People v. Leonard

Opinion

THIRD DIVISION November 7, 2007

No. 1-06-2501

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 04 CR 18452 ) JAMES LEONARD, ) Honorable ) David P. Sterba, Defendant-Appellant. ) Judge Presiding.

JUSTICE GREIMAN delivered the opinion of the court:

Following a bench trial, defendant James Leonard was

convicted of indecent solicitation of a child and sentenced to

three years' imprisonment. On appeal, defendant asserts that

neither his identity as the offender nor his intent to engage in

sexual conduct with a child was proven beyond a reasonable doubt.

He also contends that his sentence was excessive. We affirm.

James Schweitzer testified that he was a volunteer for an

online organization called "Perverted-Justice.com." As part of

his work for that organization, Schweitzer would attempt to

identify adults who use the Internet to contact children for

inappropriate sexual conversations or sexual encounters. On

October 15, 2003, Schweitzer created a fictitious online member

profile on the Yahoo.com Internet website. In that profile, 1-06-2501

Schweitzer represented himself as a 13-year-old girl from Oak

Park with the username "Baby_Cakes_1990." He also posted a

picture matching that description. He then used this member

profile to enter a public Chicago regional "chat room."

Schweitzer soon began a conversation with someone with the

username "JLeno9@yahoo.com," whereupon he suggested that the two

continue the conversation via a private instant messenger

program. Schweitzer made this suggestion because it would allow

him to activate an archiving function that would keep a log of

the conversation. In the online conversation, JLeno9 identified

himself as Jim, a married man living in the south Chicago

suburbs. Schweitzer again confirmed his assumed identity as a

13-year-old girl from Oak Park.

JLeno9 began commenting on how attractive he found

Baby_Cakes_1990 and asked her to send him another photo.

Schweitzer complied, and in turn JLeno9 sent two photos of

himself in various stages of undress from a Comcast.com e-mail

address. JLeno9 also told Baby_Cakes_1990 that he wanted her to

pose nude for him and wanted to engage in oral sex with her. The

two began discussing how to arrange a meeting.

JLeno9 eventually provided his home and cell phone numbers,

and Baby_Cakes_1990 stated that she would call him. JLeno9

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should answer both calls "hey becka" to confirm his identity.

Schweitzer testified that his wife then placed a phone call to

each number, and each time a man answered "hey becka." At that

point, Schweitzer ended the conversation by informing JLeno9 that

his name, telephone numbers, photo, and a transcript of the

online chat log would soon be posted on Perverted-Justice.com's

website.

Schweitzer posted a copy of the chat on the group's website,

but did not immediately contact the police because at the time

his organization did not have a policy to do so. He subsequently

contacted the Orland Park police department and gave them a copy

of the chat log. The police thereafter made a copy of the entire

contents of his computer hard drive for use in their

investigation.

Schweitzer also acknowledged that he provided the police

with two versions of the online chat log. One was the text-based

file that he had initially provided and which included some

additional commentary. This version also indicated that the

online conversation had occurred between 9:23 and 9:53 p.m. on

October 15, 2003. The other version was a copy of the chat log

that the police pulled directly from his hard drive and was

completely unaltered. However, that version indicated that the

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conversation had occurred exactly one hour earlier. Schweitzer

explained that the time-stamp on the first document was provided

by an offsite server located in another time zone, while the

time-stamp on the latter document was provided by his personal

computer and was set to the local time.

Schweitzer could not explain why the Perverted-Justice.com

website seemed to indicate that the chat log had been posted on

October 15, 2003, at 5:41 Pacific Time. He explained that the

server for the website was located in Portland, Oregon, and he

had no control over whether that computer was properly calibrated

or properly accounted for, among other things, daylight savings

time.

Schweitzer's wife, Tobi Steinmetz, testified consistently

with her husband. She also indicated that the man she spoke to

on the telephone confirmed that he was "serious" about arranging

a meeting.

Detective Dennis Pratl of the Orland Park police department

testified that he first became involved in this case when he

received an anonymous phone call directing him to the Perverted-

Justice.com website. He read the chat log posted on the website,

along with additional information indicating that JLneno9 was

actually defendant. Pratl unsuccessfully attempted to engage

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defendant in an online chat and later met with Schweitzer and

received the text-based copy of the chat log, as well as copies

of the two photos defendant had sent.

