People v. Devine

237 N.E.3d 429

2023 IL 128438

The PEOPLE of the State of Illinois, Appellant,

v.Justin DEVINE, Appellee.(Docket No. 128438)

Supreme Court of Illinois.

Filed December 29, 2023.

Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Kane County, the Hon. David P. Kliment, Judge, presiding.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Katherine M. Doersch and Garson S. Fischer, Assistant Attorneys General, of Chicago, of counsel), for the People.

John W. Gaffney, of Harvard, for appellee.

OPINION

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

¶ 1 Defendant, Justin Devine, was convicted in the circuit court of Kane County of nonconsensual dissemination of private sexual images (720 ILCS 5/11-23.5(b), (f) (West 2018)). The court sentenced him to 18 months’ probation and 180 days in jail. Defendant appealed, arguing that the State failed to prove him guilty beyond a reasonable doubt. The appellate court agreed with defendant and reduced his conviction to disorderly conduct. 2022 IL App (2d) 210162, 461 Ill.Dec. 72, 202 N.E.3d 1069. We allowed the State’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Oct. 1, 2021)), and we now affirm the appellate court’s judgment.

¶2 BACKGROUND

¶3 The State charged defendant with one count of nonconsensual dissemination of private sexual images (720 ILCS 5/11-23.5(b), (f) (West 2018)). The indictment alleged 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."

The cause proceeded to a bench trial.

¶ 4 J.S. testified that on September 19, 2018, she went to the Verizon store in Huntley because she wanted to port her number from Sprint to Verizon. She worked mostly with one employee, who the defense stipulated was defendant. Defendant asked for her phone. He explained that he needed to go into the settings to see if the phone was ready for the port. Defendant had her phone for approximately two minutes. J.S. could see him moving his fingers over the phone, but she could not see the phone’s screen. He asked for her account number from Sprint. J.S. asked for her phone back so she could look it up.

¶ 5 J.S. went to text her ex-boyfriend for the account number, but when she opened her text messages she saw that there was an outgoing message to a number she did not recognize. She asked defendant for a Post-It note so that she could write down the number that the text was going to. J.S. said that she "kind of freaked out" when she saw that the text message was sending pictures of her private parts that she had taken a night or two previously. She deleted the message and the pictures, hoping that this would stop the pictures from being sent. J.S. said that she had not given defendant permission to go into her photos or to send text messages of them.

¶ 6 The store manager noticed that J.S. appeared panicked about something, and he asked what was going on. She said that her phone was sending messages to a number she did not recognize. The manager said that had been happening a lot lately, and defendant said that it happens sometimes and that there was "a glitch, or something." J.S. identified copies of the five pictures that were sent from her phone. She agreed that the pictures were of her genital area and that in some of them you could see her fingernails. She said that she could identify herself from the pictures. When asked how she could identify herself, she said, "I took the pictures and I know what I look like down there." She also said that she recognized her fingers, hands, and nail polish. She said that she was wearing the same nail polish when she went to the detective’s office to identify the pictures.

¶ 7 When J.S. left the Verizon store, she went to her father’s house to talk to him and her stepmother about what was going on. They did an Internet search for the phone number that J.S. had written on the Post-It note and found that the number belonged to defendant. They found defendant’s Facebook page, and J.S. recognized defendant as the person who had helped her at the Verizon store. J.S. then contacted the Huntley Police Department.

¶8 Officer Chris Coss of the Huntley Police Department testified that he was sent to speak to J.S. in regard to a suspicious incident call. Coss spoke to J.S., her father, and her stepmother about an incident that had occurred at the Verizon store earlier that day. J.S. directed him to defendant’s Facebook page. Coss then used that information to pull up defendant’s driver’s license and to compare it to the Facebook page. The pictures matched, and Coss passed the information along to other people associated with the investigation.

