People v. Flaar

SIXTH DIVISION
June 23, 2006

No. 1-05-1497

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 03 CR 17086
)
ROBERT FLAAR, ) Honorable
) Robert M. Smierciak,
Defendant-Appellant. ) Judge Presiding.

JUSTICE O'MALLEY delivered the opinion of the court:

Defendant, Robert Flaar, appeals from the denial of his motion to dismiss his

charges in Cook County for dissemination of child pornography. He contends on appeal

that his guilty plea for possession of child pornography in Kendall County precludes his

current prosecution in Cook County for dissemination of child pornography pursuant to

double jeopardy and compulsory joinder principles. Based on our conclusion that the

image contained on defendant's computer and later downloaded on a computer in Cook

County stemmed from two separate criminal acts constituting two separate offenses, we

affirm.

FACTUAL BACKGROUND

The relevant facts in the record are as follows. On June 4, 2003, defendant sent

pornographic images depicting children from his home in Kendall County to an

undercover police officer in Cook County. Thereafter, on July 15, 2003, Kendall County
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police officers and Assistant State's Attorneys, as well as Cook County police officers,

served a search warrant on defendant. Defendant was then charged with four counts of

possession of child pornography in Kendall County on July 15, pursuant to section 11-

20.1(a)(6) of the Criminal Code of 1961 (720 ILCS 5/11-20.1(a)(6) (West 2002)). This

provision provides that a person commits the offense of child pornography when that

person:

"with knowledge of the nature or content thereof, possesses any

film, videotape, photograph or other similar visual reproduction or

depiction by computer of any child *** whom the person knows or

reasonably should know to be under the age of 18 *** engaged in any

activity described in subparagraphs (I) through (vii) of paragraph (1) ***."

720 ILCS 5/11-20.1(a)(6) (West 2002).

On August 22, 2003, defendant was charged with three counts of dissemination in Cook

County stemming from his e-mail to the undercover officer on June 4. 720 ILCS 5/11-

20.1(a)(1)(I), (a)(1)(i), (a)(1)(iv) (West 2002). 1 An individual violates this provision when

1
Although the record contains the file date for the dissemination charges filed in

Cook County, the briefs and the record do not indicate precisely when defendant was

charged with the three counts of possession of child pornography in Kendall County.

Defendant failed to supply the court with a complete record supplying these details.

Notwithstanding this deficiency, we find that we can still resolve the narrow issue before

us, namely, whether defendant=s conduct delineated above stemmed from two acts for

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he:

"with the knowledge of the nature or content thereof, reproduces,

disseminates, offers to disseminate, exhibits or possesses with intent to

disseminate any film, videotape, photograph or other similar visual

reproduction or depiction by computer of any child *** whom the person

knows or reasonably should know to be under the age of 18 ***, engaged

in any activity described in subparagraphs (I) through (vii) of paragraph (1)

of this subsection[.]" 720 ILCS 5/11-20.1(a)(2) (West 2002).

Defendant pled guilty to the Kendall County possession charges and then sought to

dismiss his charges for dissemination of child pornography that had been filed in Cook

County. In his motion, defendant argued that the charges filed in Cook County violated

compulsory joinder and double jeopardy principles. In regard to his compulsory joinder

claim, defendant argued that the actual possession and transmission of images

occurred in Kendall County and that the Kendall County officials were aware of this fact.

purposes of double jeopardy and compulsory joinder analyses. The sequence of these

two sets of charges are ultimately of no consequence to our resolution of this issue.

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Accordingly, both charges should have been brought in Kendall County. In regard to

his double jeopardy argument, defendant analogized his circumstances to a narcotics

transaction, stating that he would have had to have transferred possession of his

pornographic images in order to disseminate them, "as a drug dealer must possess the

drugs he seeks to distribute." Thus, according to defendant, he could not be charged

with distributing the very same image he previously pled guilty to possessing.

In its response, the State argued that the compulsory joinder statute and the

double jeopardy doctrine did not apply because two separate and distinct criminal acts

were at issue, namely, defendant's transmission of an image to an undercover Orland

Park police officer via the Internet on June 4, 2003, and defendant's possession of a

copy of this image on his own computer in Kendall County six weeks after the original

transmission. The trial court denied defendant's motion to dismiss and this appeal

followed.

ANALYSIS

In the present case, neither party contests that the possession of pornography is

a lesser-included offense of dissemination of child pornography. They differ, however,

in their compulsory joinder and double jeopardy analyses, as to whether defendant's act

of e-mailing a pornographic image to Cook County established a separate and distinct

possession from the possession defendant pled guilty to in Kendall County. As this

question is purely one of law, we examine it de novo. People v. Walker, 308 Ill. App. 3d

435, 438 (1999).

I. Double Jeopardy

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Both the United States and Illinois Constitutions provide that no person shall be

twice put in jeopardy for the same offense. U.S. Const., amend. V; Ill. Const. 1970, art.

