People v. Phillips

• Decision Date: 03 June 2005
• Docket Number: No. 98070.,98070.
• Citation: 215 Ill.2d 554,831 N.E.2d 574
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Rudy PHILLIPS, Appellant.
• Court: Illinois Supreme Court

Page 574

831 N.E.2d 574

215 Ill.2d 554

The PEOPLE of the State of Illinois, Appellee, v. Rudy PHILLIPS, Appellant.

No. 98070.

Supreme Court of Illinois.

June 3, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Richard J. Dvorak, Office of the State Appellate Defender, Chicago, for appellant.

Lisa Madigan, Attorney General, Springfield, Edward D. Smith, State's Attorney, Kankakee (Gary Feinerman, Solicitor General, Linda D. Woloshin, Jonathan J. Silbermann, Assistant Attorneys General, Chicago, of counsel), for the People.

Justice GARMAN delivered the opinion of the court:

Defendant, Rudy Phillips, was arrested after a technician found child pornography on defendant's computer and informed the police. Defendant made incriminating statements and consented to a search of his home, which found more apparent child pornography. He was charged by indictment with one count of possessing, with intent to disseminate, a picture of a child engaged in sexual intercourse (720 ILCS 5/11-20.1(a)(1)(i), (a)(2) (West 2000)), and two counts of possessing, with intent to disseminate, a picture of a child engaged in oral sex (720 ILCS 5/11-20.1(a)(1)(ii), (a)(2) (West 2000)). Defendant filed a motion to quash arrest and suppress evidence, which was denied. After a bench trial in the circuit court of Kankakee County, he was convicted of all three counts. Defendant appealed, claiming the child pornography statute is unconstitutionally overbroad, that the indictment was defective, that the circuit court erred in denying his motion to quash arrest and suppress evidence, and that he was not proved guilty beyond a reasonable doubt. The appellate court affirmed, with one justice dissenting. 346 Ill.App.3d 487, 282 Ill.Dec. 48, 805 N.E.2d 667. Defendant sought and obtained leave to appeal to this court. See 177 Ill.2d R. 315. He has abandoned his constitutional attack on the statute, but renews his other claims.

BACKGROUND

On October 11, 2001, defendant took his computer to Fifth Avenue Video in Kankakee to have it repaired. Defendant had originally purchased the computer from John Paris, the proprietor of Fifth Avenue Video. On the morning of October 12, after repairing the computer, Paris tested it by playing an MPG file he accessed through the My Documents menu on the Windows 98 desktop. The file proved to be a short video depicting what appeared to be a young girl performing oral sex on a man, with a woman looking on. Paris immediately called Detective Buhrmester of the Bradley police department, because he was an acquaintance. He told Buhrmester what he had seen, and asked him to come and look at it.

When Buhrmester arrived, Paris played the video for him. Buhrmester agreed it was child pornography and informed other officers. At about 10 a.m. Detectives Coy and Morris arrived, and Paris played the video for them. There is conflicting testimony regarding whether Coy and Morris proceeded to examine other files on defendant's computer while they were at Fifth Avenue Video. The officers decided to place Fifth Avenue Video under surveillance, and asked Paris to contact them by cell phone when defendant returned to pick up his computer. Paris did so. The officers stopped defendant outside the store and, after he identified himself and told them the computer was his, they arrested him and seized his computer.

At the police station defendant received Miranda warnings and agreed to speak with the officers. Morris testified defendant said he did not produce child pornography, but was just a collector who exchanged child pornography over the Internet, and that he would post child pornography on Web sites in order to become a member. Defendant also admitted there was child pornography at his home. He consented in writing to a search of his home.

At defendant's home, he handed the officers two pictures that appeared to have been downloaded and printed from the Internet. Each picture was sexually explicit and appeared to depict a preteen girl. Defendant next showed the officers a box of 3-by 5-inch computer disks and told them the disks contained child pornography. The officers loaded several of the disks into a laptop computer brought for that purpose, and viewed numerous pictures of what appeared to be children engaged in vaginal, anal, and oral sex. The officers seized the two printed pictures, over 100 disks, and various pieces of computer equipment. Defendant was later indicted.