Pratl obtained a search warrant for defendant's home, in

part, to secure a particular camera that he believed had been

used to take the photos. The camera was not located, but four

computers were recovered. Pratl and Detective Anthony Balzanto

of the Tinley Park police department subsequently obtained a

complete copy of the hard drive in Schweitzer's computer.

Detective Balzanto was declared an expert in computer

forensics and confirmed that he obtained a copy of Schweitzer's

hard drive. He stated that he recovered what appeared to be an

unaltered copy of the October 15, 2003, online chat log.

The parties stipulated that Special Agent Darrin Kimes of

the United States Secret Service was an expert in forensic

computer examination and had analyzed the computers recovered

from defendant's home. His search for the username JLeno9

yielded an e-mail addressed to "JLeno9@hotmail.com." The parties

also stipulated that the two telephone numbers provided by JLeno9

during the online chat were both registered to defendant.

The trial court accepted into evidence two copies of the

online chat log, the two photographs of defendant, and a

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certified copy of defendant's birth certificate establishing that

he was over the age of 17 on October 15, 2003. The court also

accepted a letter from Yahoo.com indicating that, as of May 23,

2004, it had no information regarding a "JLeno9" and a letter

from Comcast.com indicating that defendant had a number of

Comcast.com e-mail addresses registered in his name. Lastly,

defendant entered into evidence a printout of a portion of the

Perverted-Justice.com website, which indicated that defendant was

"busted" by Schweitzer at "10/15/2003 5:41 PM PST."

Defendant was found guilty of indecent solicitation of a

child. After considering arguments and evidence in aggravation

and mitigation, including defendant's lack of any criminal

history and his long-time employment as a high school teacher,

the trial court sentenced defendant to three years' imprisonment.

On appeal, defendant first argues that the State failed to

sufficiently establish either his identity as the offender or his

intent to engage in sexual conduct with a child. We disagree.

When presented with such a challenge, we view the evidence

in the light most favorable to the State and determine whether

any rational trier of fact could have found the elements of the

crime proven beyond a reasonable doubt. People v. Collins, 106

Ill. 2d 237, 261 (1985). We do not substitute our judgment for

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the trial court's on such issues as the weight of the evidence,

the conflicts presented by the evidence, and the credibility of

the witnesses. Collins, 106 Ill. 2d at 261-62. Moreover, it is

for the trial judge to draw reasonable inferences from the

evidence before it in a bench trial and it is not our role to

retry a defendant. People v. Slim, 127 Ill. 2d 302, 307 (1989);

People v. Aguilar, 366 Ill. App. 3d 341, 343 (2006). A reversal

is warranted only if the evidence is so improbable or

unsatisfactory that it leaves a reasonable doubt regarding the

defendant’s guilt. Collins, 106 Ill. 2d at 261. Despite

defendant's argument to the contrary, this standard applies

whether the evidence is direct or circumstantial. People v.

Cooper, 194 Ill. 2d 419, 431 (2000).

Section 11-6(a) of the Criminal Code of 1961 (Code) defines

the offense of indecent solicitation of a child a follows:

"(a) A person of the age of 17 years and

upwards commits the offense of indecent

solicitation of a child if the person, with

the intent that the offense of aggravated

criminal sexual assault, criminal sexual

assault, predatory criminal sexual assault of

a child, or aggravated criminal sexual abuse

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be committed, knowingly solicits a child or

one whom he or she believes to be a child to

perform an act of sexual penetration or

sexual conduct as defined in Section 12-12 of

this Code." 720 ILCS 5/11-6(a) (West 2002).

"Child" is further defined as a person under 17 years of age and

"solicit" is defined as "to command, authorize, urge, incite,

request, or advise another to perform an act by any means

including, but not limited to, in person, over the phone, in

writing, by computer, or by advertisement of any kind." 720 ILCS

5/11-6(b) (West 2002). Section 12-12(f) of the Code includes

oral sex in its definition of "sexual penetration." 720 ILCS

5/12-12(f) (West 2002). Furthermore, oral sex with between a

person 13 to 17 years of age and another at least 5 years older

constitutes aggravated criminal sexual abuse. 720 ILCS 5/12-

16(d) (West 2002).

Defendant makes a number of arguments in support of his

position. He contends that the State never proved that he had

exclusive control of the computer equipment in his home and notes

that the search of his home did not yield the camera the police

believed had taken the photos e-mailed to Schweitzer. He notes

that the only reference to "JLeno9" found on his computer

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equipment was with regard to a Hotmail.com e-mail address, and

that Yahoo.com itself did not have any record of such a username.

