People v. Devine , 2022 IL App (2d) 210162 ( 2022 )

2022 IL App (2d) 210162No. 2-21-0162
Opinion filed March 28, 2022
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 18-CF-2047
)
JUSTIN D. DEVINE, ) Honorable
) David P. Kliment,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justices Schostok and Hudson concurred in the judgment and opinion.
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
2022 IL App (2d) 210162dissemination 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
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2022 IL App (2d) 210162sending 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 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
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2022 IL App (2d) 210162“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.
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2022 IL App (2d) 210162¶ 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
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2022 IL App (2d) 210162(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 (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. 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 statute have their ordinary and popularly understood meanings.” Id. ¶ 115.“When reviewing
the sufficiency of the evidence, ‘the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) People v. Bishop, 218
Ill. 2d 232, 249 (2006) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); People v. Collins,
106 Ill. 2d 237, 261 (1985).
¶ 18 We first address the element of dissemination. Defendant argues that, to prove
dissemination, the State was required to prove that defendant either sent the images to another
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2022 IL App (2d) 210162person or otherwise distributed them. On the other hand, the State maintains that defendant
disseminated the images when he distributed them to himself.
¶ 19 The seminal (and only) case addressing section 11-23.5(b) of the Code, and the meaning
of “disseminate,” is Austin. Austin, 2019 IL 123910, ¶¶ 114-15. In Austin, the defendant shared an
iCloud account with her fiancé Matthew. Id. ¶ 3. As a result, when Matthew received text
messages, they also appeared on the defendant’s iPad. Id. The victim, a neighbor of Matthew, sent
naked pictures of herself to him. Id. ¶ 4. Although the victim knew that the defendant could, at one
time, see Matthew’s text messages, she thought that the shared account was deactivated when she
sent the pictures, which were solely intended for Matthew. Id. ¶ 7. When the defendant and
Matthew broke up, the defendant wrote a letter to Matthew’s cousin detailing her version of the
events that precipitated the breakup, attaching four naked pictures of the victim to the letter. Id.
¶¶ 5, 6. When Matthew learned about the letter, he notified the police. Id. ¶ 7. The defendant was
charged with violating section 11-23.5(b) of the Code. Id. ¶ 8. The defendant moved to dismiss the
charge, asserting, among other things, that the statute was facially unconstitutional because it was
a content-based restriction of speech that was not narrowly tailored to serve a compelling
government interest. Id. The trial court agreed. Id. ¶ 9. The State appealed to the supreme court.
Id. ¶ 10.
¶ 20 On appeal, one of the defendant’s arguments was that section 11-23.5(b) was
unconstitutionally vague because the term “disseminate” was not defined in the statute, in that it
did not expressly state to whom, when, where, or how to accomplish dissemination. Id. ¶ 114. The
court rejected this contention, stating:
“In the absence of a statutory definition, courts presume that the words used in a
statute have their ordinary and popularly understood meanings. [Citation.] The term
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2022 IL App (2d) 210162‘disseminate’ is defined as ‘to foster general knowledge of.’ [Citation.] In addition, its
synonyms include ‘BROADCAST,’ ‘PUBLICIZE,’ and ‘SPREAD.’ [Citation.] The same
dictionary defines ‘spread’ as ‘to make more widely known.’ [Citation.] In this case,
defendant sent a letter to at least one other person that included the private sexual images
of the victim without her consent. That conduct unquestionably ‘foster[ed] general
knowledge of’ the victim’s image and made it ‘more widely known.’ Therefore,
defendant’s conduct clearly fell within the statutory proscription, and she cannot claim that
it was vague for lack of notice as to her circumstances.” Id. ¶ 115.
¶ 21 Given the statute’s plain language, as construed by our supreme court in Austin, defendant
did not disseminate the images when he texted them to his own cell phone. To be sure, as the trial
court found, defendant obtained the images when J.S. handed him her phone, and he accessed the
photo roll. We note that, for purposes of the statute, it does not matter whether defendant had J.S.’s
consent to obtain the images. All that is required is that he “obtain[ed] the image under
circumstances in which a reasonable person would know or understand that the image was to
remain private” (720 ILCS 5/11-23.5(b)(2) (West 2018)). The State must also prove that the
defendant “kn[ew] or should have known that the person in the image has not consented to the
dissemination.” Id. § 11-23.5(b)(3). Here, there is no dispute that J.S. did not consent to
defendant’s distribution of the images, whether to himself or another. Rather, the issue is whether
defendant, in texting the images to himself, indeed “disseminated” the images, that is, whether he
“ ‘foster[ed] general knowledge of’ ” the images or made them “ ‘more widely known.’ ” Austin,
2019 IL 123910, ¶ 115 (quoting Webster’s Third New International Dictionary 656, 2208 (1993)).
He did not.
