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07/11/89 the People of the State of v. Michael A. Johnson

July 11, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MICHAEL A. JOHNSON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

542 N.E.2d 143, 186 Ill. App. 3d 116, 134 Ill. Dec. 143 1989.IL.1087

Appeal from the Circuit Court of Cook County; the Hon. Christy S. Berkos, Judge, presiding.

APPELLATE Judges:

JUSTICE SCARIANO delivered the opinion of the court. BILANDIC, P.J., and HARTMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

After a bench trial, defendant was convicted of the offense of child pornography (Ill. Rev. Stat. 1983, ch. 38, par. 11-20.1(a)(2)) and sentenced to two years' felony probation. He now appeals and presents the following issue for review: whether the trial court properly found him guilty of child pornography on the basis of his being in possession of books depicting nude photographs of girls under the age of 16.

During the course of investigating the distribution of child pornography, United States Postal Inspector John Ruberti received a letter from defendant in response to an ad Ruberti had placed, stating that defendant wanted to start a private collection of young girls "in action." During the next few months, Ruberti used the pseudonym "Linda," under which he exchanged several letters with defendant. Through these letters, defendant indicated the type of books he had in his possession and offered to meet and exchange books with his correspondent.

Defendant and "Linda" agreed to meet at an apartment at 515 West Melrose in Chicago. Watching the meeting by way of a hidden closed circuit camera, Ruberti saw defendant give three magazines (exhibits 14, 15, and 16) to a confidential informant and heard him agree to return at a later date with more material. Defendant was arrested at the second meeting, at which he was in possession of three additional magazines (exhibits 17, 18, and 19). After being advised of his Miranda rights, defendant told the arresting officers that he had a desire to have sex with girls between the ages of 13 and 16, and that he had ordered the magazines to satisfy his curiosity. Defendant was 31 years old at the time of trial.

After viewing the exhibits, the court stated that it did not consider the photos in exhibits 17, 18, and 19 to be child pornography because it could not determine that the girls pictured there were under 18 years old. However, the court found exhibits 14, 15, and 16, viewed in their entirety, to be a violation of the law, the Judge stating:

"There are hundreds of pictures in this book. There is no way that I can say number one in the upper right-hand corner of the page that is not even marked, doesn't have any number, is and the other one isn't.

What I'm saying, these two books or three books -- and more particularly exhibits 14 and 15 in their entirety, looked at in their entirety, are a violation of the law.

There are some books -- some pictures in there that don't portray the genital areas. They are not going to be a violation. I don't think those who will be reviewing this case are going to have any problem. They are going to look at the books and they are going to make a decision based on the entirety of the evidence.", Defendant was convicted under section 11-20.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 11-20.1):

"11--20.1.(a) A person commits the offense of child pornography who:

(2) with the knowledge of the nature or content thereof, sells, offers for sale, possesses with intent to sell or otherwise disseminates, exhibits or makes available any film, videotape, photograph or other similar visual reproduction of any child under the age of 16 engaged in any activity ...


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