People v. Wells , 2022 IL App (2d) 200091-U ( 2022 )

2022 IL App (2d) 200091-UNo. 2-20-0091
Order filed March 17, 2022
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 McHenry County.
)
Plaintiff-Appellee, )
)
v. ) No. 16-CF-887
)
ANDREW J. WELLS, ) Honorable
) Michael E. Coppedge,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court.
Justices McLaren and Brennan concurred in the judgment.
ORDER
¶1 Held: Defendant was properly convicted of child pornography for an image found on a
USB drive that a fellow employee took from defendant’s desk, where the drive
activity and a suspicious file name for an image demonstrated defendant’s
knowledge of the image in sufficient time for him to terminate his possession of it.
¶2 Defendant, Andrew J. Wells, appeals from his conviction, following a bench trial, of a
single count of child pornography (720 ILCS 5/11-20.1(a)(6)) (West 2016)). Defendant argues
that the State failed to prove his guilt beyond a reasonable doubt. We affirm.
¶3 I. BACKGROUND
2022 IL App (2d) 200091-U¶4 The three-count indictment charged defendant with possessing three computer files, each
of which contained a single image of child pornography. The files were named “-1j!!!
smommysfavdaughta(16).jpg” (count I), “140620102324110375.jpg” (count II), and
“180620100228160546.jpg” (count III).
¶5 Michael Donley testified that, in July of 2016, he worked at Wild West Town in McHenry
County. The Donley family operated Wild West Town and other businesses, including a restaurant
and an auction house. Michael helped manage and advertise Wild West Town. For several years,
defendant was a chef with the restaurant. Later, he provided accounting services for Wild West
Town while it was closing down. Defendant worked in the office at Wild West Town. The office
had three desks and several computers. One of the desks was “predominantly” used by defendant.
Though that desk was not “a dedicated workspace for anyone else,” Michael, his brother Randall,
and their parents also had access to the office. On July 15, 2016, Michael needed a USB drive for
a project he was working on, and he discovered a USB drive on defendant’s desk. When he
inserted the drive into his computer, a list of files appeared. Michael opened an image file named
“-1j!!!mommysfavdaughta(16).jpg,” a file labeled “TaxReturn.pdf,” and an accounting software
file related to the Donleys’ restaurant. Michael then ejected the drive from the computer and went
to talk to Randall.
¶6 Randall testified that Michael asked him to contact an attorney about the USB drive. The
attorney advised Randall to contact the police, which he did.
¶7 Michelle Asplund testified that she was currently a sergeant with the McHenry County
Sheriff’s Department. She had previously been a detective with the department, and she had
specialized training in digital forensics. On or about August 17, 2016, she became involved in a
child pornography investigation, which entailed examining the USB drive found on the desk that
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2022 IL App (2d) 200091-Udefendant used at Wild West Town. Asplund previewed the USB drive with a device that opened
the drive in a read-only mode without making modifications to the drive. Asplund looked through
the contents of the drive and then made a working copy for her forensic examination. The State’s
exhibits included screenshots of the USB’s file directory. The directory listed individual files and
file folders. The directory indicated a “date modified” for each file and folder. Asplund explained
that the “date modified” was when the file or folder was saved, copied, or transferred to the drive.
¶8 The State introduced several photographs of children that Asplund found on the drive.
State’s exhibit No. 4 was an image from a file named “-1j!!!mommysfavdaughta(16).jpg.” The
file appeared as an individual file in the USB directory; it was not in a folder. The image showed
a female child in fishnet stockings with her genitals exposed. Asplund testified that, based on her
training and experience, the girl in the image appeared to be under 18. The file had a “date
modified” of March 14, 2011. The image was the basis of count I of the indictment.
¶9 Asplund identified State’s exhibit No. 6 as a series of images found in a folder named
“attachments2_2010_06_17,” in the file directory. Asplund identified State’s exhibit No. 7 as an
image from a file named “140620102324110375.jpg,” from the “attachments2_2010_06_17”
folder. The file had a “date modified” of June 17, 2010, and was the basis of count II. The image
was of a female child with her legs spread, exposing her genitals. Asplund testified that the girl
appeared to be under 18.
¶ 10 Asplund identified State’s exhibit No. 9 as a series of images found in a folder named
“attachments_2010_06_17,” in the directory. She identified State’s exhibit 10 as an image from a
file named “180620100228160546.jpg,” from the “attachments_2010_06_17” folder. The file had
a “date modified” of June 17, 2010. The image is of a female child in a plaid skirt and black
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2022 IL App (2d) 200091-Ustockings with her chest and genitals exposed. Asplund testified that the girl in the image appeared
to be under 18. The image was the basis of count III.
