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Criminal Law FLASHPOINTS May 2022

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon
815-732-1170 | E-mail Matthew R. Leisten

Second District Reduces Nonconsensual Dissemination of Sexual Images Conviction to Disorderly Conduct

In People v. Devine, 2022 IL App (2d) 210162, the Second District Appellate Court reduced a conviction for nonconsensual dissemination of sexual images to disorderly conduct because it found that the defendant did not disseminate the images by sending them only to himself and because the sexual images were not identifiable as belonging to the victim.

In Devine, the defendant (23) was an employee at a Verizon store who assisted the female victim (32) in transferring her cell service from Sprint to Verizon. The defendant asked the victim if he could check her cell phone settings, and the victim handed him her phone. The victim saw the defendant’s fingers moving across the screen but could not see the screen. 2022 IL App (2d) 210162 at ¶4.

The victim saw that a text message was sent from her cell phone to a number that she did not recognize when the phone was returned to her. The text message contained five photos of her vagina that she had taken a few days earlier. The photos had been stored in the cell phone’s “recent photos” section. 2022 IL App (2d) 210162 at ¶5.

The victim attempted to stop the text message from being sent but was unsuccessful. The victim later determined that the unfamiliar phone number belonged to the defendant after performing a Google search on the number and locating the defendant’s Facebook page. 2022 IL App (2d) 210162 at ¶6.

The defendant was charged with nonconsensual dissemination of sexual images (a Class 4 felony). During the bench trial, the victim identified the cell phone images at trial as the photos she had taken of her vagina. The victim testified that she took the photos, recognized her nail polish on her fingers, and recognized how that part of her body looks. 2022 IL App (2d) 210162 at ¶7. The trial court found the defendant guilty of nonconsensual dissemination of sexual images. 2022 IL App (2d) 210162 at ¶8.

The appellate court held that the defendant did not “disseminate” the images when he texted the images to his own cell phone. The appellate court cited the Illinois Supreme Court’s decision in People v. Austin, 2019 IL 123910, 155 N.E.3d 439, 440 Ill.Dec. 669 (upholding nonconsensual dissemination of sexual images conviction when defendant wrote letter to her ex-fiancé’s cousin detailing their breakup and attached naked photos that victim had sent to ex-fiancé’s iCloud account, but account was still shared by defendant and her ex-fiancé). In Austin, the Supreme Court stated that “disseminate” was defined as “to foster general knowledge of” or “to make more widely known.” 2022 IL App (2d) 210162 at ¶20, quoting Austin, supra, 2019 IL 123910 at ¶115.

The Devine court concluded that the defendant did not “foster general knowledge of” or make the images “more widely known” under the Supreme Court’s interpretation of “dissemination” when the defendant texted the victim’s private images to himself. 2022 IL App (2d) 210162 at ¶21. The appellate court distinguished the conviction in Austin because the defendant in Austin sent the images to at least one other person, while defendant Devine’s actions of sending the images only to himself did not foster general knowledge of the images or make them more widely known. 2022 IL App (2d) 210162 at ¶22.

The appellate court also looked at the doctrine of in pari materia, in which two statutes dealing with the same subject will be considered relative to each other in order to give them harmonious effect. 2022 IL App (2d) 210162 at ¶24. The appellate court noted that the Civil Remedies for Nonconsensual Images Dissemination of Private Sexual Images Act, 740 ILCS 190/1, et seq., was passed after the criminal statute. The appellate court further noted the civil statute defined “disseminate” as publication or distribution to another person with intent to disclose. Accordingly, the appellate court found that the civil definition of “disseminate” clarified that the dissemination under the criminal statute requires publication of the images or distribution to another person. 2022 IL App (2d) 210162 at ¶25.

The appellate court also found that that state failed to prove that the victim was “identifiable” in the images because the images were anonymous. 2022 IL App (2d) 210162 at ¶¶32 – 36. The appellate court noted that the statute required that the person in the image be identifiable from the image itself or information displayed in connection with the image. The appellate court stated: “Indeed, simply because the images were on J.S.’s cell phone does not mean that the images depicted J.S.” 2022 IL App (2d) 210162 at ¶¶33 – 34.

However, the appellate court concluded that the evidence was sufficient to convict the defendant of disorderly conduct and reduced the conviction to disorderly conduct. 2022 IL App (2d) 210162 at ¶46.


