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
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
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