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2022 IL App (2d) 210162¶ 22 Unlike in Austin, where the defendant sent the images “to at least one other person” (id.),
defendant’s act here of sending the images to himself—images of which he already had
knowledge—did not foster general knowledge of the images or make them more widely known,
because he did not send them to anyone else. Nor did he “ ‘BROADCAST’ ” or “ ‘PUBLICIZE’ ”
them. Id. (quoting Websters Third New International Dictionary 656 (1993)). The trial court stated
that “defendant violated the statute by taking these pictures. He knew he was taking them from
[J.S.’s] phone. He knew when he sent them to himself that he was going to have them.” The court’s
focus seemed to be on defendant’s “taking” of the images. While we certainly do not condone
defendant’s actions, his “taking” of the images is not an offense under the statute.
¶ 23 The State “rejects defendant’s position that, to be found guilty, the image had to be
distributed to ‘another person.’ ” The State argues that images can be disseminated without the
involvement of another person; for instance, the images can be posted on a website, blog, or social
media account. We do not dispute that the statute could be violated in such a manner. Indeed, as
noted in Austin: “ ‘Dedicated “revenge porn” sites and other forums openly solicit private intimate
images and expose them to millions of viewers, while allowing the posters themselves to hide in
the shadows.’ ” Id. ¶ 19. But, even though a “poster” is not directly sharing the images with another
person in that situation, the poster is nevertheless indirectly “expos[ing] [the images] to millions
of viewers” (id.) and thereby making them “ ‘more widely known.’ ” Id. ¶ 115 (quoting Webster’s
Third New International Dictionary 2208 (1993)). Here, defendant did not expose the images to
anyone, indirectly or directly.
¶ 24 To the extent there is any ambiguity in the meaning of the term “disseminate”—more
specifically, whether dissemination required that defendant distribute the images to another
person—we may turn to other aids of statutory construction, such as the doctrine of
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2022 IL App (2d) 210162in pari materia, to ascertain the meaning of a provision. People v. Taylor, 221 Ill. 2d 157, 163
(2006). Under the doctrine of in pari materia, two statutes dealing with the same subject will be
considered relative to one another to give them harmonious effect. Id. at 161 n.1.
¶ 25 As defendant points out, after the legislature passed section 11-23.5(b) of the Code, it
passed a civil statute, entitled “Civil Remedies for Nonconsensual Dissemination of Private Sexual
Images Act” (Civil Remedies Act) (Pub. Act 101-556 (eff. Jan. 1, 2020) (adding 740 ILCS 190/1
et seq.))), which provides, in relevant part, as follows:
“(a) Except as otherwise provided in Section 15, if a depicted individual is
identifiable to a reasonable person and suffers harm from the intentional dissemination or
threatened dissemination by a person over the age of 18 of a private sexual image without
the depicted individual’s consent, the depicted individual has a cause of action against the
person if the person knew:
(1) the depicted individual did not consent to the dissemination;
(2) the image was a private sexual image; and
(3) the depicted individual was identifiable.
(b) The following conduct by a depicted individual does not establish by itself that
the individual consented to the nonconsensual dissemination of a private sexual image that
is the subject of an action under this Act or that the individual lacked a reasonable
expectation of privacy:
(1) consent to creation of the image; or
(2) previous consensual disclosure of the image.” 740 ILCS 190/10(a), (b)
(West 2020).
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2022 IL App (2d) 210162Unlike section 11-23.5(b) of the Code, which does not define “disseminate,” the Civil Remedies
Act expressly provides: “ ‘Dissemination’ or ‘disseminate’ means publication or distribution to
another person with intent to disclose.” (Emphasis added.) 740 ILCS 190/5(4) (West 2020). This
definition clarifies that dissemination requires either “publication” of the images—for instance, by
posting on social media—or “distribution to another person.” Id. Defendant did neither.
