Man's child porn conviction is upheld

An appellate court reaffirms the conviction of a Beverly Hills man who claimed it was never proved the porn he possessed depicted real children.

Kevin Jalbert says prosecutors never proved that the alleged child pornography found on his computer depicted real children, as opposed to computer-generated children or adults who resembled children.

It doesn't matter, an appellate court said Friday. Because of a procedural issue, prosecutors didn't have to prove that point.

The result: Jalbert's convictions for possessing child pornography - and the accompanying 30-year prison sentence - remain valid.

Authorities said Jalbert, now 46, stored more than 40,000 pornographic images on a computer at his Beverly Hills home. Hundreds of the images showed children nude or engaged in sexual acts, they said.

The children depicted in the photos were between 8 and 12 years old, authorities said.

Jalbert was arrested in the summer of 2001 and eventually faced 60 felony counts: one for promoting a sexual performance by a child and 59 for possession of a photography of a sexual performance by a child.

Last year, Circuit Judge Ric Howard denied Jalbert's request for a dismissal. Jalbert later pleaded no contest and received the 30-year prison term.

On appeal, Jalbert argued that the judge wrongly denied his motion to dismiss. The reason: The state never established that the photographs in question depicted actual children.

In reviewing the appeal, a three-judge panel from the 5th District Court of Appeal said a procedural issue was key.

When considering the motion to dismiss, Howard couldn't decide factual issues. According to legal precedent, he was obliged to look at all the evidence in a light most favorable to the state, the panel wrote.

Legal precedent holds that, as long as the state shows it has the basic elements of a case, it shouldn't be prevented from moving forward.

If the case had proceeded to trial, the state would have been required to prove that the photographs and images depicted actual children, the panel wrote, citing state and federal legal precedents.

But "Jalbert's speculation that the photographs may have been computer-generated "virtual' children or adults who resemble children is insufficient to cause the dismissal of the information (felony charges) against him," the panel wrote.

Judge Richard B. Orfinger wrote the opinion. Judges William D. Palmer and Vincent G. Torpy concurred.

Jalbert's arrest in June 2001 didn't originally involve pornography. He was arrested because he was accused of soliciting a man to commit murder, sexual battery and kidnapping.

Though Jalbert lived in Beverly Hills, the solicitation charges stemmed from activity in Pinellas County. Authorities said he trolled the streets of Clearwater with an accomplice - actually, an undercover police officer - looking for children to abduct, rape and kill.

In February 2003, a Pinellas jury found him guilty of the solicitation charges, and a judge sentenced him to 40 years in prison. The conviction and sentence were affirmed earlier this year.

The child pornography charges arose when state agents searched Jalbert's Beverly Hills home the day after his arrest and seized computer equipment. Investigators filled eight CDs with images found on the computer.

The child pornography charges were handled in Citrus County.

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