People v. Phillips

• Decision Date: 24 February 2004
• Docket Number: No. 3-02-0506.,3-02-0506.
• Citation: 282 Ill.Dec. 48,805 N.E.2d 667,346 Ill. App.3d 487
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Rudy PHILLIPS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

805 N.E.2d 667

346 Ill. App.3d 487

282 Ill.Dec. 48

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

No. 3-02-0506.

Appellate Court of Illinois, Third District.

February 24, 2004.

Santiago A. Durango, Office of the State Appellate Defender, Ottawa, Richard Dvorak (argued), Chicago, for Rudy Phillips.

Lawrence M. Bauer, Deputy Director, State's Attorneys Appellate Prosecutor, Ottawa, Edward D. Smith, State's Attorney, Kankakee, Dawn D. Duffy (argued), State's Attorneys Appellate Prosecutor, Ottawa, for the People.

Justice SCHMIDT delivered the opinion of the court:

Defendant, Rudy Phillips, was found guilty on three counts via a bench trial of violating Illinois's child pornography statute. 720 ILCS 5/11-20.1 (West 2000). Defendant appeals the verdict of the Kankakee County circuit court.

BACKGROUND

On October 11, 2001, defendant took his computer to a repair shop for repairs. The owner of the shop had originally built the computer for defendant. Defendant claims he only asked the owner to fix various sound problems he was having on the computer and also to fix the Windows operating system.

The shop owner claimed that the defendant asked him to fix the computer's video, audio and modem. In an attempt to fix these problems, the shop owner reinstalled Windows Media Player. Then, while testing the computer's audio and video, the owner clicked on "My Documents," which is part of the default desktop. The owner accessed the first document that contained a MPG video file during this test.

The video selected by the shop owner "appeared to be an 8 to 10 year-old girl performing oral sex on an older man." Upon seeing this video, the shop owner called a friend at the Bradley police department. Detective Buhrmester arrived approximately 20 minutes later at the repair shop. The shop owner testified that he then asked Detective Buhrmester to "come and take a look at it." The shop owner then showed Detective Buhrmester the video.

Detective Buhrmester then called two more detectives, who arrived approximately 45 minutes later. It was decided that the defendant would be allowed to pick up his computer, and after he did so, the shop owner would call the detective's cellular phone. The defendant arrived, picked up his computer and then was driven away from the repair shop by a friend. The police stopped the car carrying the defendant. After identifying the defendant, they asked if the computer was his and he responded affirmatively. Defendant was then arrested and his computer seized. Defendant was told that he was being investigated in relation to possession of child pornography.

Defendant was taken to the Bradley police department as the police believed he lived in Bradley. When it was discovered that he actually lived in Kankakee, the Bradley police contacted the Kankakee police department and two detectives from that department arrived at the Bradley police station. Defendant was read his Miranda rights from a preprinted form which he then signed. The defendant was again informed that he was being investigated for suspected possession of child pornography. The detectives asked defendant whether he was putting child pornography on the Internet, taking pictures of children and posting pictures on the Internet, or merely collecting pictures that were already on the Internet. The defendant stated he was not taking photographs, but merely "seeing how many he could collect." The detectives then asked defendant if he had any child pornography at his house to which he responded yes.

The defendant then signed a consent to search form for his residence in Kankakee. He was taken to his house, where he used his key to allow the detectives entry. The detectives asked him where the photography was located and he pointed to the bedroom.

While in the bedroom, defendant gave detectives various printouts that appeared to be of images downloaded from the Internet. Defendant also handed floppy disks to the detectives. The detectives loaded some of the disks into a police department laptop computer and viewed images stored on the disks. The detectives believed these images were of children under the age of 18 and as young as 3 years of age engaged in sexual acts. In total, 110 diskettes were collected from defendant's residence.

Defendant was taken back to the police station and reinterviewed. He was again asked what he had been doing with the child pornography found at his residence. He responded that he had been exchanging child pornography with individuals over the Internet and posting photographs in a community website.

No search warrants were ever obtained for anything seized at the defendant's house or for the computer taken to the repair shop.

The defendant was convicted in a bench trial of possessing with an intent to disseminate the following: child pornography depicting a child engaged in the act of sexual intercourse with another person (720 ILCS 5/11-20.1(a)(2)(i) (West 2000)); child pornography depicting a child engaged in an act of sexual contact involving the mouth of the child and sex organs of another (720 ILCS 5/11-20.1(a)(2)(ii) (West 2000)); and child pornography depicting a child engaged in an act of sexual contact involving the sex organ of the child and the mouth of another person (720 ILCS 5/11-20.1(a)(2)(ii) (West 2000)). On appeal, defendant raises three issues claiming they mandate a reversal of his conviction.