He also notes the discrepancies in the time-stamps on the two

chat logs provided to the police, along with the time of the

"bust" indicated on the Perverted-Justice.com website. He also

distinguishes this case from two prior cases where intent was

proven by evidence that the offenders were arrested at a set time

and place, expecting to meet a minor for sex. See People v.

Ruppenthal, 331 Ill. App. 3d 916, 921 (2002); People v. Arndt,

351 Ill. App. 3d 505, 513-15 (2004).

First, we reject defendant's reading of the Ruppenthal and

Arndt decisions. Both cases recognized that the "specific intent

required to prove the elements of the offense of solicitation can

be inferred from the surrounding circumstances and acts of the

defendant." Ruppenthal, 331 Ill. App. 3d at 920; Arndt, 351 Ill.

App. 3d at 513. To be sure, in those cases the courts relied on

the defendants' appearance at an agreed time and place as a

demonstration of their intent to engage in sexual acts with

minors. However, neither court required evidence of that

specific action, and the Arndt court specifically looked to other

evidence to support a finding of intent. Ruppenthal, 331 Ill.

App. 3d at 920; Arndt, 351 Ill. App. 3d at 513-14.

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In this case, the State presented more than enough evidence

to establish both defendant's identity and his intent. See

People v. Waters, 260 Ill. App. 3d 969, 974-75 (1994) (identity

may also be established by circumstantial evidence). As to his

identity, in the online chat JLeno9 identified himself as a

married man named Jim living in a south Chicago suburb.

Defendant's name is James Leonard, he is married, and he lives in

Orland Park. An e-mail sent to a "JLeno9," albeit one addressed

to a Hotmail.com and not a Yahoo.com account, was found on

defendant's computer. Two photos that the trial court

specifically found to be of defendant were sent from a

Comcast.com e-mail address, and defendant had a number of

Comcast.com e-mail accounts registered in his name. Moreover,

JLeno9 provided two of defendant's telephone numbers to

Schweitzer, and when those two numbers were called, a male voice

immediately answered with the phrase provided in the online chat.

The State also established defendant's intent to engage in

oral sex with someone he believed to be a child. The profile for

Baby_Cakes_1990 indicated she was a 13-year-old girl and during

the online chat Schweitzer confirmed this identity. Defendant

sent nude photos of himself and clearly stated his desire to take

nude photos of Baby_Cakes_1990 and engage in oral sex with her.

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He provided two telephone numbers and answered two telephone

calls with the requested phrase in an effort to arrange a meeting

for sex. Defendant also confirmed that he was "serious" about

the meeting.

In sum, we have no doubt that the State adequately proved

both defendant's identity and intent. We certainly cannot say

that the evidence is so improbable or unsatisfactory that it

leaves a reasonable doubt regarding the defendant’s guilt.

Collins, 106 Ill. 2d at 261.

Defendant next contends his prison sentence was excessive in

light of his lack of criminal history. While we agree with the

State that defendant waived this issue by failing to file a

motion to reconsider his sentence, we will nevertheless address

defendant's claim. People v. Ford, 368 Ill. App. 3d 271, 277

(2006).

When a defendant challenges his sentence on appeal, we

generally defer to the trial court's judgment because it had the

opportunity to observe the proceedings and is therefore in a

better position than a reviewing court. People v. Stacey, 193

Ill. 2d 203, 209 (2000). Accordingly, we review the trial

court's sentencing determination against an abuse of discretion

standard and will reverse a sentence within the prescribed

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statutory limits only if it varies with "the spirit and purpose

of the law" or is "manifestly disproportionate to the nature of

the offense." Stacey, 193 Ill. 2d at 210.

Defendant was convicted of a Class 3 felony, which was

punishable by two to five years' imprisonment. 720 ILCS 5/11-

6(c) (West 2002). The record shows that the trial court was

aware of the defendant's lack of criminal history and balanced

this against the nature of the offense and the fact that he had

been a school teacher. The court also found that a period of

probation would depreciate the seriousness of defendant's

conduct. The three-year sentence ultimately imposed falls within

the statutory range and does not represent an abuse of

discretion.

For the foregoing reasons, the judgment of the circuit court

is affirmed.

Affirmed.

THEIS, J., and CUNNINGHAM, J., concur.

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