People v. Nead

2025 IL App (3d) 230658-U

• Court: Appellate Court of Illinois
• Decided: April 11, 2025
• Docket: 3-23-0658
• Status: Unpublished

Opinion

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

2025 IL App (3d) 230658-U

Order filed April 11, 2025 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 18th Judicial Circuit, ) Du Page County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-23-0658 v. ) Circuit No. 20-CF-1097 ) JAMES ROBERT NEAD, ) Honorable ) Brian F. Telander, Defendant-Appellant. ) Judge, Presiding. __________________________________________________________________________

PRESIDING JUSTICE BRENNAN delivered the judgment of the court. Justices Anderson and Bertani concurred in the judgment. ___________________________________________________________________________

ORDER

¶1 Held: The circuit court did not err in denying defendant’s motion to suppress the victim’s photograph lineup identification of defendant.

¶2 Defendant, James Robert Nead, appeals from his convictions for aggravated criminal

sexual abuse, solicitation to meet a child, and traveling to meet a child. Defendant argues the

Du Page County circuit court erred by not granting his motion to suppress the photograph lineup.

We affirm. ¶3 I. BACKGROUND

¶4 Defendant was charged with three counts of aggravated criminal sexual abuse (720 ILCS

5/11-1.60(d) (West 2018)), solicitation to meet a child (id. § 11-6.6(a)), and traveling to meet a

child (id. § 11-26(a)). The charges alleged defendant used Snapchat to coerce the 13-year-old

victim, N.K., to meet him. Defendant, who was at least five years older than N.K., traveled to meet

N.K., placed his hands on N.K.’s breasts and vagina, and put his mouth on N.K.’s breasts.

¶5 Defendant filed a motion to suppress a photograph lineup and any in-court identification

of defendant by N.K. The motion alleged the photograph lineup presented to N.K. was

impermissibly suggestive primarily because defendant’s photograph was “before a bright blue

background while wearing a different facial expression, in tighter frame, misaligned, and in

different proportion from the other five [photographs].” Besides the lineup itself, defendant

submitted evidence of a subsequent lineup in support of his motion. The second lineup, introduced

over the State’s objection, was conducted by a different lineup administrator for a second alleged

victim involving unrelated acts. It used the same six photographs as the lineup at issue. They were

turned black and white and presented in a different order. The second lineup report gave no

indication that the second victim was able to identify defendant.

¶6 At a hearing on the motion to suppress, Detective Paul Elliott of the Naperville Police

Department testified he identified defendant as a suspect in the course of his investigation. Elliott

did not have a photograph of defendant available, so he obtained defendant’s driver’s license

photograph through the Secretary of State’s database. Elliott compiled a lineup using a software

system which generated photographs of five other participants from the police booking records

based upon basic physical characteristics. Elliott ensured the other participants matched the general

description of the suspect provided by N.K. Detective Ann Quigley of the Naperville Police

2 Department administered the photograph lineup. Quigley was otherwise uninvolved in the

investigation. Quigley received the lineup from Elliott and presented it to N.K. without making

any changes. Quigley would not make any changes to a lineup, even if she noticed a photograph

stood out, as she was only to take the photographs as they were given to her. Neither detective

changed the position of the photographs in the array.

¶7 The court agreed that defendant’s background was a brighter blue shade, he wore a

different facial expression, and both defendant’s head and actual photograph were slightly larger.

The court also determined defendant and the other participants in the array shared important

similarities, including their age, hair, lack of facial hair, skin color, and clothing. The court noted

that even though three of the other participants’ photographs had similar backgrounds, the other

two were each different. The court granted the State’s motion for directed finding and denied

defendant’s motion to suppress.

¶8 The case proceeded to a jury trial where N.K. testified she was 13 years old in June 2019.

On either June 26 or 27, 2019, she received a message on Snapchat from an account with the

username “jamesrnx.” The user said he was 16 or 17 years old. He asked N.K. to send him nude

photographs of herself, and she sent him a photograph of her breasts. The user sent N.K.

photographs of his chest and penis. The user then sent a message to N.K. saying that if she did not

meet with him in person, he would send her nude photographs to everyone she knew, including

her parents.