¶ 9 Sergeant Charles McGrath of the Huntley Police Department testified that he was assigned to assist in the investigation of an incident that occurred at the Verizon store in Huntley on September 19, 2018. He spoke with J.S. by phone about the incident, and she gave him defendant’s name. Defendant agreed to an interview with McGrath and his partner, Detective Chris Pishotta. Defendant told them several different stories about what happened. He originally said that he noticed that J.S.’s phone was sending a message to his phone and that he tried to stop it. He realized that photos were being sent, and he panicked and tried to stop it by removing the SIM cards from both phones. He initially said that he did not intend to send any pictures from J.S.’s phone. Eventually, defendant admitted that he had gone into the "recent photos" on J.S.’s phone and sent five pictures to his own phone number. He said that he received the photos but immediately deleted them. Defendant consented to a search of his phone.

¶ 10 McGrath took defendant’s phone to the Kane County Sheriff’s Office, where he gave it to Sergeant Steve Bruening. Bruening plugged the phone into his computer Cellebrite system and was able to download the phone’s content onto a Cellebrite report. Bruening was able to isolate the five pictures that McGrath had told him they were looking for. McGrath printed the pictures and took them to J.S. for identification. J.S. identified the pictures. McGrath also took pictures of J.S.’s hands that day. He identified the pictures that he took of J.S.’s hands, which show the same shade of red nail polish that was visible on the pictures taken from defendant’s phone.

¶ 11 Sergeant Bruening testified that he is currently in charge of the evidence division at the Kane County Sheriff’s Office. Bruening explained that Cellebrite software is a forensic tool used to recover information from cell phones and other digital devices. On September 20, 2018, he performed an extraction on a cell phone that McGrath brought him. Bruening explained that he was asked to look for messages or phone calls from a specific phone number. He found that the phone number in question had sent five images to the phone he was inspecting. He identified the pictures that had been admitted into evidence as the ones he had extracted from the phone. He acknowledged on cross-examination that he did not find any evidence that the images had been sent from the phone he inspected to any other numbers.

¶ 12 The trial court found defendant guilty of nonconsensual dissemination of private sexual images. The court noted that there was no question that most of the elements of the offense were satisfied. J.S. was over 18, her intimate parts were exposed in the pictures, defendant obtained the images under circumstances under which a reasonable person would know that the images were to remain private, and defendant knew that J.S. had not consented to the dissemination. The court determined that there were two questions that needed to be answered: whether J.S. was identifiable from the images and whether defendant disseminated the images when he sent them to himself. The court first found that J.S. was identifiable from the images. The court did not find it relevant that J.S. could identify herself from the images. But the court found that J.S. was identifiable because defendant could have identified her from the information that he had. The court noted that J.S. handed defendant her phone, that the pictures were on her camera roll, that she had red nails in the pictures, and that she was wearing red nail polish in the store that day. From this, the court deduced that defendant knew who was depicted in the pictures. On the dissemination issue, the court found that defendant disseminated the pictures when he sent them to himself. The court noted that defendant did not have J.S.’s permission to access her pictures. The court found that this court’s decision in People v. Austin, 2019 IL 123910, 440 Ill.Dec. 669, 155 N.E.3d 439, did not require broad dissemination but only that the defendant make the images more widely known.

¶ 13 Defendant appealed, and the Appellate Court, Second District, modified defendant’s conviction to one of disorderly conduct. 2022 IL App (2d) 210162, 461 Ill.Dec. 72, 202 N.E.3d 1069. The appellate court directed the parties to address at oral argument whether defendant’s conduct more accurately fell under the disorderly conduct statute. Id. ¶ 12. Defense counsel conceded at oral argument that the appellate court had the authority to reduce defendant’s conviction to disorderly conduct. Id. Defense counsel further conceded that the evidence was sufficient to prove defendant guilty beyond a reasonable doubt of that offense. Id. The State agreed but also maintained that the evidence was sufficient to convict defendant of nonconsensual dissemination of private sexual images. Id.

¶ 14 The appellate court rejected the State’s contention that the evidence was...