Rule 23 Order Filed: May 6, 2014.
Appeal from the Circuit Court of Madison County. No. 06-CF-1073. Honorable James Hackett, Judge, presiding.
The appellate court upheld defendant's convictions on 10 counts of possession of child pornography, since the trial court did not abuse its discretion in denying his motion to suppress the search warrant that led to the discovery of the pornography on his computer on the ground that the warrant was stale, the State proved beyond a reasonable doubt that he possessed child pornography by actual and constructive possession, regardless of his attempts to blame his wife and stepchildren for placing it in his computer, and the trial court's admission of a detective's testimony regarding distinctiveness and similarities in the handwriting on the labels of CDs was not an abuse of discretion, even though the detective had no handwriting-comparison qualifications.
For Appellant: Curtis L. Blood, Collinsville, IL.
For Appellee: Hon. Thomas D. Gibbons, State's Attorney, Edwardsville, IL; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Sharon Shanahan, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, IL.
JUSTICE STEWART delivered the judgment of the court, with opinion. Presiding Justice Welch and Justice Goldenhersh concurred in the judgment and opinion.
[¶1] The defendant, George S. Jaynes, was charged with 10 counts of possession of child pornography in violation of section 11-20.1(a)(6) of the Criminal Code of 1961 (720 ILCS 5/11-20.1(a)(6) (West 2006)). Following a bench trial he was found guilty and sentenced to 30 months' probation. The defendant filed a timely notice of appeal. We affirm.
[¶3] A bench trial was held on August 1, 2011. Detective Sergeant David Vucich from the Madison County's sheriff's department was accepted to testify as an expert in the area of computer forensics. He stated that he had received computer forensic training from the National White Collar Crime Center, the U.S. Marshals Service, the FBI, several other agencies, and vendor-specific training on the forensic program Forensic Tool Kit (FTK). He was a member of the major case squad, was assigned to the Technical Operations Group, and dealt primarily with cell phone and high-tech devices as they relate to an investigation. He was also a member of the FBI cyber crime task force, concentrating on cases involving child exploitation such as child pornography and indecent solicitation of children by adults over the Internet.
[¶4] Detective Vucich testified that on March 20, 2006, he received a complaint about the defendant. The complaint was received through the National Center for Missing and Exploited Children (NCMEC). In his affidavit attached to the complaint for a search warrant, Detective Vucich wrote, " The anonymous complainant alleged [the defendant's] ex-wife found child pornography on his computer and he has a history of molesting children; however, no one has ever turned him into [sic] police authorities." As a result of receiving the tip, on May 12, 2006, Detective Vucich and Detective Cromer went to the defendant's residence. They arrived sometime in the morning between 9 a.m. and 10 a.m. Dogs were barking outside the home, so the detectives honked the car horn until the defendant came outside. Detective Vucich stated that they told the defendant that they were investigating a complaint that he had inappropriate images located on his computer. The defendant told the detectives that he had not opened the Internet connection, that he was in the process of cleaning out his computer system, and that some ex-family members had used his computer. The defendant told Detective Vucich that there was a one-month period of time from February 2005 until March 2005 when the computer was not in his possession.
[¶5] Detective Vucich asked the defendant specifically about child pornography. The defendant responded that no child pornography images would be found on his computer. Detective Vucich asked the defendant if they could go inside his home to discuss the matter further. The defendant denied the officers entry into his home and consent to search his computer.
[¶6] Detective Vucich testified that he did not want to take the anonymous complaint at face value and that he wanted to corroborate some of the information. He decided that the defendant's ex-wife, Paula Lynn Juengel, would be the best source of additional information. Detective Vucich interviewed Paula, and she indicated that she had previously seen child pornography on the defendant's computer. He asked her whether she was the person who reported the anonymous tip to NCMEC, and she replied in the negative.
