People v. Leonard ( 2007 )

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,
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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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