Matthew Chivari, Chivari P.C., Chicago
312-975-5732 | E-mail Matthew Chivari

Fate of the Medical Records Exclusion to the Hearsay Rule

On March 24, 2022, in their decision in People v. Deroo, 2022 IL 126120, the Illinois Supreme Court amended Illinois Rule of Evidence 803(6) by removing the medical records exclusion from the business records hearsay exception for criminal cases — the lingering exception to the exception. In doing so, the Supreme Court resolved inconsistencies within the rule itself as well as the conflict between the rule and §11-501.4(a) of the Illinois Vehicle Code, 625 ILCS 5/1-100, et seq.

During his jury trial for aggravated driving under the influence (DUI) and aggravated driving while his license was revoked, the results of the chemical analysis of the defendant’s blood test establishing the defendant’s blood alcohol level were admitted into evidence by the state pursuant to §11-501.4(a) of the Vehicle Code, which permits the admission of chemical blood tests conducted in the course of emergency medical treatment “as a business record exception to the hearsay rule.” 625 ILCS 5/11-501.4(a). The defendant was convicted and sentenced to concurrent terms of imprisonment of nine and three years, respectively, and appealed. 2022 IL 126120 at ¶12.

On appeal, the defendant argued that §11-501.4(a) conflicts with Ill.R.Evid. 803(6), which clearly excludes “medical records in criminal cases” from the business records exception to the hearsay rule in Illinois. Since Ill.R.Evid. 803(6) should control over §11-501.4(a), as the defendant further maintained, the trial court should have ruled the results of the chemical blood test were inadmissible hearsay. 2022 IL 126120 at ¶2. Affirming the trial court, the appellate court determined there was no conflict between the rule and the Vehicle Code. Id., citing 2020 IL App (3d) 170163. Although the Supreme Court affirmed the judgment of the appellate court, it took issue with the asserted conflict between the statute and the rule of evidence. Id.

Consequently, the Supreme Court’s analysis hinged on interpretation of both. The principles of interpretation establish the need “to ascertain and give effect to the intention of the drafters” as the primary goal. 2022 IL 126120 at ¶19, citing People v. Gorss, 2022 IL 126464 at ¶10. Such intent is derived from the plain and ordinary meaning of the language used. Id. Further, when the language is clear and unambiguous, the court must apply the language used without any extraneous aids of construction. Id.

The court turned first to §11-501.4 of the Vehicle Code, which states, in part:

Admissibility of chemical tests of blood, other bodily substance, or urine conducted in the regular course of providing emergency medical treatment.

(a) Notwithstanding any other provision of law, the results of blood, other bodily substance, or urine tests performed for the purpose of determining the content of alcohol . . . conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence as a business record exception to the hearsay rule only in prosecutions for any violation of Section 11-501 of this Code . . . when each of the following criteria are met:

(1) the chemical tests performed upon an individual’s blood . . . were ordered in the regular course of providing emergency medical treatment and not at the request of law enforcement authorities;

(2) the chemical tests . . . were performed by the laboratory routinely used by the hospital; and

(3) results of chemical tests performed . . . are admissible into evidence regardless of the time that the records were prepared. [Emphasis added.] 625 ILCS 5/11-501.4(a).

Ill.R.Evid. 803(6) (eff. Apr. 26, 2012) read:

HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL. . . .

The following are not included by the hearsay rule, even though the declarant is available as a witness:

* * *

(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness, but not including in criminal cases medical records. [Emphasis added.] 2022 IL 126120 at ¶21.

The Deroo court deemed the language of both §11-501.4(a) and Ill.R.Evid. 803(6) to be clear and unambiguous. 2022 IL 126120 at ¶22. Section 11-501.4(a) of the Vehicle Code allows for the admission of chemical blood tests — a type of medical record — as a business record exception to the hearsay rule. By contrast, Ill.R.Evid. 803(6) explicitly excludes medical records from this exception in criminal cases. Upon consideration of the plain language contained therein, each provision, as the Supreme Court asserted, mandates a different action, the rule prohibiting what the statute allows. An irrefutable conflict between the two is clear. Id.

On appeal, the state argued first that there is no such conflict, invoking the Committee Commentary to the Illinois Rules of Evidence in support. 2022 IL 126120 at ¶23. The referenced commentary notes, in part, that the rules “[we]re not intended to abrogate or supersede any current statutory rules of evidence” and were crafted “to avoid in all instances affecting the validity of any existing statutes promulgated by the Illinois legislature.” Committee Commentary to the Illinois Rules of Evidence. Consequently, according to the state’s reasoning, Ill.R.Evid. 803(6) did not invalidate §11-501.4 of the Vehicle Code. 2022 IL 126120 at ¶23. The Supreme Court disagreed, reasserting the need to look first to the language itself, which, if clear and unambiguous, must be given effect as written, without consideration of extratextual materials. 2022 IL 126120 at ¶24.