First, he claims Illinois's child pornography statute is unconstitutionally overbroad and therefore could not adequately apprise him of the charges against him. Second, defendant claims law enforcement officials violated his right to be free from unreasonable searches and seizures. Finally, defendant believes the State did not provide sufficient evidence to prove him guilty beyond a reasonable doubt. Included in this final argument is the contention that the State failed to admit any evidence that established the images depicted were of an actual child or that defendant possessed the requisite intent to disseminate child pornography. For the reasons set forth below, we affirm defendant's conviction.

ANALYSIS

On appeal, defendant attacks the sufficiency of the charging document for the first time. He initially claims that his "conviction for possession of child pornography with intent to distribute should be reversed because the indictment was based on an unconstitutional statute, and the vague and disjunctive language contained in the indictment did not adequately apprise the defendant of the charges against him." Because of this, he claims the indictment did not allow him to adequately prepare a defense nor would it serve as a bar to double jeopardy. He concludes by alleging that his trial attorney's failure to object to the sufficiency of the charging instrument and failure to request a bill of particulars denied him his right to effective assistance of counsel.

While attacking the indictment, defendant claims Illinois's child pornography statute is unconstitutional. We review the constitutionality of a criminal statute de novo. People v. Robinson, 172 Ill.2d 452, 217 Ill.Dec. 729, 667 N.E.2d 1305 (1996). Defendant claims Illinois's statute is "nearly identical" to the statute held unconstitutionally overbroad in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). After the defendant filed his appeal and his briefs in this matter, our supreme court directly addressed this issue in People v. Alexander, 204 Ill.2d 472, 274 Ill.Dec. 414, 791 N.E.2d 506 (2003).

In Alexander, our supreme court found that section 11-20.1(f)(7) of the Criminal Code of 1961 (720 ILCS 5/11-20.1(f)(7) (West 2000)) was "constitutionally infirm" based upon Ashcroft v. Free Speech Coalition. Alexander, 204 Ill.2d at 485, 274 Ill.Dec. 414, 791 N.E.2d 506. Alexander holds section 11-20.1(f)(7) is unconstitutional to the extent it bans child pornography involving virtual children. However, it specifically holds that "sections 11-20.1(a)(1) and 11-20.1(a)(6) prohibit, inter alia, making and possessing sexually explicit computer depictions of any actual child under 18 years of age. Accordingly, these sections pass strict scrutiny." Alexander, 204 Ill.2d at 486, 274 Ill.Dec. 414, 791 N.E.2d 506.

The Alexander court, while discussing the same argument that defendant makes here, noted "the defendant's argument is essentially a flawed syllogism: Ashcroft invalidated content-based restrictions on virtual child pornography; virtual child pornography often contains computer-graphic images; therefore, Ashcroft invalidated restrictions on computer depictions of child pornography. But not all computer depictions of child pornography are virtual child pornography." Alexander, 204 Ill.2d at 486, 274 Ill.Dec. 414, 791 N.E.2d 506.

Finally, the Alexander court held that "Ashcroft addressed only the question of whether a criminal prohibition of virtual child pornography-child pornography produced without using actual children-violated the first amendment. It did not invalidate all child pornography laws." Alexander, 204 Ill.2d at 487, 274 Ill.Dec. 414, 791 N.E.2d 506.

The Alexander court found that sections 11-20.1(a)(1) and 11-20.1(a)(6) passed strict constitutional scrutiny. These sections deal with making child pornography in which children are engaged in any act of sexual intercourse (section 11-20.1(a)(1)) and are bound, fettered, or subject to sadistic, masochistic, or sadomasochistic abuse in any sexual conduct (section 11-20.1(a)(6)).

The defendant at bar was charged with two counts of violating section 11-20.1(a)(2), which deals with the reproduction and dissemination of actual child pornography. The language contained in section 11-20.1(a)(2) regarding the "depiction by computer of any child" is identical to that in section 11-20.1(a)(1). 720 ILCS 5/11-20.1(a)(1), (a)(2) (West Supp.2001). Applying Alexander, we hold that section 11-20.1(a)...