People v. Rollins
| Decision Date | 26 March 2021 |
| Docket Number | 2-18-1040 |
| Citation | 2021 IL App (2d) 181040,183 N.E.3d 997,451 Ill.Dec. 540 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gregory A. ROLLINS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Thomas A. Lilien, and R. Christopher White, of State Appellate Defender's Office, of Elgin, for appellant.
Eric Rinehart, State's Attorney, of Waukegan (Patrick Delfino, Edward R. Psenicka, and David S. Friedland, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
¶ 2 Following a bench trial on stipulated evidence, defendant, Gregory A. Rollins, was convicted of one count of child photography by a sex offender. He now appeals, arguing that section 11-24 of the Criminal Code of 2012 (Code) ( 720 ILCS 5/11-24 (West 2016) )—the statute under which he was convicted—is unconstitutional on first amendment grounds . For the reasons that follow, we affirm.
¶ 4 The facts underlying this appeal are brief and undisputed. Defendant was indicted on four counts of child photography by a sex offender. 720 ILCS 5/11-24 (West 2016). Defendant moved to dismiss the charges, alleging that section 11-24 violated his rights under the first amendment. Defendant cited Wisconsin v. Oatman , 2015 WI App 76, 365 Wis. 2d 242, 871 N.W.2d 513, where a Wisconsin reviewing court held unconstitutional a statute bearing some similarities to the statute at issue here. The trial court dismissed the motion. It first found that section 11-24 drew a distinction based on content, as it applied only to photographs of children ; consequently, it found that the statute was subject to strict scrutiny. It further found that the State had a compelling interest in protecting children from sex offenders. The trial court interpreted the statute to apply where a sex offender knowingly takes a picture of a child and held that it did not apply where a sex offender incidentally photographed a child who was in the background of an otherwise innocent photograph. It further observed that the statute applied only to sex offenders rather than the public at large. The trial court thus determined that the statute was narrowly tailored. It further found that the statute did not offend substantive due process.
¶ 5 Although defendant initially was indicted on four counts, the State nol-prossed all but the first count. At defendant's bench trial, the parties stipulated to the following.
¶ 6 First, the State would introduce a certified copy of defendant's conviction of predatory criminal sexual assault and establish that defendant was required to register for life as a sex offender.
¶ 7 Second, Buffalo Grove police officer Brian Hansen would testify that, on May 31, 2016, he received information that photographs of a fully clothed child were taken at MIR Tactical in Buffalo Grove. Hansen obtained surveillance footage showing two men interacting with a father and his two children. One of the two men, later identified as defendant, used his cell phone during the interaction.
¶ 8 Third, Hansen made contact with defendant and brought defendant to the Buffalo Grove Police Department. After being Mirandized (see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ), defendant admitted taking photographs of a child without the consent of the child's parents. Defendant told Hansen that he uploaded the photographs to a cloud-based account where he could view them later before deleting them from his phone. Defendant stated that he was aware that he could not possess such photographs and that he was able to share them from the cloud-based account. Defendant provided Hansen with his username and password to the cloud-based account. Hansen logged in to the account and observed an image labeled "Airsoft-Angel." The image depicted the child, and defendant acknowledged that it was the photograph taken without parental consent referenced in the first count of the indictment.
¶ 9 Fourth, the father of the child would testify that the child was born in 2002. The father had been with his two sons at MIR Tactical. They had previously met defendant and defendant's brother and had played Airsoft with them. Airsoft is a team game using Airsoft guns. Defendant's brother asked the father for his phone number so that they could play Airsoft in the future.
¶ 10 Fifth, the father would identify the photograph labeled "Airsoft-Angel" as depicting the child, his son. He never gave defendant permission to photograph the child.
¶ 11 The trial court found defendant guilty. It imposed a sentence of five years’ imprisonment, as agreed by the parties. Defendant then filed a motion for judgment notwithstanding the finding of the trial court or, alternatively, a new trial. In it, he asserted that the court erred in denying his motion to find section 11-24 of the Code unconstitutional. Defendant's motion was denied, and this appeal followed.
¶ 13 Defendant argues that section 11-24 of the Code ( 720 ILCS 5/11-24 (West 2016) ) is unconstitutional on its face and as applied to him. In addressing defendant's argument that the statute is unconstitutional, we must first determine the level of scrutiny to which the statute is subject. Next, we must determine whether it passes constitutional muster under that standard.
¶ 14 Section 11-24 provides as follows:
¶ 15 Statutes are presumed constitutional, and the party challenging the statute's constitutionality bears the burden of clearly showing its invalidity. People v. Austin , 2019 IL 123910, ¶ 14, 440 Ill.Dec. 669, 155 N.E.3d 439. Whether a statute is unconstitutional presents a question of law, subject to de novo review. People v. Gray , 2017 IL 120958, ¶ 57, 418 Ill.Dec. 916, 91 N.E.3d 876. A party alleging that a statute is facially unconstitutional on first amendment grounds must show that " ‘a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.’ " United States v. Stevens , 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (quoting Washington State Grange v. Washington State Republican Party , 552 U.S. 442, 449 n.6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) ). Conversely, an as-applied challenge requires a party to show that the statute is being unconstitutionally applied under the facts and circumstances of the given case. Desnick v. Department of Professional Regulation , 171 Ill. 2d 510, 520, 216 Ill.Dec. 789, 665 N.E.2d 1346 (1996). With these standards in mind, we turn to defendant's arguments.
¶ 17 As a threshold matter, we must first determine the appropriate level of scrutiny to which section 11-24 is subject. A statute subject to strict scrutiny will be upheld only if it is narrowly tailored to serve a compelling governmental interest. In re Amanda D. , 349 Ill. App. 3d 941, 951, 285 Ill.Dec. 358, 811 N.E.2d 1237 (2004). Put differently, the statute must use the " ‘least restrictive means’ " to promote such an interest. In re H.G. , 197 Ill. 2d 317, 330, 259 Ill.Dec. 1, 757 N.E.2d 864 (2001) (quoting In re R.C. , 195 Ill. 2d 291, 303, 253 Ill.Dec. 699, 745 N.E.2d 1233 (2001) ). On the other hand, intermediate scrutiny simply requires that a statute "must be substantially related to an important governmental interest." Napleton v. Village of Hinsdale , 229 Ill. 2d 296, 308, 322 Ill.Dec. 548, 891 N.E.2d 839 (2008). The law need not be the least restrictive means to advance that important interest, so long as the important interest "would be achieved less effectively absent the law." Austin , 2019 IL 123910, ¶ 70, 440 Ill.Dec. 669, 155 N.E.3d 439.
¶ 18 As the parties recognize, the determinative factor as to what level of scrutiny applies is whether section 11-24 is content neutral. If it is, then intermediate scrutiny applies; if not, then strict scrutiny is required. Id. ¶¶ 40, 43. Defendant argues, and the trial court agreed, that strict scrutiny was appropriate, noting that the statute "specifically restricts only photographs of children taken by sex offenders." The State counters that not "every regulation of speech that makes reference to content is ‘content based.’ " We agree with the State.
¶ 19 Generally, a statute that "regulates speech or conduct ‘based on hostility—or favoritism—toward the underlying message expressed’ is content-based." Norton v. Ashcroft , 298 F.3d 547, 552 (6th Cir. 2002) (quoting R.A.V. v. City of St. Paul , 505 U.S. 377, 386, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) ). There is no indication here that section 11-24 is motivated by a desire to suppress ordinary pictures of children, and defendant points to nothing to substantiate such a proposition. Indeed, not all pictures of children are restricted. Instead, the concern motivating the legislature appears to have...
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