¶ 11 Asplund also located files on the USB drive that did not contain images of children. A file
named “cam4logininfro.txt” contained account information (a username and password) for a live
webcam site. The e-mail address associated with the account was Drew****@yahoo.com. The
“cam4logininfro.txt” file had a “date modified” of October 3, 2011.
¶ 12 A file named “charterorderforservice.txt” also appeared on the drive. That file was a
confirmation for television and Internet service ordered in defendant’s name with the e-mail
address Drew****@yahoo.com.
¶ 13 The USB drive also contained (1) QuickBooks accounting software files with “dates
modified” in March 2016; (2) a file named “experioncreditreport.txt,” containing a credit report
with a “date modified” of February 28, 2011; (3) Excel spreadsheet documents named “Joel.xlsx”
and “Joel2.xls,” authored by defendant; (4) a file named “passwordformoneygramandsuch.txt,”
which had a “date modified” of December 7, 2011, and contained an e-mail address that
incorporated defendant’s initials; (5) a file named “paymentconfirmamericangeneral.txt,” which
had a “date modified” of April 7, 2011, and contained defendant’s name, the e-mail address
Drew****@yahoo.com, and bank account information; (6) a file named
“pushplaymembershipinfo.txt,” which had a “date modified” of December 5, 2010, and contained
defendant’s name, the e-mail address Drew****@yahoo.com, and credit card information; and
(7) a file containing one of defendant’s tax returns, with a “date modified” of January 26, 2011.
Another individual file (not in a folder) named “Kitty_-_More_Dirty_Debutantes_290_-
_first_anal_scene.zip.001,” had the same “date modified” as the file containing the tax return. (No
charges were brought in connection with the “Kitty” file.)
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2022 IL App (2d) 200091-U¶ 14 Asplund testified that she spoke with defendant on September 8, 2016. Defendant admitted
that the nonpornographic files on the USB drive belonged to him. He denied, however, that any
of the pornographic files were his. Defendant told Asplund that he had forgotten that he had
brought the USB drive to the Donleys’ property. Asplund acknowledged that software was
available that could change a file’s “date modified.” However, Asplund could not tell if such
software had been used on the files.
¶ 15 McHenry County Deputy Sheriff Derick Waters testified that he spoke with defendant by
telephone on August 2, 2016. Waters informed defendant that the Donleys had discovered child
pornography on a USB drive on defendant’s desk. Defendant denied that the USB drive was his.
¶ 16 Defendant presented no evidence.
¶ 17 The trial court found defendant guilty on count I (regarding the file “-1j!!!
mommysfavdaughta(16).jpg”) and not guilty on counts II and III. This appeal followed.
¶ 18 II. ANALYSIS
¶ 19 Defendant argues that the evidence of his guilt is insufficient to sustain his conviction. A
reviewing court will not set aside a criminal conviction unless the evidence is so improbable or
unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. People v. Collins, 106
Ill. 2d 237, 261 (1985). On a challenge to the sufficiency of the evidence, “ ‘the relevant question
is whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”
(Emphasis in original.) Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The trier of
fact is responsible for resolving conflicts in the testimony, weighing the evidence, and determining
inferences. A reviewing court ordinarily will not substitute its judgment on these matters for the
trier of fact. People v. Cooper, 194 Ill. 2d 419, 431 (2000).
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2022 IL App (2d) 200091-U¶ 20 Child pornography, as defined in section 11-20.1(a)(1)(vii) of the Criminal Code of 2012
(720 ILCS 5/11-20.1(a)(1)(vii) (West 2016)), includes a depiction by computer of a child under
18 “depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the
unclothed or transparently clothed genitals, pubic area, buttocks, or, if such person is female, a
fully or partially developed breast of the child or other person.” As pertinent here, a person
commits child pornography if he or she “with knowledge of the nature or content thereof” (id.
§ 11-20.1(a)(6)) possesses child pornography and knows or reasonably should know the person
depicted to be under the age of 18. Id. Section 11-20.1(b)(5) (id. § 11-20.1(b)(5)) provides, in
pertinent part:
“The charge of child pornography does not apply to a person who does not voluntarily
possess a *** depiction by computer in which child pornography is depicted. Possession
is voluntary if the defendant knowingly procures or receives a *** depiction for a sufficient
time to be able to terminate his or her possession.”
¶ 21 Defendant does not deny that the image in the file named “-1j!!!mommysfavdaughta
(16).jpg” was child pornography. However, he contends that the State failed to prove beyond a
reasonable doubt that he knowingly possessed the image. Defendant argues that his possession of
the USB drive was not exclusive, because his workspace was shared by others. However, as the
prosecutor noted during closing argument:
“[Defendant] can’t distance himself completely from the flash drive because of the
incredible amount of his personal information that is on the flash drive. His name and
personal information is flashed across every non-pornography file on that flash drive. His
tax returns with his Social Security number are there. His bank account number is there.
