 1. Prosecutorial Misconduct
¶ 46 Defendant contends that he was denied a fair trial due to the State’s questions
asked during cross-examination and its use of the word “repulsive” during cross-
examination and closing argument. He argues that the State’s conduct constituted both 18 singular and cumulative prosecutorial misconduct. 1 On review we consider whether the
conduct of the State was improper or abusive and, if so, we then consider whether the
evidence was closely balanced or if that conduct was “of such a magnitude that the
defendant was denied a fair trial.” People v. Welch, 365 Ill. App. 3d 978, 988 (2005). As
such, we first consider whether the State’s conduct rose to the level of error.
¶ 47 Defendant first claims prosecutorial misconduct based on the State’s questions
during cross-examination that are set forth above in paragraph 34. As noted above, the
State’s questions were relevant to the issues presented at trial and matters raised on direct
examination. Here, defendant presents no argument to the contrary and provides no
authority stating that eliciting testimony from a defendant, that is cumulative of a relevant
fact, amounts to prosecutorial misconduct. As such, we do not find the State’s questions
were improper.
¶ 48 Defendant next argues that the prosecutor’s repeated use of the word “repulsive”
amounted to prosecutorial misconduct. We have closely reviewed the State’s questions
during cross-examination and comments during closing argument. Contrary to
defendant’s contention, at no time did the prosecutor ever call defendant or his behavior
“repulsive.” The State’s use of the word during cross-examination stemmed from
defendant and defense counsel’s use of the word “repulsed” during direct examination.
1 Defendant’s reply brief also claimed prosecutorial misconduct based on the State’s playing the full 21-minute video to the jury and submission of the Hentai images. Points not argued in an appellant’s initial brief “are forfeited and shall not be raised in the reply brief.” Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018). As such, we will not consider those arguments. 19 As such, the State’s use of the word was merely a continuation of the line of questioning
presented first during direct examination.
¶ 49 We also consider the State’s use of the word “repulsive” during closing
arguments. When reviewing claims of prosecutorial misconduct in closing argument, a
reviewing court will consider the entire closing arguments of both prosecutor and the
defense attorney, to place the remarks in context. People v. Ceja, 204 Ill. 2d 332, 357
(2003). A prosecutor has wide latitude during closing argument. People v. Blue, 189 Ill.
2d 99, 127 (2000). “In closing, the prosecutor may comment on the evidence and any
fair, reasonable inferences it yields ***.” Nicholas, 218 Ill. 2d at 121.
¶ 50 During closing argument, the State used the word “repulsive” six times after
addressing the age of the child in the video. As stated above, the State’s comments
referred to either the defendant’s own testimony or the video itself and, in response to the
State’s closing, defense counsel conceded most if not all people who viewed the video
would be “repulsed.” The State never called defendant repulsive and specifically
separated the elements of the crime from the word “repulsive” when addressing the jury.
As such, we do not find the State comments amount to error.
¶ 51 In addition to claiming that the State’s acts were individually prejudicial, the
defendant also argues that the cumulative effect of the errors seriously undermined the
integrity of the judicial proceedings to support reversal under the plain error doctrine. Our
supreme court has expressed concern over the cumulative effect of errors that “created a
pervasive pattern of unfair prejudice” much of it attributable to misconduct of the
20 prosecutors resulting in a “synergistic effect” caused by multiple errors. Blue, 189 Ill. 2d
at 138-40.
¶ 52 Here, we found no error with State’s questioning of defendant during cross-
examination or its use of the defendant’s responses in closing argument. Where no error
occurred at all, or any error that may have occurred did not rise to the level of plain error,
the defendant is not entitled to a new trial based on cumulative error. People v. Caffey,
205 Ill. 2d 52, 118 (2001).
¶ 53 2. Lesser Included Jury Instruction
¶ 54 Finally, defendant contends the trial court erred by not admitting the lesser
included offense jury instruction for possession of child pornography. To preserve an
issue for review, a defendant must make both a timely objection and “specifically include
the objection in a post-trial motion.” People v. Nieves, 193 Ill. 2d 513, 524 (2000). Here,
defendant failed to include the jury instruction issue in his posttrial motion and therefore
did not properly preserve the issue for review. As such, defendant requests review under
the plain error doctrine. We review the trial court’s determination on the lesser included
jury instruction under the abuse of discretion review standard. People v. McDonald, 2016
IL 118882, ¶ 42. “An abuse of discretion occurs only where the trial court’s decision is
arbitrary, fanciful, or unreasonable to the degree that no reasonable person would agree
with it.” People v. Rivera, 2013 IL 112467, ¶ 37.
