People v. Milam

2024 IL App (2d) 240027-U

• Court: Appellate Court of Illinois
• Decided: March 18, 2024
• Docket: 2-24-0027
• Status: Unpublished

Opinion

2024 IL App (2d) 240027-U No. 2-24-0027 Order filed March 18, 2024

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of De Kalb County. ) Plaintiff-Appellee, ) ) v. ) No. 23-CF-628 ) RICHARD C. MILAM, ) Honorable ) Judge Marcy L. Buick, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE McLAREN delivered the judgment of the court. Justices Jorgensen and Mullen concurred in the judgment.

ORDER

¶1 Held: The trial court’s finding that defendant’s pretrial release posed a real and present threat to the safety of the community was not based on the specific articulable facts of the case where the trial court improperly relied on the general nature of the charged offense. There were mitigating alternatives to denial of release. Cause remanded for further proceedings.

¶2 At issue here is whether a defendant, in possession of child pornography, was a danger to

any person, persons, or the community, and whether there were no conditions of release that could

mitigate said threat or threats based on the particularized facts of the case.

¶3 I. BACKGROUND 2024 IL App (2d) 240027-U

¶4 The State charged defendant with three counts of Child Pornography (Class 2 felonies).

Each count alleged defendant was in possession of a digital video file via computer containing

children under the age of 18 and sometimes as young as 5 to 7 years of age or younger, engaging

in some act of sexual penetration. Said allegations are based upon the execution of a search warrant

of Milam’s self-admitted computer in his residence. The State alleged in its petition to deny release

that defendant “is charged with any offense under Article 11 of the Criminal Code of 2012, except

for Sections 11-14, 11-14.1, 11-18, 11-20, 11-30, 11-35, 11-40, and 11-45 of the Criminal Code

of 2012, or similar provisions of the Criminal Code of 1961 and the defendant’s pretrial release

poses a real and present threat to the physical safety of any person or persons or the community.”

¶5 The State further alleged:

“Some of the things that a Court would look at to determine if the defendant is

dangerous are the nature and circumstances of the crime. Sex offenses are one of those

sorts of crimes that would suggest the defendant is dangerous. These are obviously sex

offenses under the Illinois statutes.

The identity of the people who would be threatened are obviously children in this

situation. The defendant contributes to the child pornography, the child pornography as a

whole so every child in that is threatened.

The defendant would have—there would be nothing to mitigate the threat posed to

the community or children by any condition or combination of conditions that would—that

the Court could issue.”

¶6 On November 17, 2023, the trial court explained its finding that defendant was dangerous

and mitigation was not feasible:

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“I further find that there are [sic] no condition or combination of conditions that

would mitigate a real and present threat to the safety of persons in the community. The

nature and the circumstances of the offense, I have considered those in making this finding.

Although the defendant does not have any prior criminal history, he is an older man.

He is 69 years old. There are no conditions of release the court can set that would prevent

the defendant from accessing child pornography, and every alleged victim is an alleged

victim on all the images. That is what the law provides. (Emphasis added.)

And I am basing my finding specifically to this case on the facts that I have found

in the sworn synopsis.

So I am granting the State’s verified petition to deny the defendant pretrial release.”

¶7 On December 18, 2023, retained counsel filed a motion to grant pretrial release seeking

reconsideration of the November 17th denial of release. The essence and substance of the motion

was that the trial court did not consider the particular facts of the case. Rather, the court considered

the general harm caused by violating the criminal statutes. Counsel argued that if that logic were

generally applied, then all similarly charged defendants would be subject to denial of release

because virtually all children would be possible persons subject to harm. The State countered with

the harm to the children and to the community is inherent in the type of offense. Therein lies the

rub.

¶8 II. ANALYSIS

¶9 Pretrial release is governed by article 110 of the Code. 725 ILCS 5/110-1 et seq. (West

2022). To deny a defendant pretrial release, the trial court must find that the State proved the

following by clear and convincing evidence: (1) the proof was evident or the presumption great

that defendant committed a detainable offense (id. § 110-6.1(e)(1)), (2) defendant’s pretrial release

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posed a real and present threat to the safety of any person or persons or the community (id. § 110-

6.1(e)(2)), and (3) no condition or combination of conditions could mitigate the real and present

threat to the safety of any person or the community or prevent the defendant's willful flight from

prosecution (id. § 110-6.1(e)(3)).

¶ 10 We review whether the trial court’s findings were against the manifest weight of the

evidence. People v. Trottier, 2023 IL App (2d) 230317, ¶ 13; People v. Vingara, 2023 IL App

(5th) 230698, ¶ 10. A finding is against the manifest weight of the evidence when it is

unreasonable. People v. Sims, 2022 IL App (2d) 200391, ¶ 72. We review the trial court’s ultimate

decision regarding pretrial release for an abuse of discretion. Trottier, 2023 IL App (2d) 230317,

¶ 13.

¶ 11 Here, the trial court found and determined that the evidence in the synopsis established the

dangerousness of the defendant and there are no conditions which would mitigate the threat(s).

The danger the court was referencing was the general threat to children that the act of producing

and/or possessing child pornography generates. However, the trial court focused on the incorrect

law in concluding to deny release. The trial court considered the criminal statute rather than the

PFA. In this case there was no evidence to establish that possessing images of past trespasses upon

the privacy of minor victims presents a real and present danger to particular children or the

community concerning pretrial release.

¶ 12 We have reviewed the entire record and can find no evidence to determine that defendant

is a danger to particular individuals or the community at large during pretrial release. Defendant

was deemed eligible for release with a zero on a scale from 0 to 14, had no criminal history prior

to his 69th year, his computer is presently in police custody, he is working, and he lives at a

residence comprising only adults. We determine conditions could reasonably be imposed that

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minimize any concerns during pretrial release. Cf. People v. Erek Drew, 2024 IL App (2d) 230606-

U, ¶ 15 (“Defendant argues that basing dangerousness on a generalized risk of harm departs from

the plain text of section 110-6.1of the Code by treating drug offenses as per se dangerous and by

failing to base the dangerousness determination on the specific articulable facts of his case. As

explained herein, we agree with defendant’s argument.”).

¶ 13 The state failed to sustain its burden of proof with regard to dangerousness and no condition

or conditions would mitigate the risks of pretrial release to persons or to the community. The trial

court’s findings relative thereto are against the manifest weight of the evidence and the resulting

judgment is an abuse of discretion.

¶ 14 III. CONCLUSION

¶ 15 For the reasons stated, we reverse the judgment of the circuit court of De Kalb County and

remand for further proceedings consistent with this disposition.

¶ 16 Reversed and Remanded.

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