¶ 26 The State’s brief does not address the Civil Remedies Act. Instead, the State simply asserts
that “ ‘another person’ includes the person(s) depicted within the distributed image(s), and not
‘another person’ other than defendant (the disseminator).” Thus, according to the State, when
defendant texted the images to himself, he disseminated J.S.’s images to “another person” other
than J.S. The State provides no support for this interpretation. In any event, the language of the
Civil Remedies Act refutes it. The Civil Remedies Act provides for a cause of action for harm
suffered by the “dissemination by a person over the age of 18” (emphasis added) (id.§ 10(a)) and
defines dissemination as “publication or distribution to another person” (emphasis added) (id.
§ 5(4)). Thus, the disseminator, “a person,” must publish or distribute to “another person” other
than the disseminator.
¶ 27 The State also purports to support its position by citing two out-of-state cases—People v.
Iniguez, 202 Cal. Rptr. 3d 237 (App. Dep’t Super. Ct. 2016), and Morehead v. Commonwealth,
784 S.E.2d 301 (Va. Ct. App. 2016)—contending that they are “[i]nstructive.” Unfortunately, the
State does little more than briefly summarize these cases with no explanation of how they inform
our decision here. In any event, we do not find either case persuasive.
¶ 28 The State relies on Iniguez for the following statement made by the California court:
“Completely absent from the legislative history is any indication that the statute should be limited
to situations where a person delivered or transferred an image to another specific person.” Iniguez,
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2022 IL App (2d) 210162202 Cal. Rptr. 3d at 245. However, when considered in context, the statement provides no support
for the State’s position that, here, defendant need not have disseminated the images to another
person to be found guilty. In Iniguez, the defendant was charged with “ ‘distribut[ing]’ ” a private
image, based on his act of posting a topless picture of the victim on her employer’s Facebook page.
Id. at 240-42 (quoting Cal. Penal Code § 647(j)(4)(A) (West 2014)). The defendant argued that the
court should (1) adopt the dictionary definition of “distributes,” defining it to mean “ ‘[t]o
deliver,’ ” or (2) use the meaning contained in the federal and state statutes barring distribution of
child pornography—the federal statute requiring transfer of the pornography to another person and
the state statutes requiring transfer of possession. Id. at 245 (quoting Black’s Law Dictionary 543
(9th ed. 2009)). According to the defendant, because “posting an image on a social media site such
as Facebook does not effectuate delivery of the image or transfer to a specific person,” he could
not be found guilty of distributing a private image. Id. The reviewing court disagreed. The court
found no indication in the statutory language that the term “ ‘distribute[s]’ was intended to have a
technical legal meaning, or to mean anything other than its commonly used and known definition
of ‘to give or deliver (something) to people.’ ” Id. (quoting Merriam-Webster Online Dictionary,
http://www.merriam-webster.com/dictionary/distribute (last visited Mar. 4, 2016)
[https://perma.cc/3KAS-J3VA]). The court further found that, to the extent the term was
ambiguous, legislative history was “replete with indications that posting images on public Web
sites was precisely one of the evils the statute sought to remedy.” (Emphasis in original.) Id. The
court concluded: “Completely absent from the legislative history is any indication that the statute
should be limited to situations where a person delivered or transferred an image to another specific
person.” Id. Indeed, Iniguez states that the image need not be transferred to another specific person.
However, this statement was in the context of determining whether a posting on Facebook, which
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2022 IL App (2d) 210162is not a transfer to a specific person, was otherwise sufficient to establish that the defendant
distributed the image. The analysis in Iniguez assumed that distribution under the California statute
entailed, at a minimum, that the defendant shared the image with a third party; the question was
whether posting to a website was sufficient. Here, by contrast, the very issue is whether (under
Illinois law) dissemination requires sharing with a third party.
¶ 29 In Morehead, the defendant posted sexual images of his wife, from whom he was separated,
on a website called “myex.com” and posted links to the images on his wife’s employer’s Facebook
page. Morehead, 784 S.E.2d at 302. The defendant e-mailed and texted his wife, letting her know
what he had done. Id. Two of the e-mails included screenshots of the images such that she did not
have to use the link to see them. Id. The defendant was charged under a Virginia statute and found
guilty of “ ‘disseminat[ing]’ ” the images. Id. at 303 (quoting Va. Code Ann. § 18.2-386.2(A)
(West 2014)). The sole issue on appeal was whether venue was proper in James City County,
where the wife received the e-mails and viewed the website. The statute under which the defendant
was charged contained a separate venue provision, which provided that venue was proper where
the criminal act occurred “ ‘or’ where the images were ‘produced, reproduced, found, stored,
received, or possessed in violation of the statute.’ ” Id. (quoting Va. Code Ann. § 18.2-386.2(B)
(West 2014)). The trial court found that, because the wife received the e-mails while in James City
County, venue in that county was proper. The defendant argued that “emails to one person,
specifically the subject of the images, do not constitute dissemination in violation of the statute
because it is not a widespread communication.” Id. The court stated that the defendant’s “narrow
argument *** belies the evidence produced at trial. The malicious dissemination in violation of
the statute occurred when [the defendant] posted the images on the website for others to see; thus,
completing the crime.” Id. The court went on to reject the defendant’s argument that, based on the
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2022 IL App (2d) 210162use of the word “ received’ ” in the venue provision of the statute, the State was required to prove
receipt of the images as an element of the offense. Id. at 303-04. The court stated that “[the venue
provision] merely directs where to prosecute the offense, and it does not create additional crimes.