¶ 55 “Generally, a defendant may not be convicted for an offense for which he has not
been charged.” People v. Hamilton, 179 Ill. 2d 319, 323 (1997). “However, in an
appropriate case, a defendant is entitled to have the jury instructed on a less serious 21 offense if that offense is included in the charged offense.” Id. In Illinois, the charging
instrument approach is used to determine whether a particular offense is a lesser included
offense of another. People v. Novak, 163 Ill. 2d 93, 113 (1994), abrogated on other
grounds by People v. Kolton, 219 Ill. 2d 353, 364 (2006). “The charging instrument
approach is two tiered.” Ceja, 204 Ill. 2d at 360. “First, a court must determine whether
the charging instrument describes the lesser offense.” Id. Each decision “must be made
on a case-by-case basis using the factual description of the charged offense in the
indictment.” Kolton, 219 Ill. 2d at 367. Here, such analysis is unnecessary because the
State conceded, based on the facts in this case, that possession of child pornography
would be a lesser included offense of child pornography.
¶ 56 “Once a lesser included offense is identified, however, it does not automatically
follow that the jury must be instructed on the lesser offense.” Hamilton, 179 Ill. 2d at
324. “A defendant is entitled to a lesser included offense instruction only if an
examination of the evidence reveals that it would permit a jury to rationally find the
defendant guilty of the lesser included offense but acquit the defendant of the greater
offense.” Id.; see also Ceja, 204 Ill. 2d at 360; People v. Jones, 175 Ill. 2d 126, 135
(1997); People v. Landwer, 166 Ill. 2d 475, 486 (1995). Therefore, in this case the second
tier required the trial court to determine if a jury could rationally acquit the defendant of
dissemination of child pornography.
¶ 57 Defendant was charged with child pornography pursuant to section 11-20.1(a)(2)
of the Criminal Code of 2012, which states:
“(a) A person commits child pornography who: 22 ***
(2) with the knowledge of the nature or content thereof, reproduces,
disseminates, offers to disseminate, exhibits or possesses with intent to
disseminate any film, videotape, photograph or other similar visual reproduction
or depiction by computer of any child *** whom the person knows or reasonably
should know to be under the age of 18 *** engaged in any activity described in
subparagraphs (i) through (vii) of paragraph (1) of this subsection[.]” 720 ILCS
5/11-20.1(a)(2) (West 2018).
One of the subparagraph activities includes actual or simulated engagement: “in any act
of sexual penetration or sexual conduct involving *** the mouth, anus or sex organs of
the child *** and the sex organs of another person.” Id. § 11-20.1(a)(1)(ii).
¶ 58 The statute also explains that:
“ ‘Disseminate’ means (i) to sell, distribute, exchange or transfer possession,
whether with or without consideration or (ii) to make a depiction by computer
available for distribution or downloading through the facilities of any
telecommunications network or through any other means of transferring computer
programs or data to a computer.” Id. § 11-20.1(f)(1).
¶ 59 Defendant argues that the State failed to prove he had the intent to disseminate the
child pornography and therefore he is entitled to the lesser charge instruction. However,
23 defendant’s bill of indictment was amended at the close of evidence. 2 Prior to the
amendment, the State was required to show either that defendant intended to disseminate
or that he did disseminate the child pornography. Following the amendment, the State
was only required to show that defendant disseminated the video.
¶ 60 Here, the defendant admitted that the video at issue was child pornography and
that the acts depicted on video involved the child’s mouth and anus as well as another
male’s penis. As to dissemination of the video, the defendant admitted that he obtained
the video from a sharing network, that he accepted the terms of use for obtaining videos
on the sharing network, and that the video, ultimately obtained by Detective Wallace,
came from defendant’s computer. In addition to defendant’s testimony, Detective
Wallace testified as to how he obtained the video from defendant’s computer, and his
testimony was supported by the log file from his computer and the Charter records. As
there was no evidence that would allow the jury to acquit defendant of the greater
offense, we find the trial court’s refusal to admit the lesser included offense jury
instruction was not an abuse of discretion.
¶ 61 III. CONCLUSION
¶ 62 For the foregoing reasons, we find that although some aspects of defense counsel’s
performance were deficient, the deficiencies did not undermine the outcome of the trial.
We find no plain error regarding defendant’s claims of prosecutorial misconduct or the
2 Although defendant objected to this amendment at trial, this issue was not raised on appeal. As such, we find the issue is forfeited. Holmstrom v. Kunis, 221 Ill. App. 3d 317, 325 (1991); see also Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018). 24 trial court’s rejection of defendant’s lesser included offense jury instruction. As such, we
affirm defendant’s conviction.
¶ 63 Affirmed.