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People v. Maillet

Court of Appeals of Illinois, Second District

July 1, 2019

THE PEOPLE OF THE STATE OF ILLINOIS Plaintiff-Appellee,
v.
DANIEL A. MAILLET, Defendant-Appellant.

          Appeal from the Circuit Court of De Kalb County. No. 12-CF-788 Honorable Robbin J. Stuckert, Judge, Presiding.

          JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Zenoff and Spence concurred in the judgment and opinion.

          OPINION

          BURKE JUSTICE

         ¶ 1 Following a bench trial, defendant, Daniel A. Maillet, was found guilty of two counts of unauthorized video recording. Count I alleged that, on or about November 12, 2012, defendant knowingly made a video recording of B.P., who was under the age of 18 at the time, in B.P.'s residence, without her consent, in violation of section 26-4(a-5) of the Criminal Code of 2012 (Code) (720 ILCS 5/26-4(a-5) (West 2012)). Count II alleged that, on or about November 12, 2012, defendant knowingly made a video recording of B.P., without her consent, while B.P. was in a restroom, in violation of section 26-4(a) of the Code (id. § 26-4(a)). The trial court merged count II into count I and sentenced defendant to 30 months' probation and 50 hours of community service. Defendant appeals, contending that his conviction rests upon the trial court's erroneous construction of sections 26-4(a) and 26-4(a-5) and that both sections are unconstitutional on first amendment and due process grounds. We affirm.

         ¶ 2 I. FACTS

         ¶ 3 Defendant was indicted on six counts. In addition to the charges of unauthorized video recording in counts I and II, defendant was charged with possession of child pornography, attempted unlawful possession of child pornography, child pornography and attempted child pornography. Defendant moved to dismiss the counts on various bases, including that counts I and II were unconstitutional. All of his motions to dismiss were denied.

         ¶ 4 B.P. testified at trial that she lived in a single family residence in De Kalb with her mother, Tracie Maillet, and two sisters. On November 21, 2012, defendant, B.P.'s stepfather, also lived at the residence. On November 21, 2012, when she was 15 years old, she told defendant that she was going to take a shower, because defendant also intended to take a shower and, although the home had two bathrooms, only one of the showers was working. Defendant took his shower first and, when he had finished, he told B.P. to go ahead and take her shower. Defendant left the house while B.P. was preparing to shower. After she turned on the water in the shower, B.P. turned and noticed an iPod "kind of covered by clothes" on top of a laundry basket in the bedroom, by the bathroom door.

         ¶ 5 B.P. watched the video recording and then hid it in her room. On the recording, B.P. saw defendant setting it up followed by a long period of time in which nothing happened. After that, she saw herself walking into the bathroom and turning on the shower. B.P. testified that she did not know that the bathroom was being recorded before she discovered the iPod. She and defendant had never discussed making video recordings.

         ¶ 6 B.P. further testified that, when defendant returned home, he spoke to her through her locked bedroom door, telling her that he knew that she had found the recording and asking her to let him in so that they could talk about it. Once B.P. opened the door, defendant told her "that he knew it was wrong and he shouldn't have done it and if I tell anyone [about it] he won't be able to see his daughter again and if I don't tell anyone he'll fix the other bathroom so it will never happen again." After speaking with B.P., defendant left for work. When Tracie came home, B.P. told her what had happened.

         ¶ 7 Tracie testified that she had been married to defendant for six years but that they were now separated. Defendant is the biological father of one of her daughters.

         ¶ 8 When Tracie returned home from work on November 21, 2012, B.P. told Tracie that she had been video recorded by defendant. Tracie viewed the recording on the iPod. After she saw it, Tracie called B.P.'s father, then she called defendant, and then she called the police. Defendant told her that he knew that she was going to call the police and that she should go ahead and call them. He told her that he was sorry and knew that Tracie was never going to forgive him. Tracie identified a State's exhibit as a text message she had received from defendant on November 21, 2012, stating: "If you call the cops, let me know so I can turn myself in. Saying I'm sorry is not going to fix this. What I did is wrong. I know I lost your respect and the girls' respect."

         ¶ 9 Detective Craig Woodruff of the De Kalb Police Department was called to the Maillet residence on November 21, 2012. Tracie reported what had happened to her daughter and she gave Woodruff the iPod, telling him that it belonged to Tracie. While at the residence, Woodruff received a call from dispatch reporting that defendant was at the police station. At the station, defendant admitted that he had video recorded B.P. while she was in the bathroom.

         ¶ 10 The trial court found defendant guilty of count I (id. § 26-4(a-5)) and count II (id. § 26-4(a)) but not guilty of the remaining counts with which he was charged.

         ¶ 11 Defendant filed a motion to reconsider, which was denied. The trial court merged count II into count I and sentenced defendant. Defendant timely appeals.

         ¶ 12 II. ANALYSIS

         ¶ 13 A. Section 26-4(a-5)

         ¶ 14 The two provisions of the unauthorized-video-recording statute at issue on appeal prohibit a person from knowingly making a video recording of another person, without that person's consent, in specific places. The first provision at issue, section 26-4(a-5), prohibits "any person [from] knowingly mak[ing] a video record or transmit[ting] live video of another person in that other person's residence without that person's consent." Id. ยง 26-4(a-5). Defendant argues that the phrase "that other person's residence" should not apply to video recordings in a defendant's own residence. In other words, according to defendant, a proper reading of section 26-4(a-5) is that ...


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