Thus, receiving the images is not a crime; what is a violation of the statute is the crime of the
unauthorized, malicious, dissemination of the images.” Id. at 304.
¶ 30 As noted, the State does not explain why it believes Morehead is “instructive.” We presume
that the State relies on Morehead to establish that defendant’s text containing the images did not
need to be received by another person to constitute dissemination. Morehead, however, assumed
that Virginia law required that the defendant shared the images with a third party. We do not make
that assumption for Illinois law; rather, the very issue here is whether defendant’s text needed to
be sent to another person.
¶ 31 Based on the foregoing, we hold that the evidence was insufficient to establish that
defendant disseminated the sexual images.
¶ 32 We next consider defendant’s argument that the evidence was insufficient to prove beyond
a reasonable doubt that J.S. was “identifiable.” 720 ILCS 5/11-23.5(b)(1)(B) (West 2018).
¶ 33 The trial court found 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.” However, that is not what the statute requires. The statute requires that the
person in the image be “identifiable from the image itself or information displayed in connection
with the image.” Id.
¶ 34 Here, J.S. was not identifiable from the image itself. The trial court specifically noted as
much stating: “it could be any female and there is no way to identify the person with red nails or
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2022 IL App (2d) 210162anything from those.” That determination should have ended the analysis. However, the court
erroneously concluded that J.S. was identifiable because defendant knew it was her. In making this
determination, the court relied on the fact that J.S. was standing in front of defendant when she
handed him her cell phone, that the images were on J.S.’s cell phone, and that J.S. was wearing
nail polish similar to that seen in the images. This reasoning goes beyond the language of the
statute. While these additional facts may have suggested to defendant that J.S. was the person
depicted in the images, the images themselves were anonymous. As the trial court noted, “it could
be any female.” Indeed, simply because the images were on J.S.’s cell phone does not mean that
the images depicted J.S. Thus, the evidence was insufficient to prove beyond a reasonable doubt
that J.S. was “identifiable from the image itself.” Id.¶ 35 We reject the State’s argument (raised for the first time on appeal) that J.S. was identifiable
based on “information displayed in connection with the image,” specifically (1) “her personal
phone number *** connected to the photos with the outgoing text message” and (2) the “metadata
embedded within [the] photos.” According to the State, a Google search of J.S.’s phone number
would reveal her name, age, relatives, current and past addresses, and e-mail address. Metadata
would reveal “coordinates of where the picture was taken, along with the date and camera
settings.” However, even if a Google search of the phone number revealed that the images were
connected to J.S.’s cell phone or metadata revealed where the image was taken, as already noted,
this would not prove beyond a reasonable doubt that the person in the image is identifiable as J.S.
Given that “the image does not contain sufficient information to identify the person depicted,” the
statute does not apply. See Austin, 2019 IL 123910, ¶ 80.
¶ 36 Accordingly, we hold that the evidence was insufficient to prove defendant guilty beyond
a reasonable doubt of nonconsensual dissemination of sexual images.
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2022 IL App (2d) 210162¶ 37 B. Conviction of the Lesser Included Offense
¶ 38 Rule 615(b)(3) empowers this court to “reduce the degree of the offense of which the
appellant was convicted.” Ill. S. Ct. R. 615(b)(3) (eff. Jan. 1, 1967). Our authority under this rule
is “broad” and applies “even when the lesser offense is not charged and the State did not request
an instruction on the lesser offense at trial.” People v. Kennebrew, 2013 IL 113998, ¶ 25. In this
case, given the unique facts and the parties’ concession that defendant is guilty of the lesser-
included offense, we exercise our authority under Rule 615(b)(3). See People v. Guerrero, 2018
IL App (2d) 160920, ¶ 71.
