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People v. Gauger

Court of Appeals of Illinois, Second District

June 27, 2018

DONALD R. GAUGER JR., Defendant-Appellant.

          Appeal from the Circuit Court of De Kalb County. No. 13-CF-140 Honorable Robbin J. Stuckert, Judge, Presiding.

          JUSTICE SPENCE delivered the judgment of the court, with opinion. Presiding Justice Hudson and Justice McLaren concurred in the judgment and opinion.



         ¶ 1 Following a bench trial, defendant, Donald R. Gauger Jr., was convicted of violating an order of protection (720 ILCS 5/12-3.4(a) (West 2012)), stalking (id. § 12-7.3(a)(2)), and aggravated stalking (id. § 12-7.4(a)(3)). The trial court merged the lesser convictions and sentenced defendant to five years' imprisonment for aggravated stalking. Defendant appeals, contending that he was convicted under an unconstitutional provision of the aggravated-stalking statute. Because defendant's conviction was proper under another, constitutional, portion of the statute, we affirm.

         ¶ 2 The aggravated-stalking charge alleged that defendant engaged in a course of conduct directed at Crystal Carswell that defendant knew would cause a reasonable person emotional distress while Carswell had an order of protection against him.

         ¶ 3 At trial, Carswell testified that she had been married to defendant and that they had two children together. She had an active order of protection against him. On September 9, 2012, she got a Facebook message from someone she knew in high school, asking if she had recently sent him a new "friend" request. After looking at the profile the friend told her about, she realized that an old Facebook account of hers had been reactivated.

         ¶ 4 At about the same time, she received two Facebook messages that she knew immediately defendant had sent. The first message asked about meeting for a date and the second wished her a happy birthday. The messages were from a Facebook account using the name "Ed Kloog." She knew Ed Kloog, an older man who did not live in Illinois at the time. She contacted him about the messages. Kloog responded that he had only one Facebook account and that he was upset that someone was apparently using his name. Carswell then contacted the De Kalb police and filed a complaint against defendant for sending the messages.

         ¶ 5 The fictitious Facebook activity frightened Carswell. She felt worried every time she left her building. She would constantly look over her shoulder while driving into town, worried that defendant or someone he knew was "going to pop up." She was upset that defendant was "trying to be friends with [her] friends that [she] went to high school with just to find out some things about [her]."

         ¶ 6 Detective Angel Reyes testified that he investigated Carswell's complaint. A subpoena was issued to Facebook to obtain the Internet Protocol (IP) address for the fictitious Ed Kloog account. Facebook provided two different IP addresses, both of which belonged to Charter Communications (Charter). A subpoena was issued to Charter seeking the names of the persons assigned to the two IP addresses. Charter's response indicated that one of the IP addresses was assigned to Raymond Peterson at 610 Stearn Avenue in Genoa.

         ¶ 7 Reyes contacted the Department of Corrections and learned that defendant had recently been paroled and was living at 610 Stearn Avenue. Reyes talked to defendant's parole officer, who told Reyes that, during a recent parole check at defendant's home, he obtained the IP address of defendant's computer. Reyes testified that the IP address obtained by the parole officer was the same one that Reyes was investigating.

         ¶ 8 Using this information, Reyes obtained a search warrant for defendant's residence. Defendant's computer was seized during the search. A subsequent forensic analysis revealed an image identical to the image used as the profile picture on the fictitious Ed Kloog Facebook account. A compact disc near that computer contained a Facebook post by Carswell and a picture of one of Carswell's children. Police also found a three-ring binder with a page labeled "Facebook" containing four or five fictitious Facebook pages, passwords, and e-mails.

         ¶ 9 Melvin Smith, of the Chicago Regional Computer Forensics Laboratory, conducted a forensic examination of the data from the computer and worked with Reyes to "bookmark" data that was deemed important to the investigation.

         ¶ 10 Reyes reviewed Smith's report. Reyes found on the computer a number of photos and emails pertaining to Carswell and her family. The forensic analysis also turned up references to Ed Kloog and a copy of one of the photos associated with the fictitious account. The computer also contained a copy of a photo of Carswell in a Kohl's dressing room. Carswell said that she posted the picture on her Facebook page in November 2012. The computer also contained a copy of a Carswell family photo taken at J.C. Penney's that Carswell posted on Facebook.

         ¶ 11 Reyes spoke with defendant, who initially denied knowing anything about the fictitious Ed Kloog account. He later acknowledged that he knew about the account, but he claimed that it had been created by a woman named "Debbie." Defendant admitted using the account but only to obtain pictures of his and Carswell's daughter from Carswell's Facebook page. Defendant admitted ...

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