People v. JOSEPHITIS

914 N.E.2d 607, 394 Ill. App. 3d 293, 333 Ill. Dec. 188, 2009 Ill. App. LEXIS 784
CourtAppellate Court of Illinois
DecidedAugust 19, 2009
Docket1-07-2147
StatusPublished
Cited by18 cases

This text of 914 N.E.2d 607 (People v. JOSEPHITIS) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. JOSEPHITIS, 914 N.E.2d 607, 394 Ill. App. 3d 293, 333 Ill. Dec. 188, 2009 Ill. App. LEXIS 784 (Ill. Ct. App. 2009).

Opinion

PRESIDING JUSTICE MURPHY

delivered the opinion of the court:

Following a bench trial, defendant was found guilty of possessing child pornography. 720 ILCS 5/11 — 20.1(a)(6) (West 2006). On July 6, 2007, the trial court considered defendant’s motion for a new trial and rejected his claim that it erred in denying his motion for directed verdict. Following arguments in mitigation and aggravation, the trial court sentenced defendant to 2 years’ probation, 30 days in Cook County corrections, sex offender counseling, no Internet access, and no unsupervised contact with any children under the age of 17. Defendant also was required to register as a sex offender and submit to DNA testing. Defendant timely filed his notice of appeal and argues before this court that the State failed to establish that he knowingly downloaded or possessed the images and his conviction must be reversed. For the following reasons, we affirm the holding of the trial court.

I. BACKGROUND

At trial, the State presented the testimony of one witness, Detective James Jarolimek of the Chicago Ridge police department, and the stipulations of two experts in computer forensic examination. Jarolimek testified that in March 2004, under federal operations to curb child pornography, a federal customs agent had contacted him to inform him that defendant was potentially in possession of child pornography. Jarolimek called defendant and requested that he come to the police station.

On March 11, 2004, defendant arrived at the Chicago Ridge police department. After being advised of his Miranda rights, defendant was interviewed by Jarolimek and Chief Baldermann. Defendant was informed that he was suspected of possessing images of child pornography. Defendant admitted that he had joined a Web site called “Dark Feelings” using his Marriott Visa credit card. Utilizing his laptop computer, defendant viewed images of child pornography through that Web site. This information matched the information the customs agent had forwarded to Jarolimek.

Jarolimek testified that defendant indicated that he viewed nude pictures of girls between the ages of 8 and 10 on the laptop and that only he had access to that computer. Jarolimek requested defendant’s credit card and he made a copy of it. Defendant was asked if they could have permission to return to and search defendant’s home. Defendant agreed and signed a form granting permission to search his residence. Jarolimek and Baldermann also signed the consent form.

At defendant’s residence, he led the police to his bedroom to retrieve his laptop. Jarolimek testified that defendant turned on the laptop, signed on, clicked on “favorites” and images came on the screen of naked young girls from a Web site. Jarolimek informed defendant that they wanted to take his computer with them to the police department for further examination and defendant cooperated. On March 31, 2004, Jarolimek brought defendant’s computer to the United States Customs Office in Oak Brook, Illinois, for examination by Special Agent Jose Nieves. On April 15, 2004, the laptop and two CD-ROMs containing all images from the hard drive were returned to Jarolimek, who returned them to the Chicago Ridge police department and inventoried them.

Jarolimek testified that images of naked young girls were found on the hard drive and on the CD-ROMs and defendant was called back to the police department. Jarolimek and Nieves questioned defendant, who admitted that he had viewed those pictures on a prior occasion at his house. Jarolimek identified printed copies of six pictures retrieved from defendant’s computer cache file that defendant admitted he had viewed. The pictures were entered into evidence. Jarolimek testified that following defendant’s admissions, an assistant State’s Attorney was called in and defendant gave a written statement.

Defendant’s statement was published to the court and Jarolimek summarized the statement from the stand. Defendant, a 57-year-old repairman for the Chicago Transit Authority, stated that he was married with two children and that he lived with his wife, son and daughter-in-law. Defendant subscribed to Internet provider America Online and had a general user name and password for household use on a PC. Defendant also had his own separate name and password that only he used on his laptop.

Defendant admitted that the pictures entered into evidence as exhibits by the State were put on the computer by defendant and that they were on his computer on March 11, 2004. Defendant described each of the six pictures found on his computer that were attached to his statement and entered into evidence. Each picture depicted one or two naked girls posed in a lewd exhibition of their genitals, pubic area, breasts, or buttocks.

Defendant stated that to find these pictures, he would open e-mails which contained addresses for various sites with pictures of girls ranging in age from 6 to 13 years old. Once at these Web sites, defendant would subscribe to the site using his Marriott Visa credit card. Defendant stated that over the prior year he had subscribed to at least three sites and viewed and “stored” photos of naked girls aged 6 to 13. Defendant admitted that he viewed the images by himself because he had difficulty getting an erection and ejaculating without viewing them. Defendant further stated that his interest lies only in girls in that age range and that he wants to receive help.

Defense counsel did not cross-examine Jarolimek. The State next presented stipulations of two experts who conducted forensic examinations of defendant’s laptop computer. The experts stated that 718 images of child pornography were found on defendant’s computer depicting girls, ages 6 to 14, posing nude and engaging in various sexual acts with each other. These images were all very small files, mostly less than 100 kilobytes in size. The experts found evidence that defendant had browsed numerous sites to find these pictures.

The images were created between February 21, 2004, and March 11, 2004, and were stored in the “Temporary Internet Files” folder. The experts stated that this folder is where the browser “caches” 1 images upon browsing a Web site and that the “naming convention, the proximity of the creation dates, and the small resolution of the images indicate that the images were generated automatically by Internet Explorer Volume 6.” They stated that the only files stored in this path are automatically cached files and that the directory is typically hidden unless a user specifically requests it be open. They explained that for every Web site visited, Internet Explorer stores a compressed copy of every image for faster future visits and that each picture found on defendant’s computer was one of these small, compressed images. No evidence of user-created or manually downloaded pornographic images were found.

The State rested and defendant filed a motion for directed finding. The trial court denied defendant’s motion. The defense then rested without presenting evidence. Following closing arguments, the trial court determined that the State had met its burden of proof.

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Bluebook (online)
914 N.E.2d 607, 394 Ill. App. 3d 293, 333 Ill. Dec. 188, 2009 Ill. App. LEXIS 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-josephitis-illappct-2009.