The financial information for his brother-in-law is there. His address is there. Not one but
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2022 IL App (2d) 200091-Utwo of his email addresses are there. His phone numbers are there. A flash drive with this
amount of personal information on it, basically every piece of personal information a
person could have is on that flash drive.”
¶ 22 Defendant maintains that the State did not prove that he was the source of the file.
Defendant further argues that “[t]he State presented no evidence that [defendant] viewed, copied,
moved or shared the image because there is no such proof.” Defendant contends that the trial court
improperly relied on People v. Scolaro, 391 Ill. App. 3d 671 (2009), and People v. Gumila, 2012
IL App (2d) 110761, to find that he possessed child pornography. Those cases held that the
defendants knowingly possessed images, stored automatically in temporary Internet files, because
the evidence showed that the defendants actively sought out the images rather than happening upon
them by accident. See Scolaro, 391 Ill. App. 3d at 680; Gumila, 2012 IL App (2d) 110761, ¶¶ 68-
73. Contrary to defendant’s argument, the trial court did not rely on these cases. The trial court
noted that if defendant’s possession of the USB drive were exclusive, that circumstance would
support a finding that defendant sought out the image (like the defendants in Scolaro and Gumila
did). However, the trial court found that defendant’s possession of the USB drive was not
exclusive. The trial court also expressly found no evidence that defendant downloaded any
pornographic images or searched for them on the Internet.
¶ 23 Nonetheless, the trial court concluded that there was sufficient evidence that defendant
knowingly and voluntarily possessed the image. The trial court noted that the file named “-1j!!!
mommysfavdaughta(16).jpg” had a “date modified” of March 14, 2011. That date fell between
the modification dates for two files that defendant admitted belonged to him. The file named
“experioncreditreport.txt,” containing a credit report, had a “date modified” of February 28, 2011.
The file named “paymentconfirmamericangeneral.txt” had a “date modified” of April 7, 2011. The
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2022 IL App (2d) 200091-Utrial court concluded that, if defendant had not placed the file named “-1j!!!
mommysfavdaughta(16).jpg” on the USB drive, he would have noticed the peculiar title. The trial
court applied the same reasoning to the file named “Kitty_-_More_Dirty_Debutantes_290_-
_first_anal_scene.zip.001,” which had an even more suggestive name. Both files appeared
individually in the USB’s directory and were not in folders. Further, as the trial court noted, the
“Kitty” file had the same “date modified” (January 26, 2011) as a tax return on the USB drive;
thus, there was activity on both files on the same day. The trial court, in essence, concluded that,
under the circumstances, it was unreasonable to believe that defendant would not have noticed
suspiciously sounding files in the USB drive directory and discovered the image “-1j!!!
mommysfavdaughta(16).jpg.” 1 The trial court further concluded that defendant’s possession was
voluntary because he knew the image’s content but took no steps to erase or report it. We add that
defendant had ample time to do so before Michael discovered the image.
¶ 24 The trial court made reasonable inferences in finding defendant guilty on count I.
Defendant contends that there was no evidence that the computer he used at Wild West Town ever
displayed a list of the files on the USB drive. However, given the amount of work stored on the
USB drive, it is a reasonable inference that, at some point, defendant would have pulled up a file
directory alerting him to the presence of suspicious files on the USB drive. The trial court
reasonably inferred that defendant would have investigated those files. As noted, it was the trial
court’s function to draw inferences from the evidence. We cannot stress enough that, as a
1
The trial court distinguished the other two images defendant was charged with possessing.
The court reasoned that these images were found in innocuously named files within innocuously
named folders.
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2022 IL App (2d) 200091-Ureviewing court, it is not our role to retry defendant. People v. Rojas, 359 Ill. App. 3d 392, 397
(2005).
¶ 25 Finally, it is significant that defendant falsely told Waters that the USB drive containing
the child pornography images was not his. It is well established that a false exculpatory statement
is probative of consciousness of guilt. People v. Beaman, 229 Ill. 2d 56, 80-81 (2008). In sum,
we cannot say the evidence of defendant’s guilt “is so improbable or unsatisfactory that it creates
a reasonable doubt of the defendant’s guilt.” Collins, 106 Ill. 2d at 261.
¶ 26 III. CONCLUSION
¶ 27 For the these reasons, we affirm the judgment of the circuit court of McHenry County.
¶ 28 Affirmed.
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