Defendant filed a motion to quash arrest and suppress evidence, in which he argued the warrantless search of his computer was illegal because Paris lacked authority to consent to a search of his computer. After a hearing in which Paris and Morris testified to the facts recounted above, the court denied the motion. The court found Paris' initial search of the file on defendant's computer was the act of a private citizen, not an agent of law enforcement. The court further found that the police viewed the same video Paris viewed, and by doing so they acquired probable cause to arrest defendant. The court found the officers had probably not viewed any items on defendant's computer other than the video Paris viewed.

Defendant then filed a motion to reconsider the denial of his motion to suppress. The court issued a written ruling in which it again held the police could legally arrest defendant after viewing the video Paris viewed. However, the court reversed its finding that the police had not viewed any other files. The court accordingly barred the State from using at trial any file obtained from defendant's computer other than the one Paris had discovered.

At trial, Paris and Morris again testified to the facts recounted above. The State introduced the two printed pictures defendant turned over to police, as well as a number of pictures printed from the disks seized from defendant's home. Finally the court admitted the disks, and viewed a small sample of the pictures that were stored on the disks but had not been printed. Each of the pictures from the disks appeared to depict a child engaged in a sex act, including sexual intercourse and performing or receiving oral sex.

The court made a number of express findings before announcing its verdict. First, the court found the police did not "exceed the scope of the initial search by the private citizen." The court then found the pictures admitted at trial depicted real children under the age of 18. Regarding the element of intent to disseminate the pictures, the court noted there were duplicate pictures in evidence, which by statute creates a rebuttable presumption of intent. However, the court then stated that, "[w]ithout considering the two instances of duplicate [sic]," it found Morris' testimony that defendant admitted he exchanged child pornography over the Internet to be "very credible." The court then found the State had proven possession of child pornography with intent to disseminate as to all three counts. The court later sentenced defendant to concurrent terms of 4½ years and a $1,000 fine for each count. Defendant appealed.

ANALYSIS

I. The Indictment

Defendant argues for the first time on appeal that the indictment was defective for failure to adequately inform him of the charges. He also argues his trial counsel was ineffective for failing to attack the indictment or request a bill of particulars.

"Where a defendant challenges the sufficiency of an indictment or information for the first time on appeal, a reviewing court need only determine whether the charging instrument apprised the defendant of the precise offense charged with enough specificity to prepare his or her defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. [Citations.] In making this determination, the reviewing court may resort to the record. [Citation.]" People v. Maggette, 195 Ill.2d 336, 347-48, 254 Ill.Dec. 299, 747 N.E.2d 339 (2001).

Thus, the question is whether, in light of the facts of record, the indictment was so imprecise as to prejudice defendant's ability to prepare a defense. See People v. Thingvold, 145 Ill.2d 441, 448, 164 Ill.Dec. 877, 584 N.E.2d 89 (1991).

The indictment charged defendant as follows:

"Count I * * * That on or about the 11th day of October, 2001, in the County of Kankakee and State of Illinois, [the defendant] committed the offense of CHILD PORNOGRAPHY, in that said defendant, with the knowledge of the nature or content thereof, possessed, with intent to disseminate, a photograph or other similar visual reproduction or depiction by computer, of a child whom he knew or reasonably should have known to be under the age of 18, actually or by simulation engaged in an act of sexual intercourse with another person, in violation of Chapter 720, Paragraph 5/11-20.1(a)(2)(i) of the Illinois Compiled Statutes.

Count II * * * That on or about the 11th day of October, 2001, in the County of Kankakee and State of Illinois, [the defendant] committed the offense of CHILD PORNOGRAPHY, in that said defendant, with the knowledge of the nature or content thereof, possessed, with intent to disseminate, a photograph or other similar visual reproduction or depiction by computer, of a child whom he knew or reasonably should have known to be under the age of 18, actually or by simulation engaged in an act of sexual contact involving the mouth of the child and the sex organs of another person, in violation of Chapter 720, Paragraph 5/11-20.1(a)(2)(ii) of the Illinois Compiled Statutes.

Count III * * * That on or about the 11th day of October, 2001, in the County of Kankakee and State of Illinois, [the defendant] committed the offense of CHILD PORNOGRAPHY, in that said defendant, with the knowledge of the nature or content thereof, possessed, with intent to disseminate, a photograph or other similar visual reproduction or depiction by computer, of a child whom he knew or reasonably should have known to be under the age of 18, actually or by...