¶9 On June 28, 2019, N.K. received a message from jamesrnx at 1 a.m. Jamesrnx stated he

knew where N.K. lived. N.K.’s location was visible on Snapmap. N.K. had her Snapmap set to

“public” so anyone who used Snapmap could see where she lived. N.K. walked down the street

from her house to a plaza. A small grey sedan pulled up to the plaza. N.K. identified defendant in

3 court as the person she met that night. When N.K. entered the vehicle, she was able to view

defendant’s face because the vehicle’s inside lights were on and defendant was facing her.

Defendant drove to another neighborhood. While driving, defendant used his hand to touch both

of N.K.’s breasts and her vagina inside her underwear. N.K. believed defendant drove around while

touching her for 20 to 30 minutes. When they returned to the plaza, defendant put his mouth on

N.K.’s breasts. They were parked in the plaza for approximately five minutes.

¶ 10 When N.K. returned home, she blocked jamesrnx on Snapchat. N.K. took a shower but did

not wash her clothes. N.K. did not save the photographs that jamesrnx sent to her. N.K. gave the

police her phone and submitted to a sexual assault examination the night of the incident. N.K.

described the suspect as approximately 16 to 19 years old, with short brown hair, and a “long thin

face.” N.K. did not notice any distinguishing marks, tattoos, or facial hair. N.K. testified she

participated in a police photograph lineup on August 28, 2019. N.K. identified defendant during

the initial lineup.

¶ 11 Elliott testified they performed a forensic extraction of N.K.’s cell phone. They were

unable to recover photographs or conversations between N.K. and jamesrnx. The police obtained

records for the user account jamesrnx. Included in the records were: multiple photographs of an

exposed male abdomen sent between June 26 to 28, 2019; evidence of communications that

occurred between jamesrnx and N.K.’s Snapchat accounts for the dates of June 27 to 28, 2019;

and information regarding an email and Internet protocol (IP) address associated with the account.

The email associated with the account was jamesnead13@gmail.com. From the IP address, Elliott

identified a physical address in Naperville. The State further introduced evidence that the GPS

data from N.K.’s phone showed her moving away from the area of her home at 1:05 a.m. on June

28, 2019, before returning at approximately 2 a.m.

4 ¶ 12 DNA testing was performed, and defendant could not be excluded from the DNA contained

on N.K.’s underwear. However, an expert testified that, given the low level recovered, the DNA

could have come from direct or indirect contact, and N.K. could have transferred the DNA by

spending time with defendant and then later changing her clothes.

¶ 13 Defendant was found guilty of all counts. Defendant filed a motion for a new trial. Relevant

to this appeal, defendant argued the photograph array was impermissibly suggestive because it

“stood out from the rest of the fillers in the photo array, most notably based on the bright-blue

background ***. The Defendant also relies on points of undue suggestiveness raised in his

[pretrial] motion, and arguments made during the hearing.” The court denied the motion.

¶ 14 Defendant was sentenced to six years’ imprisonment for each of the three counts of

aggravated criminal sexual abuse, two years’ imprisonment for the solicitation to meet a child, and

four years’ imprisonment for traveling to meet a child, to be served concurrently.

II. ANALYSIS

¶ 15 On appeal, defendant argues the circuit court erred by not granting defendant’s motion to

suppress the photograph lineup. While the State initially argues defendant forfeited this issue, we

find that he adequately preserved the issue for review through his motion to suppress and motion

for a new trial, which specifically repeated some arguments previously raised and otherwise

incorporated the remaining arguments by reference to his written motion to suppress the

photographic lineup. See People v. Brown, 150 Ill. App. 3d 535, 540 (1986).

¶ 16 When reviewing a circuit court’s ruling on a motion to suppress, we will not reverse the

circuit court’s factual findings unless they are against the manifest weight of the evidence. People

v. Luedemann, 222 Ill. 2d 530, 542 (2006). The ultimate determination on the motion to suppress

ruling is reviewed de novo. Id. The defendant bears the initial burden of establishing the

5 identification procedure was impermissibly suggestive. People v. Enis, 163 Ill. 2d 367, 398 (1994).