¶ 39 Section 2-9(a) of the Code (720 ILCS 5/2-9(a) (West 2018)) defines a lesser included
offense as one that “[i]s established by proof of the same or less than all of the facts or a less
culpable mental state (or both), than that which is required to establish the commission of the
offense charged.” Imposition of an uncharged lesser included offense is proper if “the defendant
had sufficient notice of the uncharged offense.” Kennebrew, 2013 IL 113998, ¶ 53. “ ‘[T]he lesser
offense need not be a necessary part of the greater offense, but the facts alleged in the charging
instrument must contain a broad foundation or main outline of the lesser offense.’ ” People v.
Figuero, 2020 IL App (2d) 160650, ¶ 78 (quoting Kennebrew, 2013 IL 113998, ¶ 30). “ ‘The
indictment need not explicitly state all of the elements of the lesser offense as long as any missing
element can be reasonably inferred from the indictment allegations.’ ” Id. (quoting Kennebrew,
2013 IL 113998, ¶ 30).
¶ 40 The indictment charged nonconsensual dissemination of sexual images (720 ILCS 5/11-
23.5(b) (West 2018)) “in 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
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2022 IL App (2d) 210162image, and defendant knew that J.S. did not consent to the dissemination.” Under section 26-
1(a)(1) of the Code, “A person commits disorderly conduct when he or she knowingly: (1) Does
any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the
peace[.]” 720 ILCS 5/26-1(a)(1) (West 2018).
¶ 41 Here, the act of intentional dissemination as alleged in the indictment was sufficient to
establish the element of an “act” done “an unreasonable manner” for purposes of disorderly
conduct. Id. The remaining elements—alarm or disturb another and to provoke a breach of the
peace—have also been established by the evidence. See People v. Kolton, 219 Ill. 2d 353 (2006)
(holding that, although the indictment alleged predatory criminal sexual assault of a child based
on the defendant’s act of placing his finger into the victim’s vagina, it could be reasonably inferred
that the defendant acted for sexual gratification or arousal, as required for the uncharged offense
of aggravated criminal sexual abuse). Based on the foregoing, and in light of the parties’
concessions, we hold that defendant had sufficient notice of the uncharged offense of disorderly
conduct.
¶ 42 We next address the sufficiency of the evidence as to that offense. We find instructive
People v. Pence, 2018 IL App (2d) 151102, and People v. Singer, 2021 IL App (2d) 200314.
¶ 43 In Pence, we considered whether the defendant was proved guilty beyond a reasonable
doubt of disorderly conduct, based on his act of sending a Facebook message to 16-year-old D.K.,
saying “ ‘Hey. Long time no talk. How have you been?’ ” Pence, 2018 IL App (2d) 151102, ¶ 3.
There was a history between D.K. and the defendant, which involved inappropriate sexual activity
between the then-19-year-old defendant and the then-12-year-old D.K., and the defendant was
ultimately convicted of traveling to meet a minor and grooming. Id. ¶¶ 4, 18. When D.K. received
the Facebook message while at school, she was “ ‘scared’ ” and immediately contacted her mom.
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2022 IL App (2d) 210162Id. ¶ 5. D.K. and her mom met with police and requested extra police presence at their home. Id.
¶ 9. The defendant argued that his “ ‘innocuous greeting’ ” could not constitute disorderly conduct.
Id. ¶ 18. In considering the sufficiency of the evidence, we noted:
“The purpose of the disorderly-conduct statute is to protect against ‘ “an invasion
of the right of others not to be molested or harassed, either mentally or physically, without
justification.” ’ [Citation.] The types of conduct included within the scope of the offense
of disorderly conduct ‘ “almost defy definition.” ’ [Citation.] ‘As a highly fact-specific
inquiry, it “embraces a wide variety of conduct serving to destroy or menace the public
order and tranquility.” ’ [Citation.] ‘[C]ulpability *** revolves not only around the type of
conduct, but is equally dependent upon the surrounding circumstances.’ [Citation.]
‘Generally, to breach the peace, a defendant’s conduct must threaten another or have an
effect on the surrounding crowd.’ [Citation.] ‘However, a breach of the peace can occur
without overt threats or profane and abusive language.’ [Citation.] In addition, it ‘need not
occur in public.’ ” Id. ¶ 17.
We held that, given the context, “a rational trier of fact could have found that [the] defendant’s
attempt to reconnect with his victim was unreasonable and threatening to D.K. and [her mom].