I. ' 10. To evaluate potential violations of the double jeopardy clause in Illinois, we

must apply the Blockburger same-elements test. People v. Sienkiewicz, 208 Ill. 2d 1, 4-

5 (2003), citing Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180

(1932). Under this analysis, the prosecution of a lesser-included offense precludes the

subsequent prosecution of a greater offense that arises from the same physical act.

Sienkiewicz, 208 Ill. 2d at 6. Prior to applying this test, however, we must first

determine whether the charges for both the lesser and the greater offenses arise from a

single physical act by the defendant. Sienkiewicz, 208 Ill. 2d at 6. If the prosecutions

are predicated on different acts, then the prohibition against double jeopardy is not

violated. Sienkiewicz, 208 Ill. 2d at 5, citing Blockburger v. United States, 284 U.S. 299,

76 L. Ed. 306, 52 S. Ct. 180 (1932). Our supreme court defines an "act" in the context

of double jeopardy the same as it does in the context of the one-act, one-crime doctrine,

that is, as an Aoutward manifestation that will support a different offense.@ Sienkiewicz,

208 Ill. 2d at 7, citing People v. King, 66 Ill. 2d 551 (1977).

Although no Illinois cases directly address the factual scenario presented by this

case, the Wisconsin Supreme Court in State v. Multaler, 252 Wis. 2d 54, 79, 643

N.W.2d 437, 449 (2002), addressed a situation where it employed reasoning we find

useful here. In that case, a defendant was convicted of 28 counts of possession of child

pornography based upon 28 image files he had downloaded onto his computer.

Multaler, 252 Wis. 2d at 77, 643 N.W.2d at 448. The defendant argued on appeal that

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he should only be convicted for one count of possession. Addressing whether the State

properly charged defendant for each downloaded file, the court examined, among other

matters, whether each charged act was "separated in time" or was of a "significantly

different nature." Multaler, 252 Wis. 2d at 79, 643 N.W.2d at 449. Resolving this

question, the court explained:

"The separate in time inquiry is not resolved by a stopwatch approach.

[Citation]. Rather, the court asks whether there was sufficient time for

reflection between the acts such that the defendant re-committed himself

to the criminal conduct. [Citation]. Similarly, whether the charged acts are

significantly different in nature is not limited to a straightforward

determination of whether the acts are of different types. [Citation]. Acts

may be 'different in nature' even when they are the same types of acts as

long as each required a new 'volitional departure in the defendant's course

of conduct.' " Multaler, 252 Wis. 2d at 79-80, 643 N.W.2d at 449.

Concluding that each act was separate, the Multaler court stated that:

"[T]he fact that there were more than 28 separate files supports a

conclusion that [the defendant] made a new decision to obtain each one.

Every time he downloaded a new file, he recommitted himself to

additional criminal conduct. Each decision to download more child

pornography represented a new volitional departure." Multaler, 252 Wis.

2d at 80, 643 N.W.2d at 449.

Similarly, we find that defendant's conduct in the present case constituted two

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separate acts. In the first act, defendant transferred, via an e-mail attachment, a copy

of an image located on his hard drive to an officer in Cook County. In the second act,

defendant retained a copy of the original image on his hard drive for over month. Thus,

both acts of possession were separate and distinct temporally and physically. There

was a possession attendant to defendant's original dissemination, and there was a

separate possession offense occurring over a month later. That the images constituting

these separate possessions were identical in appearance is of little consequence to our

analysis. What is relevant, in our view, is that two separate images were created, and

that defendant was found with one of these images on his hard drive over a month after

he transferred the first image. As the Multaler court so concluded, we also conclude

that such a time period indicates a conscious decision to commit to a separate criminal

act, i.e., a new volitional departure towards a different criminal end. Multaler, 252 Wis.

2d at 79-80, 643 N.W.2d at 449. Specifically, defendant's decision to retain the data

that he originally disseminated to an undercover police officer represents a commitment

to consume, for his own sordid purposes, a copy of that which he originally

disseminated. Based on our conclusion that defendant committed two separate criminal

acts, we conclude that his two prosecutions did not violate the double jeopardy clause.

Sienkiewicz, 208 Ill. 2d at 4.

Defendant also argues that should his prosecution in Cook County go forward,

and he is found guilty only of possession and not distribution, the double jeopardy

clause would be implicated because he previously pled guilty to possession. For the

reasons stated above, however, we conclude that there are two distinct criminal acts

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constituting two distinct possessions. Thus, the double jeopardy doctrine would not be

implicated under those circumstances.

II. Compulsory Joinder

Defendant also contends that his dissemination charges in Cook County are

barred by the compulsory joinder provisions in sections 3-3 and 3-4 of the Criminal

Code of 1961 (720 ILCS 5/3-3, 3-4 (West 2002)). Section 3-3 provides in relevant part:

AIf *** several offenses are known to the proper prosecuting officer

at the time of commencing the prosecution and are within the jurisdiction

of a single court, they must be prosecuted in a single prosecution *** if

they are based on the same act.@ (Emphasis added), 720 ILCS 5/3-3

(West 2002).