Where a pretrial lineup is impermissibly suggestive such that it produces “a very substantial

likelihood of irreparable misidentification,” evidence of the lineup and subsequent identifications

must be excluded. (Internal quotation marks omitted.) People v. Ramos, 339 Ill. App. 3d 891, 897

(2003).

¶ 17 Due process is offended where the pretrial identification procedure strongly suggests to the

witness to select the defendant. People v. Johnson, 149 Ill. 2d 118, 147 (1992). Courts look to the

totality of the circumstances when considering whether a lineup is impermissibly suggestive. Id.

Here, defendant argues the lineup was impermissibly suggestive because defendant’s face is

slightly larger, his photograph is the only one with teeth showing, and his background is the only

one that is bright blue. For the reasons that follow, we disagree.

¶ 18 Initially we observe that Elliott properly obtained the available photograph of defendant

and then created the lineup using basic physical characteristics. As a result, the other participants

and defendant shared a number of physical similarities, including age, hair, skin color, clothing,

and lack of facial hair. The detectives further ensured the other participants matched the general

description provided by N.K. and employed the necessary procedure, in accordance with the

statute. 725 ILCS 5/107A-2 (West 2018).

¶ 19 Turning to the differences argued by defendant in support of its suggestibility argument,

we are cognizant that lineup participants need not be identical or near identical to the defendant.

People v. Faber, 2012 IL App (1st) 093273, ¶ 57. Differences in appearance, even substantial

differences, between defendant and the other lineup participants goes to the weight of the evidence,

not its admissibility. People v. Saunders, 220 Ill. App. 3d 647, 665-66 (1991). Courts have

repeatedly held that lineup procedures are not impermissibly suggestive even where a defendant

6 differs from the other participants in a notable way. See, e.g., People v. Kubat, 94 Ill. 2d 437, 472

(1983) (the defendant was the only one wearing glasses); People v. Smith, 160 Ill. App. 3d 89, 92

(1987) (the defendant had a different hair color from the other participants). Further, “a different

format does not automatically render a photo suggestive: it may make it more so or less so.

Different need not be equated with suggestive.” People v. Bryant, 94 Ill. 2d 514, 520 (1983); see,

e.g., People v. Carter, 2023 IL App (1st) 200091-U, ¶ 98, (the defendant’s photograph bore his

actual name while all the other participants bore the last name “Jones”). A different background

color generally does not render a lineup impermissibly suggestive. People v. Bahena, 2020 IL App

(1st) 180197, ¶ 37; People v. Joiner, 2018 IL App (1st) 150343, ¶ 42.

¶ 20 In reviewing the photographic lineup, we agree with the circuit court that it was not

impermissibly suggestive. The brighter blue background, even if notably different, was not

suggestive. See Joiner, 2018 IL App (1st) 150343, ¶ 42 (noting courts have found photographic

lineups proper where defendant’s photograph was noticeably darker than the other photographs,

had a different background, and was the only image portrayed in color). Further, the other five

photographs were not uniform. Three photographs had similar gray backgrounds while the

remaining three, including that of defendant, were all unique. See Bahena, 2020 IL App (1st)

180197, ¶ 37. The lineup was also not improper even though defendant’s head was slightly larger

and he was the only participant with his teeth showing. Far more notable and relevant differences

have been found nonsuggestive. See Smith, 160 Ill. App. 3d at 93. The teeth and head size were

only minor differences unrelated to N.K.’s description of defendant and did not suggest to N.K.

that she should identify defendant. Even taken together, the differences cited by defendant did not

render the lineup improper. See, e.g., Bahena, 2020 IL App (1st) 180197, ¶ 37 (the defendant’s

photograph had a different color background and showed slightly less of his body than the other

7 participants); People v. Harrell, 104 Ill. App. 3d 138, 144-45 (1982) (the defendant had different

hair length and facial features and defendant’s photograph was a different shape and had a different

background). Considered in their totality, all three differences only affected the weight of the

evidence and not its admissibility.

¶ 21 In coming to this conclusion, we reject defendant’s reliance on the altered lineup presented

to an unrelated victim. As we have determined that the initial lineup was not suggestive, there was

no obligation to adjust the lineup before administering it to N.K.

¶ 22 III. CONCLUSION

¶ 23 The judgment of the circuit court of Du Page County is affirmed.

¶ 24 Affirmed.