Appeal from the Circuit Court of Du Page County. No. 09-CM-6832 Honorable Brian J. Diamond, Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices McLaren and Zenoff concurred in the judgment and opinion.
¶ 1 Following a bench trial, the defendant, Steven C. Kucharski, was convicted of two counts of violating the Harassing or Obscene Communications Act (the Act or the electronic harassment statute) (720 ILCS 135/1-2(a)(1), (a)(2) (West 2008)), and one count of unlawful use of encryption (720 ILCS 5/16D-5.5(b)(1) (West 2008) (the encryption statute) (amended by Pub. Act 96-1551, art. 5, § 5-5 (eff. July 1, 2011); now see 720 ILCS 5/17-52.5 (West 2010))). On appeal, the defendant argues that his convictions should be reversed because the statutes at issue are unconstitutional. Alternatively, he challenges the sufficiency of the evidence and argues that he was not proved guilty beyond a reasonable doubt. For the following reasons, we affirm the defendant's convictions of harassment through electronic communications but reverse his conviction of unlawful use of encryption.
¶ 3 On November 25, 2009, the defendant was charged by criminal complaint with attempted identity theft (720 ILCS 5/8-4(a) (West 2008)) (count I), harassment through electronic communications (720 ILCS 135/1-2(a)(2) (West 2008)) (count II), harassment through electronic communications (720 ILCS 135/1-2(a)(1) (West 2008)) (count III), and unlawful use of encryption (720 ILCS 5/16D-5.5(b)(1) (West 2008) (now 720 ILCS 5/17-52.5(b)(1) (West 2010))) (count IV).
¶ 4 Count I alleged that the defendant committed attempted identity theft by taking a substantial step toward the commission of that offense by knowingly, without authority, using personal identifying information (a computer password) of the victim without the victim's express permission. Count II charged the defendant with "knowingly interrupting, with the intent to harass [the victim], the electronic communication service, being transmissions by a computer through the Internet, of [the victim]." Count III charged that the defendant knowingly "accessed the MySpace.com social networking website of [the victim] and changed the personal webpage of [the victim] and made the comment 'Need a blow job? My dad buys them for my boyfriends!' which is lewd, with the intent to offend [the victim]." Finally, count IV charged unlawful use of encryption in that the defendant "knowingly used or attempted to use encryption" to promote the offense charged in count III by changing the victim's MySpace password, thereby "using a disruptive measure via computer to prevent [the victim's] access to the MySpace.com global computer network."
¶ 5 On May 10, 2011, a bench trial was held. The victim testified that the defendant had been her boyfriend for 21/2 years. They broke up prior to August 2009 and they were not on good terms.
While they were dating, the defendant created a MySpace account for her because she was "kind of computer illiterate." She and the defendant, but nobody else, knew the password to that account. She was not aware that an email account was set up in association with the MySpace account. When she and the defendant broke up, she changed the password on the MySpace account "probably about five times just to make sure."
¶ 6 On August 21, 2009, she noticed that her MySpace page had a picture of her in a thong along with her name, address, phone numbers, and other information about her family. The items about her family included "stuff about Kentucky, me being a slut, about my father, things like that." She had not made these changes to her MySpace account and she did not know when they were made. She identified People's Exhibit No. 3 as her MySpace page on that date. The photo on the page, of her in a thong, was taken by the defendant with his cell phone about five to six months prior. She gave the defendant permission to take the photo. However, when they broke up, she asked him to remove the photo from his cell phone. She did not give anyone permission to post the photo on MySpace. The alterations to her page made her feel degraded, hurt, and upset.
¶ 7 After observing her MySpace page as it appeared in People's Exhibit No. 3, the victim called the defendant and told him to remove everything or she was going to call the police. The defendant started "giggling and laughing" and told her that she deserved it. The victim testified that she then called the police. Deputy Ben Hecht came to her house. She told the deputy that she suspected that the defendant had altered her MySpace page. She noticed that her MySpace page was again altered about two hours later on the same day. The photo and all her personal information was removed-her page was essentially deleted. She had not deleted the page. She was unable to delete the page herself because her password had been changed.
¶ 8 A review of People's Exhibit No. 3 reveals the following. A box in the upper left corner of the page includes the victim's name below the word "Whore" and also states "Mood: slut." The box includes the photo of the backside of the victim, who is bending forward and wearing only a thong. Next to the photo, it states: "Need a blow job? My dad buys them for my boyfriends." Another box states "Whore's Interests" and includes the victim's address and phone number. Another box, entitled "Whore's Blurbs," states:
I'm a slut with no education. I'm gonna end up with 2 different baby daddys and I cant even get a GED. worst of all my dad buys my boyfriends blow jobs."
It then states "call me" and includes the victim's name and phone number. The same box includes the following: "Who I'd like to meet: my baby nephew! I cant go see him he lives in kentucky and I live in Illinois. I'm to ignorant to go visit I'd rather be in a club sucking dick. O and my mom so I can blaze a joint with her."
¶ 9 Deputy Hecht testified that he worked in the patrol division of the Du Page County sheriff's office. On August 21, 2009, he was dispatched to the victim's home. The victim showed him her MySpace page on her computer. Deputy Hecht testified that what he saw was consistent with People's Exhibit No. 3, a printed copy of what appeared on the victim's computer. The victim had provided him with the defendant's name. He called the defendant's home phone number and spoke with someone. He explained that he needed to speak with the defendant. The investigation was then turned over to Detective David Chiesa.
