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People v. Johnson

Court of Appeals of Illinois, First District, First Division

November 20, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ASHLEE JOHNSON, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 16 ACC 0121 Honorable Gregory R. Ginex, Judge, presiding.

          PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion. Justices Harris and Simon concurred in the judgment and opinion.

          OPINION

          PIERCE, PRESIDING JUSTICE.

         ¶ 1 Defendant Ashlee Johnson appeals from the trial court's October 26, 2016, order finding her in direct civil contempt of court when, in defiance of a court order, she did not unlock her cellular phone. On appeal, defendant contends that the trial court abused its discretion by finding her in contempt because her failure to follow the court's order to unlock her phone was not a willful act of defiance, but rather the result of her inability to remember her passcode. We affirm.

         ¶ 2 Defendant was arrested on February 5, 2016, and charged by indictment with two counts of distribution of harmful material (distribution) and two counts of grooming. In the indictment, the State alleged that defendant, being over the age of 18, committed the offense of distribution when she knowingly exhibited digital images of her sex organ to Z.O. and M.O., both minors, by utilizing her cellular telephone.

         ¶ 3 After defendant's arrest, police executed a search warrant on, inter alia, defendant's car and devices, including cellular phones. In defendant's car, police recovered a cellular phone matching the victims' description of the phone that defendant had used to show them sexually explicit images. Defendant's cellular phone is passcode protected and, therefore, inaccessible to the State.

         ¶ 4 On June 21, 2016, the State filed a motion to compel defendant either to provide the State with her cellular phone's passcode or to manually unlock her phone in the presence of the State without disclosing her passcode. In a memorandum in support of the motion, the State alleged that, between the months of September and December 2015, defendant babysat two minors, 12-year-old Z.O. and 10-year-old M.O., who spent their weekends at defendant's house. The minors were the adopted children of defendant's relative. On one occasion, defendant showed the minors, on her cellular phone, a photo of a naked adult male holding his penis. Defendant told the minors that the man in the photo was her boyfriend. Some time later, defendant showed the minors another picture on her phone, which depicted defendant's vagina being manipulated by a person's hand. Defendant told the minors that she was sending this photo to her boyfriend. The minors both described defendant's cellular phone as being in a pink case with white gems on the back.

         ¶ 5 Defendant filed a written response to the State's motion, arguing that it would be a violation of her fifth amendment rights for the court to compel her to provide her passcode.

         ¶ 6 On September 20, 2016, the court heard arguments on the State's motion. The State argued that it was entitled to the images on the phone that were shown to the victims pursuant to Illinois Supreme Court Rule 413. Ill. S.Ct. R. 413(e) (eff. July 1, 1982) ("Upon a showing of materiality, and if the request is reasonable, the court in its discretion may require disclosure to the State of relevant material and information not covered by this rule."). The State also argued that providing the passcode, or unlocking the phone for detectives in open court, would be a physical act and, therefore, would not implicate defendant's fifth amendment rights. Finally, the State argued that, even if the court found that providing the passcode was testimonial in nature, the State was entitled to the passcode because the existence and location of the images on the cellular phone falls into the "foregone conclusion" exception to the fifth amendment's protections. See Fisher v. United States, 425 U.S. 391, 411 (1976).

         ¶ 7 Defendant replied that, essentially, the State was asking her to testify against herself by providing the passcode because it was asking for the contents of her mind. During the argument, defense counsel stated that, hypothetically, "the State does not know if [defendant] has the ability to enter [the phone's] passcode." When the court questioned counsel's assertion, he responded, "Even if the Court believes [the State] probably knows that [defendant] could enter [the passcode], that doesn't mean she remembers it. She's been in jail for six months."

         ¶ 8 The court granted the State's motion to compel defendant to unlock her cellular phone. In announcing its decision, the court noted that it did not believe that defendant no longer remembered her passcode. Defense counsel subsequently filed a motion to reconsider the trial court's ruling. The court denied defendant's motion.

         ¶ 9 On October 26, 2016, the court directed defendant to unlock her cellular phone in open court. Defendant responded, "In the name of Jesus, I do not have that passcode." When the court expressed confusion with defendant's statement, defense counsel responded that "[s]he has indicated that she does not remember her passcode." The court clarified that defendant said that she does not "have" the passcode and not that she was unable to remember the passcode. Defense counsel again stated, "Well, she doesn't remember it. She has been in jail for almost ten months." The court made it "clear" to defendant that it was ordering her to unlock the phone. Defendant responded, "I do not have the passcode because I do not remember the passcode." The court stated that it did not believe that defendant could not remember the passcode and held her in direct civil contempt. The court notified defendant that she could purge the contempt at any time by complying with the court's order to unlock the phone. When defendant again claimed she could not comply because she does not remember the passcode, the court stated: "The bottom line is it is your passcode. You know it, and I don't believe for a second that you don't."

         ¶ 10 On the same date, the court entered a written order, holding defendant in direct civil contempt. In the order, the court found that defendant "willfully and contemptuously refused to open her cell phone *** even though she was physically able to do so." The court found that defendant's refusal to unlock her phone "has impaired and obstructed the court in its administration of justice." Defendant was sentenced to six months' imprisonment, without day-for-day credit, in the Cook County Department of Corrections. The court order noted that defendant could purge her contempt by complying with the order to unlock her cellular phone. Defendant filed a timely notice of appeal.

         ¶ 11 On appeal, defendant contends that her failure to comply with the court's order was not contemptuous because she did not refuse to comply with the court's order; rather, it was impossible for her to comply as she no longer remembered her passcode. Defendant further contends that, because she can no longer remember her ...


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