Without a doubt, [the] defendant’s conduct invaded the right of D.K. and [her mom] to not be
mentally harassed.” Id. ¶ 18.
¶ 44 In Singer, the defendant, a youth pastor, sent sexually inappropriate text messages to J.S.,
a minor. Singer, 2021 IL App (2d) 200314, ¶¶ 17-18. When J.S.’s father, D.S., learned of the
messages, he contacted D.S. to discuss the texts with him but took no further action. Id. ¶ 23. When
D.S. later learned that the defendant had been fired from the church, D.S. met with the pastor and
disclosed the text messages to him. Id. ¶ 24. The defendant argued the State failed to prove that
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2022 IL App (2d) 210162his conduct provoked a breach of the peace because “he did not threaten, molest, or harass anyone
and *** his conduct did not menace public order or tranquility.” Id. ¶ 51. We disagreed. Relying
on Pence, we noted that a breach of the peace can occur without overt threats and that it need not
occur in public. Id. We emphasized that “[c]ulpability is equally dependent upon the type of
conduct and the surrounding circumstances.” Id. We noted that, in People v. Albert, 243 Ill. App.
3d 23, 27 (1993), the defendant was convicted of disorderly conduct based on her act of screaming
at 2 a.m., which woke and disturbed one neighbor, and in People v. Ellis, 141 Ill. App. 3d 632, 633
(1986), the defendant was convicted of disorderly conduct based on his act of tearing down
Christmas decorations outside a store while the two store owners watched and then called the
police. We concluded:
“[The] defendant’s texts to J.S. were inappropriately sexual and threatened J.S.
because they were grooming in nature. Looking at the surrounding circumstances,
defendant was J.S.’s spiritual mentor and was in a position of trust, not only to J.S. but also
to his entire family. Those texts caused D.S. to confront defendant verbally and then to
involve the larger church community.” Singer, 2021 IL App (2d) 200314, ¶ 52.
¶ 45 As noted, at oral argument the parties conceded that the evidence was sufficient to prove
defendant’s guilt beyond a reasonable doubt of disorderly conduct. Indeed, defense counsel stated
that the elements of disorderly conduct were “absolutely” established. We agree. As in Pence,
defendant invaded J.S.’s right not to be mentally harassed. J.S. testified that, when defendant
handed the phone back to her and she saw the outgoing text, she “freaked out” due to the personal
nature of the images attached to the outgoing text. She quickly wrote down the phone number to
which the images had been sent and quickly attempted to stop the outgoing text. The store manager
noticed that J.S. “was panicked about something” and asked her what was wrong. Defendant
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2022 IL App (2d) 210162himself admitted that what he did was “horrible.” As in Singer, defendant’s actions impacted
others. When J.S. got home that evening, she had to tell her dad and her stepmom what had
happened. They investigated the phone number J.S. wrote on the Post-It note and discovered that
it belonged to defendant. They immediately called the police and then met with them over several
days.
¶ 46 As our supreme court noted in Kennebrew, a defendant “has no right to an acquittal when
the evidence, while insufficient to establish the greater offense, is sufficient to establish the lesser
offense. To do otherwise would be unjust.” Kennebrew, 2013 IL 113998, ¶ 43. Defendant
acknowledged as much when he stated that what he did was “horrible” and “that he should face
consequences.” Accordingly, given our authority under Rule 615(b)(3), the parties’ concessions,
the compelling evidence that defendant was guilty of disorderly conduct, and the interests of
justice, we reduce defendant’s conviction of nonconsensual dissemination of sexual images to a
conviction of disorderly conduct. We remand for sentencing on that offense.
¶ 47 III. CONCLUSION
¶ 48 For the reasons stated, we reduce defendant’s conviction of nonconsensual dissemination
of sexual images to a conviction of disorderly conduct. We remand the matter to the circuit court
of Kane County for sentencing.
¶ 49 Judgment modified.
¶ 50 Cause remanded with directions.
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2022 IL App (2d) 210162No. 2-21-0162
Cite as: People v. Devine, 2022 IL App (2d) 210162Decision Under Review: Appeal from the Circuit Court of Kane County, No. 18-CF-2047;
the Hon. David P. Kliment, Judge, presiding.
Attorneys John W. Gaffney, of Harvard, for appellant.
for
Appellant:
Attorneys Jamie L. Mosser, State’s Attorney, of St. Charles (Patrick Delfino,
for Edward R. Psenicka, and Adam Trejo, of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.
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