¶ 10 Detective Chiesa testified that he was assigned to the detective division of the Du Page County's sheriff's office. He investigated computer-related offenses and had received extensive training in that regard. He was assigned to investigate the present case in September 2009. After speaking with the victim, he sent a search warrant to MySpace to obtain information regarding the victim's MySpace account. People's Exhibit No. 2 were the documents he received from MySpace in compliance with the warrant. Individual MySpace accounts can be identified by a web address, also known as a universal resource locator, which is a numerical designation assigned to the account. The number associated with the materials he received was *****9311. Additionally, there was an email address associated with the MySpace account. The email address was "***email@example.com."
¶ 11 Detective Chiesa further testified that he subpoenaed, from Comcast, the Internet protocol (IP) addresses associated with the victim's MySpace account. People's Exhibit No. 1 was the information he received from Comcast. He explained that an IP address is a series of numbers separated by dots or decimal points, which identifies an individual computer on the Internet at a specific time. At any given time on the Internet, no IP addresses are the same. He testified that the subpoenaed information showed that, at certain dates and times, certain computers had accessed the victim's MySpace account. Specifically, between August 18 and 21, 2009, two IP addresses had accessed the victim's MySpace account. The first IP address accessed the account on August 18, 2009, at 1:15 a.m. and at 1:18 a.m. and on August 21, 2009, at 5:23 p.m. and 5:27 p.m., all times being PST. The subscriber associated with this IP address was Paul Kucharski, the defendant's father, at a service address that was the same as the defendant's home address.
¶ 12 Detective Chiesa testified that the purpose of having email addresses associated with MySpace accounts was so that a user could receive information via the messaging utility, update his or her account information, and receive notifications of things posted to the account. He testified that at one point, if you were to change your password, the new password would go to the email address. He was not sure if that still happened, as MySpace had changed its account settings numerous times.
¶ 13 On cross-examination, Detective Chiesa acknowledged that he had not determined how many people resided at the defendant's home address, how many people had access to the IP address at the home address, or how many computers were in the home. He had also not interviewed anyone who resided at the address. Thereafter, the State rested. People's Exhibits No. 1, No. 2, and No. 3 were admitted without objection.
¶ 14 The defendant made a motion for a directed finding. Defense counsel argued that there was no evidence that the defendant was the one who altered the victim's MySpace page. Specifically, the defense argued that the State had proved that it was altered from a computer at the defendant's home address, but the alteration could have been done by a family member or a friend. The State argued that it had proved that the defendant altered the MySpace page, because the defendant had the motive, the knowledge, and the photo. The State argued that, as to count II, the MySpace page was interrupted when it was changed through different transmissions by the defendant. The State argued that this was clearly done by the defendant with an intent to harass the victim. As to count III, the State argued that it had shown that the website was changed and certain comments were made. The changes were obscene and made without the victim's permission and with the intent to offend. Following argument, the trial court found that the State had met its burden at that point and denied the defendant's motion for a directed finding.
¶ 15 Paul Kucharski testified to his home address and stated that he lived there with his wife, his son the defendant, and a younger son. He remembered that a police officer had contacted him in mid-August 2009. After he spoke to the police officer, he spoke to his younger son. His younger son, who was proficient on a computer, then "went and proceeded to go to the computer and take away some stuff off the computer, to the best of my knowledge." He testified that his younger son had shown him pictures of the victim provocatively dressed prior to August 2009. The defense rested.
¶ 16 The trial court found the victim's testimony credible. Specifically, it found that (1) the defendant had set up the MySpace account for the victim, that it was her account, and that only the victim and the defendant knew the password; (2) a computer at the residence where the defendant lived had accessed the victim's MySpace account; (3) the photo on People's Exhibit No. 3 was taken by the defendant on his cell phone; and (4) the alteration to the MySpace posting was clearly done to harass the victim. The trial court noted that the victim had changed her MySpace password five times after she broke up with the defendant, yet the password was still changed without her knowledge, which prevented her from accessing the account. "This suggested someone who was intimately familiar with the details of the account, such as the individual who had set it up." The trial court noted that the defendant had the motive and made statements to the victim that she deserved it. The trial court further noted that the MySpace page was taken down within a couple of hours after the victim called the defendant. The trial court found that the defendant's father's testimony was not credible and was simply "a father trying to help out his son." The trial court determined that, based on the totality of the evidence, both circumstantial and direct, the defendant was proved guilty beyond a reasonable doubt of each charge.
¶ 17 Thereafter, the defendant was granted leave to substitute attorneys. The defendant filed a posttrial motion requesting dismissal of all the charges, arguing both that the statutes were unconstitutional based on vagueness and that there was insufficient evidence. The trial court granted the motion in part, vacating the conviction on count I, but upholding the remaining convictions. The trial court noted that the statute at issue in count I had been declared unconstitutional by our supreme court a few weeks prior to trial. The trial court found that the statutes that were the bases for the charges in counts II, III, and IV were not vague, because they adequately informed the defendant of the nature of the offenses such that the defendant was able to sufficiently prepare a defense. The trial court further noted that the statutes at issue did not infringe on the ...