People v. Devine

• Decision Date: 28 March 2022
• Docket Number: 2-21-0162
• Citation: 2022 IL App (2d) 210162,202 N.E.3d 1069,461 Ill.Dec. 72
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Justin D. DEVINE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2022 IL App (2d) 210162

202 N.E.3d 1069

461 Ill.Dec. 72

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Justin D. DEVINE, Defendant-Appellant.

No. 2-21-0162

Appellate Court of Illinois, Second District.

Filed March 28, 2022

John W. Gaffney, of Harvard, for appellant.

Jamie L. Mosser, State's Attorney, of St. Charles (Patrick Delfino, Edward R. Psenicka, and Adam Trejo, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 Defendant, Justin D. Devine, appeals from his conviction, following a bench trial, of nonconsensual dissemination of sexual images, a Class 4 felony ( 720 ILCS 5/11-23.5(b), (f) (West 2018)). Defendant argues that the State failed to prove beyond a reasonable doubt (1) that he "disseminate[d]" the sexual images (id. § 11-23.5(b)(1) ) and (2) that the person in the images was "identifiable" (id. § 11-23.5(b)(1)(B) ). We agree. However, we find that the evidence was sufficient to prove defendant guilty beyond a reasonable doubt of disorderly conduct (id. § 26-1(a)(1)), a lesser included offense. Accordingly, using our authority under Illinois Supreme Court Rule 615(b)(3) (eff. Jan. 1, 1967), we reduce defendant's conviction of nonconsensual dissemination of sexual images to a conviction of disorderly conduct, and we remand for resentencing.

¶ 2 I. BACKGROUND

¶ 3 On October 16, 2018, defendant was indicted on one count of nonconsensual dissemination of sexual images. The indictment charged that defendant

"intentionally disseminated 5 images of a female vagina, of another person, being J.S., who is at least 18 years of age and identifiable from information displayed in connection with the image, and whose intimate parts were exposed in whole in the image, and defendant knew that J.S. did not consent to the dissemination."

¶ 4 The following relevant facts were established at defendant's bench trial and are not in dispute. On September 19, 2018, defendant, who was 23 years old, worked at a Verizon store in Huntley. On that day, J.S., who was 32 years old, went to the Verizon store to transfer her cellular service from Sprint to Verizon, and defendant assisted her. Defendant asked J.S. if he could see her cell phone to check certain settings, and J.S. handed her phone to him. J.S. could see defendant's fingers were moving across the screen, but she could not see the screen. Defendant had J.S.’s cell phone in his possession "for less than two minutes."

¶ 5 When defendant handed the cell phone back to J.S., J.S. saw that a text message had been sent from her cell phone to a phone number that she did not recognize. Attached to the text message were five photographs J.S. had taken of her "private parts" one or two evenings earlier. The photographs depicted a woman's vagina and were stored in J.S.’s cell phone's "recent photos section." When J.S. opened the text and saw what it was, she "freaked out." She testified:

"I asked [defendant] for a Post-It Note very quickly where I wrote down the phone number that it was sending to. The little green bar that shows that the text message is in process of sending was still going, so at that point, after I wrote the phone number down, I deleted the text messages hopefully stopping them from completing."

When asked why she panicked, she stated: "Because the image, the images of the text message that were sending were very personal."

After she tried to stop the message from sending, she "went into [her] phone and deleted all of the photos." She stated: "I had absolutely no idea at that time what was going on and I just had to get them off of my phone because they were sending to a number I didn't know." The store manager noticed that J.S. "was panicked about something" and asked her what was wrong. When she told him that her phone was sending messages to an unfamiliar number, he told her that "that's been happening a lot lately." Defendant added, "[Y]eah, that happens sometimes, there's a glitch, or something."

¶ 6 When J.S. got home that evening, she told her dad and her stepmom what had happened at the Verizon store. They typed the phone number into "Google," located defendant's Facebook page, and determined that the phone number belonged to defendant—the person who had helped her at the store. They immediately called the police and then met with them over several days.

¶ 7 J.S. identified People's exhibit Nos. 3 through 7 as copies of the images on her cell phone. She identified the images as photographs that she had taken of her vaginal area. Fingernails can also be seen in some of the images. When asked how she could identify herself from the images, J.S. testified: "One, because I took the pictures, and I know what I look like down there. And number two, because the fingernail polish that I had on, I recognize my fingers, my hands, my nail polish." J.S. testified that she was wearing that nail polish when she went to the Verizon store.

