Following a bench trial, the defendant, Steven C. Kucharski, was convicted of two counts of violating the Harassing and Obscene Communications Act (the Act or the electronic harassment statute), 720 ILCS 135/0.01 Short Title Harassing and Obscene Communications Act 1957. Amended 1998. 720 ILCS 135/1, 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 720 ILCS 5/17-52.5 (West 2010)).
On appeal, the defendant argued that his convictions should be reversed because the statutes are unconstitutional. He challenged the sufficiency of the evidence and argued that he was not proven guilty. The Court affirmed the convictions for harassment through electronic communications but reversed the conviction of unlawful use of encryption.
On November 25, 2009, the defendant was charged by criminal complaint with the criminal complaints herein. Count I alleged that the defendant used the victim's password to her computer without her knowledge, Count II charged the defendant with "knowingly interrupting, with the intent to harass [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 posted obscene comments while posing as the victim and Count IV charged unlawful use of encryption in that the defendant "knowingly used or attempted to use encryption" to commit 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 theMySpace.com global computer network."
On May 10, 2011, a bench trial was held. The victim testified that the defendant had been her boyfriend. While dating, the defendant created a MySpace account for her and only she and the defendant knew the password. When they broke up, she changed the password on the MySpace account a number of times.
On August 21, 2009, she noticed that her MySpace page had a revealing picture of her 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 did not know when they were made. The photo on the page had been taken by the defendant with his cell phone. When they broke up, she asked him to remove the photo from his 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.
After observing her MySpace page, 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. Her MySpace page was again altered about two hours later on the same day.
A box in the upper left corner of the page includes the victim's name below the word "Whore". Next to the photo, it statesd; "Need a **** job? My dad buys them for my boyfriends." Another box stated "Whore's Interests" and includes the victim's address and phone number. Another box, entitled "Whore's Blurbs," states:
"About me:
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."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'sMySpace 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.
"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 defendant's first amendment rights or pertain directly to constitutionally protected speech. Finally, the trial court determined that there was sufficient evidence to find the defendant guilty beyond a reasonable doubt of each charge.
¶ 18 On February 9, 2012, the trial court sentenced the defendant to two years' conditional discharge on count II. The trial court stated that it was not sentencing the defendant on count III or IV. At a hearing on March 7, 2012, the trial court noted that it had sentenced the defendant only on one count because it assumed there was a one-act, one-crime issue. However, it never allowed the parties to address the issue. Accordingly, it requested that the parties do so. The State argued that there was no one-act, one-crime issue, because counts II through IV were based on separate acts. The State argued that count IV was based on changing the password, count III was based on accessing the website and posting the obscene comments and photo, and count II was based on interrupting communication. The defendant argued that the statutes were too vague for him to know whether multiple convictions were a violation of the one-act, one-crime doctrine. The trial court found the State's argument persuasive and sentenced the defendant to concurrent two-year terms of conditional discharge on counts III and IV, to run concurrently with the sentence on count II. Following the denial of his oral motion to reconsider the sentence, the defendant filed a timely notice of appeal."
The Court affirmed the defendant's convictions on counts II and III, of harassment through electronic communications, but reversed his conviction on count IV, of unlawful use of encryption.
No. 2-12-0270.
Filed March 29, 2013.
http://scholar.google.com/scholar_case?case=6280604159299146220&q=MySpace&hl=en&as_sdt=4,14,112,127,268,269,270,271,272,314,315,331,332,333,334,335,377,378&as_ylo=2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
STEVEN C. KUCHARSKI, Defendant-Appellant.
Appellate Court of Illinois, Second District.
http://scholar.google.com/scholar_case?case=6280604159299146220&q=MySpace&hl=en&as_sdt=4,14,112,127,268,269,270,271,272,314,315,331,332,333,334,335,377,378&as_ylo=2013