Section 3-4(b) provides in relevant part that:

AA prosecution is barred if the defendant was formerly prosecuted

for a different offense, or for the same offense based upon different facts,

if such a former prosecution:

(1) Resulted in either a conviction or an acquittal, and the

subsequent prosecution is *** for an offense with which the defendant

should have been charged on the former prosecution, as provided in

Section 3-3 ***.@ 720 ILCS 5/3-4(b)(1) (West 2002).

The legislature enacted the compulsory joinder provisions to prevent the

prosecution of multiple offenses in a piecemeal fashion. People v. Mullenhoff, 33 Ill. 2d

445, 447 (1965). Such provisions prevent prosecutors from harassing defendants

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through successive prosecutions of multiple offenses and putting defendants through

the expense of several trials until the prosecutor obtains a desirable result. People v.

Kennedy, 161 Ill. App 3d 197, 199 (1987).

In the present case, the parties do not contest that the proper prosecuting

authorities were aware of defendant's offenses when they raided defendant's residence.

They differ, however, as to whether the various offenses arise from the same act.

We find that People v. Thomann, 197 Ill. App. 3d 516, 518 (1990), is analogous

to the present case and ultimately dispositive of defendant's compulsory joinder claim.

In Thomann, the defendant was prosecuted for possessing and disseminating on July

14, 1988, a videotape containing child pornography. In a later prosecution, the

defendant was charged with possessing advertisements on September 8, 1988, with

similar pornographic content. The police seized the child pornography that formed the

basis for the second charge several months after the defendant committed the first

crime. The defendant filed a motion to dismiss, alleging that his prosecution for his

activities on September 8 was barred by his earlier prosecution for possessing and

disseminating pornography on July 14. The trial court denied this motion, and the

appellate court affirmed. In so doing, the court reasoned that the important question in

a compulsory joinder analysis is whether the two crimes at issue were based on

separate acts. Thormann, 197 Ill. App. 3d at 521. Concluding that the defendant had

possessed pornographic material on two different dates and therefore committed two

separate criminal acts, the court emphasized:

"The fact the offenses involve similar conduct and violations of the same

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statutory provision is of little consequence. *** [The compulsory joinder

statute] is not intended to cover the situation in which several offenses--

either repeated violations of the same statutory provision or violations of

different provisions--arise from a series of acts which are closely related

with respect to the offender's single purpose or plan. *** [Citation.]"

(Emphasis in original), Thoman, 197 Ill. App. 3d at 518 .

Here, as in Thomann, defendant possessed two different pornographic items on

two different dates and therefore committed two separate criminal acts. Although, as in

Thomann, the pornographic material constituting both possessions are closely related,

we believe, for the reasons stated in our double jeopardy analysis, that the two separate

offenses at issue were based on two separate acts. Accordingly, defendant's

compulsory joinder argument must fail. See, e.g., People v. Gooden, 189 Ill. 2d 209,

219-20 (2000) (holding that independent, overt acts that constitute different offenses are

not required to be joined because they are not offenses based on the same act).

We do not believe the case law cited by defendant warrants a different outcome.

For instance, defendant analogizes his circumstances to those of the defendant in

People v. Hiatt, 229 Ill. App. 3d 1094 (1992). In Hiatt, the police seized pornographic

photographs and videotapes from the defendant's home. The defendant was then

charged in Peoria County with the offense of child pornography based on a videotape

depicting one child. He was acquitted of that offense. Thereafter, the defendant was

charged in Tazewell County with 20 counts of child pornography based on photos of

different children. The defendant argued that the latter prosecution was barred by the

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compulsory joinder doctrine. The appellate court agreed, stating that "the contraband

items involving both charges were seized during a single search on the same day that

the defendant was alleged to have possessed them." Hiatt, 229 Ill. App. 3d at 1097. In

coming to this conclusion, the trial court analogized to People v. Baker, 77 Ill. App. 3d

943 (1979), stating:

"The defendant's possession of the videotape and the photographs was

part of the same course of conduct and were really a 'single act of

possession,' just as in Baker where the defendant possessed two different

types of illegal drugs that were uncovered in the same search." Hiatt, 229

Ill. App. 3d at 1097.

Distinguishing Thomann, the court stated that:

"[T]here, the police seized the child pornography that formed the

basis for the second charge several months after the defendant committed

the first crime. Here, the contraband items involving both charges were

seized during a single search on the same day that the defendant was

alleged to have possessed them." Hiatt, 229 Ill. App. 3d at 1097.

Here, similar to Thomann, and unlike Hiatt and Baker, there was a seizure of

child pornography at the defendant's residence over a month after the defendant's first

criminal act transpired and both possessions at issue did not stem from the same

search. Defendant transferred possession of child pornography via an attachment to an

e-mail in early June. Then, over a month later, defendant was found with a copy of this

image on his computer. Based on these circumstances, we find defendant's cases to

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be more factually analogous to Thomann, rather than to Hiatt and Baker. We therefore

conclude that the cases relied upon by defendant are distinguishable and not dispositive

of the outcome in the present case.

CONCLUSION

For the foregoing reasons, we affirm the order of the trial court denying

defendant=s motion to dismiss.

McNULTY, P.J., and FITZGERALD-SMITH J., concur.

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