Appeal from the Circuit Court of Lake County. No. 10-CF-1902 Honorable Theodore S. Potkonjak, Judge, Presiding.
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Birkett and Spence concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant, Bryan Sedelsky, was found guilty of three counts of possession of child pornography (720 ILCS 5/11-20.1(a)(6) (West 2008)), and the trial court sentenced him to five years' imprisonment for each conviction, to run concurrently. Defendant argues on appeal that one of his convictions should be vacated because two counts were based on possession of an identical image stored in the same digital medium. We agree and reverse defendant's conviction of count III and vacate the corresponding sentence.
¶ 2 I. Background
¶ 3 On June 30, 2010, the State charged defendant by indictment with three counts of child pornography. Count I related to possession of a computer image entitled "yngbigirl1_o_50465483.jpg." Count II related to possession of a computer image entitled "yngbigirl1_0_50577108.jpg." Count III related to possession of a computer image entitled "yngbigirl1_0_50577109.jpg."
¶ 4 A trial commenced on June 27, 2011. Blake DeWelde, a Round Lake Beach police officer, testified that on June 7, 2010, he arrived at defendant's apartment with other investigators to execute a search warrant. Defendant admitted that he had accounts with a website known as Mbuzzy. Defendant also turned over two cell phones that were admitted into evidence. Two T-Mobile phone bills for defendant's cell phone number were also retrieved and admitted into evidence. The bills show defendant's cell phone number but do not provide any details regarding uploaded images. Defendant's notebook, which contained information regarding his Mbuzzy accounts and numerous website addresses, was retrieved and admitted into evidence.
¶ 5 Ryan Nobrega, vice president of products for Send Me, Inc., the parent company of Mbuzzy, testified that Mbuzzy is a social network similar to Myspace or Facebook. The site allows users to create account profiles, upload photographs, and chat with other users. The site works heavily with mobile-phone users. Mbuzzy maintained records of user profiles as part of its ordinary course of business. Nobrega identified Mbuzzy user profile information for the user names "yngbigirl1, cuteguy2010, and iluvynggirls." In December 2009, Nobrega had an employee named Wei Liu. Liu handled all content moderation issues and supported the help desk. In December 2009, Liu made a report to the National Center for Missing and Exploited Children (NCMEC) with Nobrega's knowledge and assistance. Nobrega identified People's Exhibit Nos. 13, 14, and 15 as images reported to NCMEC. People's Exhibit No. 13 was an image with the file name "yngbigirl1_0_50465483.jpg"; People's Exhibit No. 14 was an image with the file name "yngbigirl1_0_50577108.jpg"; and People's Exhibit No. 15 was an image with the file name "yngbigirl1_0_50577109.jpg." Exhibit Nos. 13 and 14 contained the same image.
¶ 6 The images were being stored on Mbuzzy's main server in California for username "yngbigirl1." Nobrega testified that defendant's T-Mobile phone number was connected to the Mbuzzy "yngbigirl1" account that uploaded these images. Nobrega explained that an Mbuzzy customer could upload images from a computer, in which case an IP address would be seen. A person could also use a cell phone, in which case the image would be sent to Mbuzzy's computer as an e-mail with an attachment. Mbuzzy's computer would then pull the e-mail, process it, and attach the image to the user's account. Using People's Exhibit No. 11, Nobrega identified that 25 media uploads were done from defendant's phone on December 16, 2009, within a 4-minute time span. People's Exhibit No. 4 showed 25 thumbnail images taken from yngbigirl1's Mbuzzy account; 4 images were identical to Exhibit Nos. 13 and 14; 3 images were identical to Exhibit No. 15. People's Exhibit No. 4 was not published, because defendant was not charged with possessing the other photos. Exhibit No. 11 does not depict or otherwise identify what image was being sent to Mbuzzy; it merely states "media_upload" and specifies that the upload address was defendant's cell phone number @tmomail.net. Nobrega was not asked whether these images were visible to any other Mbuzzy user; he merely testified that the images were stored in defendant's account.
¶ 7 Michael Bruns, an investigator with the Illinois Attorney General's office, testified that in early January 2010 he received a case from NCMEC involving defendant's Mbuzzy account. Bruns went to defendant's home on June 7, 2010, and spoke to defendant and his aunt, Jody, who also lived in the residence. He informed defendant that he was there, with other investigators, to execute a search warrant. Defendant signed a Miranda waiver form and agreed to speak to Bruns. Defendant admitted that he had a T-Mobile cell phone number and that he used his cell phone to access the Internet, download pornography, download ringtones, play games, and send and receive text messages. Defendant admitted that he had three accounts with Mbuzzy: cuteguy2010, yngbigirl1, and iluvynggirls. Defendant admitted that he would search the Internet using search terms such as "lolita, jailbait, YO 15, YO 16" to look for suspect images. Bruns had a copy of the image contained in People's Exhibit Nos. 13 and 14 and copies of multiple images that NCMEC had sent to him. These images were labeled People's Exhibit Nos. 3 and 4. Bruns showed these images to defendant, who signed and dated the images. Defendant admitted that he found these images on the Internet through his phone and uploaded them to his "yngbigirl1" Mbuzzy account. Bruns identified People's Exhibit Nos. 13, 14, and 15 as images found among the thumbnail images in Exhibit Nos. 3 and 4. Bruns testified that defendant told him that Mbuzzy was an online storage space where he could store images because his phone did not have enough memory. Defendant said that he had deleted his Mbuzzy account and that it had been deleted for about six months, meaning he deleted the account in December 2009. He told Bruns that he deleted it because the images he uploaded were "too young."
¶ 8 Dean Kharasch, an investigator with the Lake County State's Attorney's office, testified that the cell phones retrieved had defendant's T-Mobile phone number, which he confirmed using cell phone forensic software.
¶ 9 The jury returned guilty verdicts on all three counts. Defendant moved for a new trial, and the trial court denied that motion. The court sentenced defendant to concurrent five-year prison terms. Defendant moved for reconsideration of his sentence, and the trial court denied that motion. Defendant timely appealed.
¶ 10 II. Discussion
¶ 11 On appeal, defendant contends that one of his convictions must be vacated because the same image cannot sustain two convictions where that image was stored in the same digital medium, albeit under different file names. In support of his contention, defendant argues that two of the three images were identical and that no images were recovered from his cell phone, but rather all three were recovered from his Mbuzzy account. Defendant acknowledges that this ...