The state argued in the alternative that even if a plain language reading of the two provisions required different results in the admissibility of blood tests, there was still no conflict between the two because they constitute fundamentally different exceptions. 2022 IL 126120 at ¶25. Ill.R.Evid. 803(6), according to the state, creates a relatively broad business records exception, while §11-501.4(a) establishes a specific “emergency room” exception. Id. The Supreme Court categorically rejected this argument. Id.

In spite of the clear conflict between the two, both §11-501.4(a) of the Vehicle Code and Ill.R.Evid. 803(6) are based on the same underlying rationale — business organizations, including hospitals, rely on records made in the regular course of business, which are useless unless accurate, thus rendering them sufficiently trustworthy for use in courts. 2022 IL 126120 at ¶¶26 – 27. Regardless, the Daroo court recognized that since it is impossible to give effect to both the statute and the rule simultaneously, a resolution was necessary. 2022 IL 126120 at ¶28.

Amendment of Illinois Rule of Evidence 803(6)

In support of the proposed remedy, the Supreme Court considered in detail the historical development of the medical records exclusion to the business records exception to the hearsay rule in Illinois. 2022 IL 126120 at ¶¶30 – 39. A few key points are worthy of mention here. The 1922 decision in Wright v. Upson, 303 Ill. 120, 135 N.E. 209, 219 (1922),established the common-law rule in Illinois excluding medical records from the business records hearsay exception. To be admissible, as the Wright court held, a hospital record containing an opinion or diagnosis of a patient’s condition would require the person(s) who entered the opinion or diagnosis to testify to the entry’s veracity. Id. In the 1960s, this common-law rule codified this exclusion for both criminal cases, in §115-5 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat. (1967), c. 38, ¶115-5), and civil cases, in Illinois Supreme Court Rule 236 (eff. Jan. 1, 1967). 2022 IL 126120 at ¶¶ 33 – 34. The relative status quo was challenged with the enactment of the Federal Rules of Evidence in 1975. 2022 IL 126120 at ¶36.

Fed.R.Evid. 803(6) settled historically divided schools of thought regarding whether medical records rightly fall within the business records exception to the hearsay rule as a matter of federal law. Id. Fed.R.Evid. 803(6) emphatically included medical records in the rule, using the terms “opinions” and “diagnoses” to describe the contents of records that may fall under the hearsay exception. Id. Following suit, the Supreme Court amended Rule 236 to incorporate medical records into the business records exception in civil matters. 2022 IL 126120 at ¶38. Section 115-5 of the Code of Criminal Procedure maintained the medical records exclusion, as it does to this day. Id. Then, in 2010, the Illinois Supreme Court adopted the Illinois Rules of Evidence, including Ill.R.Evid. 803(6). 2022 IL 126120 at ¶39. Like its federal counterpart, Ill.R.Evid. 803(6) applied to both criminal and civil matters and incorporated the same express language including “opinions[ ] or diagnoses” as content that falls within the business records exception. Id. However, almost inexplicably, and unlike the federal rule, Ill.R.Evid. 803(6) also excludes medical records from the business records exception in criminal cases. Id. This creates inherent inconsistencies between the inclusion of records that include “opinions[ ] and diagnoses,” and the continued exclusion of medical records in criminal cases. 2022 IL 126120 at ¶40.

Both the inconsistencies within the rule and the rule’s conflict with §11-501.4(a) of the Vehicle Code can be resolved, as the Illinois Supreme Court held, by amending Illinois Rule of Evidence 803(6) and eliminating the medical records exclusion from the business records exception contained therein. Id. When the Supreme Court adopted the Illinois Rules of Evidence in 2010 and determined that opinions and diagnoses appropriately fall within the business records exception, “the rationale for excluding medical records from the hearsay exception was eliminated.” 2022 IL 126120 at ¶41. The high court went a step further, declaring that there was no basis to exclude medical records from the exception in criminal matters but not in civil ones — “the trustworthiness of a recorded document does not change depending on whether the document is used in a civil matter or a criminal one.” 2022 IL 126120 at ¶42.

Ultimately, the Supreme Court held that Ill.R.Evid. 803(6) is amended effective immediately, applies to all pending cases, and, to the extent that the amended rule conflicts with §155-5(c)(1) of the Code of Criminal Procedure, “the rule takes precedence.” 2022 IL 126120 at ¶45.

For more information about criminal law, see JAMES J. AHERN ON DUI CASELAW (IICLE®, 2022). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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