¶ 8 The trial court found defendant guilty of nonconsensual dissemination of sexual images. The court found that defendant obtained the images when he "access[ed] the photo roll" and that "he disseminated them by sending them to himself." According to the court, defendant "ma[de] [the images] more widely known." The court stated:

"For me to construe the statute any other way would condone or ignore what the defendant did in this case and I think the statute is written more broadly to encompass revenge porn, but I think it fits the circumstances in this case as well. I believe this defendant violated the statute by taking these pictures. He knew he was taking them from her phone. He knew when he sent them to himself that he was going to have them. And whether he lost his nerve afterwards or not, I don't know if that is true or not."

Concerning identification, the court stated: "I did look at the photographs and there is—it could be any female and there is no way to identify the person with red nails or anything from those." However, the court went on to state that J.S. was identifiable to defendant, because "[s]he was sitting in front of him. She gave him her phone. The pictures were on her photo roll. And she had her red nails that day and they were the red nails in the photograph, so he knew who it was. The defendant knew who it was."

¶ 9 Defendant filed a motion for entry of an acquittal or for a new trial, which the trial court denied. A sentencing hearing took place on March 24, 2021. Defendant's presentence investigation report (PSI) included a letter from defendant to the court. In it, he took full responsibility for his actions. He stated that "[w]ithin seconds of the wrong doing [sic ] I had realized how horrible my actions were" and, further, that he "can't express how much [he'd] like to apologize to [J.S.]" In the section addressing the defendant's "criminal attitudes," he stated "that he [did] not disagree that he was wrong and that he should face consequences." The court sentenced defendant to 18 months’ probation and 180 days’ jail. The court stayed the jail sentence pending compliance with probation.

¶ 10 Defendant timely appealed.

¶ 11 II. ANALYSIS

¶ 12 Although neither party requested oral argument, we scheduled oral argument on our own motion, directing the parties to be prepared to argue whether defendant's conduct more accurately fell under the provisions of the disorderly conduct statute and whether it would be appropriate for this court to reduce the degree of the offense. At the outset of oral argument, defense counsel conceded that we had the authority to reduce defendant's conviction and that the evidence was sufficient to prove defendant guilty beyond a reasonable doubt of disorderly conduct. The State agreed. (Nevertheless, the State did not concede that the evidence was insufficient to prove defendant guilty beyond a reasonable doubt of nonconsensual dissemination of sexual images.)

¶ 13 A. Nonconsensual Dissemination of Sexual Images

¶ 14 Defendant contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt of nonconsensual dissemination of sexual images. We agree.

¶ 15 Under section 11-23.5(b) of the Criminal Code of 2012 (Code) ( 720 ILCS 5/11-23.5(b) (West 2018)):

"(b) A person commits non-consensual dissemination of sexual images when he or she:

(1) intentionally disseminates an image of another person:

(A) who is at least 18 years of age; and

(B) who is identifiable from the image itself or information displayed in connection with the image; and

(C) who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part; and

(2) obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and

(3) knows or should have known that the person in the image has not consented to the dissemination."

¶ 16 Defendant argues that the State failed to prove beyond a reasonable doubt that (1) he "disseminate[d]" the sexual images (id. § 11-23.5(b)(1) ) because there was no evidence that he sent the images to another person or otherwise distributed them and (2) J.S. was "identifiable from the image itself or information displayed in connection with the image" because there was nothing about the images that would allow anyone to identify her (id. § 11-23.5(b)(1)(B) ).

¶ 17 Defendant's argument presents both an issue of statutory construction, specifically the meaning of "dissemination," and a challenge to the sufficiency of the evidence. We review de novo questions of statutory construction. People v. Robinson , 172 Ill. 2d 452, 457, 217 Ill.Dec. 729, 667 N.E.2d 1305 (1996). The court's primary objective in construing a statute is to ascertain and give effect to the legislature's intent. People v. Austin , 2019 IL 123910, ¶ 15, 440 Ill.Dec. 669, 155 N.E.3d 439. The best indication of the legislature's intent is the statute's language. Id. "In the absence of a statutory definition, courts presume that the words used in a...