[¶7] Detective Vucich applied for a search warrant. The search warrant application was granted, and he returned to the defendant's residence around 3 p.m. Detective Vucich testified that they searched a bedroom with a computer in it. The room was " kind of in disarray." He seized numerous CDs, floppy disks, and portable media from a wooden bookcase stand in the room, the computer tower, CDs and digital media from a three-drawer plastic file cabinet in the room, file folders from a plastic bin, and a brown paper bag containing 39 CDs, 37 3 1/2-inch floppy disks, and an envelope containing a circuit board.
[¶8] On October 14, 2009, the defendant filed a motion to suppress evidence. On November 6, 2009, the trial court heard arguments on the motion to suppress. The court denied the motion to suppress on the grounds that probable cause existed for the issuance of the warrant.
[¶9] Detective Vucich testified that he found CDs in the room with the computer that contained images of young prepubescent and just-pubescent children engaged in sexual acts with adults, a young female exposing her genitalia and breasts, a prepubescent girl with no breast development lying on her back with her genitalia and breasts exposed, a prepubescent female with genitalia and breasts exposed sitting on a couch, a prepubescent female with no pubic hair on a couch with her legs spread open and genitalia and breasts exposed, preteen boys and girls engaged in sexual acts, two nude Asian girls ages 6 to 8
leaning against a tree, a girl age 8 to 10 with both genitalia and breasts exposed, and a young prepubescent girl with her genitalia partially exposed and her left breast exposed. Detective Vucich admitted that he only found these images on disks and did not find them on the hard drive. On cross-examination he was asked if it was possible that someone could have planted the disks in the areas where they were found, and he stated it was possible. Detective Vucich testified that he found a photo of a prepubescent girl with genitalia and breast exposed on the defendant's hard drive. This photo was found hidden in the virtual memory of the hibernation mode.
[¶10] Detective Vucich testified that they seized a Compaq Presario computer with a 20-gigabyte hard drive media storage. He stated that he made an image of the hard drive. He stated that " thousands upon thousands" of images were recovered from all the media. Of those images, he flagged a couple thousand images that were noteworthy because they appeared to be illegal images of males or females under the age of 18 depicted in a sexual act or displaying nudity.
[¶11] Detective Vucich testified that one of the file folders recovered from a plastic bin contained a piece of paper with handwritten notes about what " appeared to be like passwords as it relates to specific Web Sites and E-mail addresses." The file contained additional papers with the user name " tampergeorge" including a Yahoo mail page with the email address of Tampergeorge@ameritech.net, a computer-generated printout of tax information that contained the user name tampergeorge, a United Healthcare statement with handwritten notes relating to the user name tampergeorge, and a Bank of America statement with an email address tampergeorge@prodigy.
[¶12] The defendant testified that he worked on the railroad for 27 1/2 years. He operated a tamper as part of his job. He admitted using user name Tamper George for many different online services in the last 10 to 15 years. He stated that the sheet of passwords was not his. He said that it may have been a scrap paper he was writing on, but someone else had written on it too.
[¶13] Detective Vucich was shown two labels on CDs and asked if there was any similarity between them. He testified that " the handwriting on there looks like the E's are kind of distinctive." The defense attorney objected on the ground that Detective Vucich was not qualified as a handwriting expert. The court overruled the objection. Detective Vucich was shown the handwritten page of passwords and was asked if on the handwritten word " George" there was anything about the last E that looked familiar. He stated " the last E appears similar to that of handwriting-." The defense attorney objected that Detective Vucich was drawing a conclusion and that he was not qualified as a handwriting expert. The trial court overruled the objection. Detective Vucich went on to identify certain Es that looked similar. He also admitted that not all the Es were the same.
[¶14] Detective Vucich testified that in a folder titled " Lamisil" he found email printouts from various news groups, all with the heading Tamper George. An August 1, 2000, email printout showed a picture of a young female, approximately 14 years old, with her breasts exposed. An email printout dated September 22, 2000, had a picture of a 13- to 14-year-old nude female with her hands behind her back holding onto a bed rail and leaning forward. An email sent February 20, 2001, showed a picture of a young female ...