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                               Appellate Court                          Date: 2018.01.30
                                                                        13:44:23 -06'00'




                  People v. Johnson, 2017 IL App (1st) 162876



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



District & No.    First District, First Division
                  Docket No. 1-16-2876



Filed             November 20, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 16-ACC-0121;
Review            the Hon. Gregory R. Ginex, Judge, presiding.



Judgment          Affirmed.


Counsel on        Amy Campanelli, Public Defender, of Chicago (Lynn Flanagan
Appeal            Wilson, Assistant Public Defender, of counsel), for appellant.

                  Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Annette C. Collins, and Mary L. Boland, Assistant State’s Attorneys,
                  of counsel), for the People.



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

¶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 phone.
¶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).



                                                  -2-
¶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 passcode, she is unable to purge herself
       of her contempt, an essential element of civil contempt.
¶ 12       As an initial matter, we note that defendant does not challenge the State’s right either to
       have her unlock her phone in open court or to provide the State with the passcode. As such, we
       do not address the propriety of the trial court’s decision that the items sought by the State were
       a “foregone conclusion” and not protected by the fifth amendment. See Fisher, 425 U.S. at 411
       (“The existence and location of the [items sought] are a foregone conclusion and the
       [defendant] adds little or nothing to the sum total of the Government’s information by
       conceding that he in fact has the [items]. Under these circumstances by enforcement of the
       summons no constitutional rights are touched. The question is not of testimony but of

                                                   -3-
       surrender.” (Internal quotation marks omitted.)). Our review, therefore, is limited only to
       whether the trial court correctly found defendant to be in contempt of court.
¶ 13       In this court, both parties state that the standard of review for contempt appeals is an abuse
       of discretion. See In re Marriage of O’Malley, 2016 IL App (1st) 151118, ¶ 25. We note,
       however, that our supreme court has previously indicated that “whether a party is guilty of
       contempt is a question of fact for the trial court, and *** a reviewing court will not disturb the
       finding unless it is against the manifest weight of the evidence or the record reflects an abuse of
       discretion.” In re Marriage of Logston, 103 Ill. 2d 266, 286-87 (1984); see also In re Marriage
       of Barile, 385 Ill. App. 3d 752, 759 n.3 (2008). That said, our decision, under either standard,
       remains the same.
¶ 14       A finding is against the manifest weight of the evidence if the opposite conclusion is
       evident or the finding itself is unreasonable, arbitrary, or not based on the evidence. Best v.
       Best, 223 Ill. 2d 342, 350 (2006). “A trial court abuses its discretion only when no reasonable
       person would take the view adopted by the trial court.” (Internal quotation marks omitted.)
       O’Malley, 2016 IL App (1st) 151118, ¶ 25.
¶ 15       Contempt of court is “ ‘any act which is calculated to embarrass, hinder, or obstruct a court
       in the administration of justice, or which is calculated to lessen its authority or dignity.’ ”
       People v. Penson, 197 Ill. App. 3d 941, 945 (1990) (quoting People v. Gholson, 412 Ill. 294,
       298 (1952)). The contempt is “civil” when, as here, the order is imposed to compel the
       contemnor to perform a particular act. In re Marriage of Betts, 200 Ill. App. 3d 26, 43-44
       (1990). The contempt is “direct” because the conduct occurred in the presence of the judge.
       See In re Marriage of Slingerland, 347 Ill. App. 3d 707, 711 (2004).
¶ 16       Direct civil contempt may be summarily adjudicated immediately upon occurrence of the
       contemptuous acts. See Betts, 200 Ill. App. 3d at 52. All persons charged with civil contempt,
       however, are entitled to minimal due process. Pancotto v. Mayes, 304 Ill. App. 3d 108, 112
       (1999) (citing Shillitani v. United States, 384 U.S. 364, 371 (1966)). Civil contempt orders
       must be in writing and provide an opportunity for the contemnor to purge herself of the
       contempt. Id. “Where an evaluation of credibility or the weight of the evidence was made by
       the circuit court, a court of review cannot substitute its judgment for that of the trier of fact
       unless the evidence is so unreasonable, improbable, or unsatisfactory as clearly to require a
       different conclusion.” People v. City of East St. Louis, 206 Ill. App. 3d 626, 639 (1990).
¶ 17       Here, we find that the trial court did not abuse its discretion in finding defendant in direct
       civil contempt, nor was the contempt finding against the manifest weight of the evidence.
       Defendant was ordered to unlock her phone after the court heard arguments on the State’s
       motion to compel. The court noted that the victims provided a description of defendant’s
       cellular phone and that a phone matching that description was found in her car. The State
       alleged that defendant twice accessed that phone to show the minors lewd images. When the
       court directed defendant to unlock her phone in open court, she informed the court that she did
       not “have” the passcode. After defense counsel suggested that defendant did not remember the
       passcode due to her time in prison, defendant amended her answer to indicate that she did not
       “have” the passcode because she could not remember it. The court stated that it did not believe
       defendant and held her in contempt. See In re Marriage of Smithson, 407 Ill. App. 3d 597, 607
       (2011) (“[T]he trial court is in a superior position to judge the credibility of the witnesses.”).
       Given this record, we cannot say that the court’s determination was so unreasonable,
       improbable, or unsatisfactory as to require a different conclusion.

                                                    -4-
¶ 18       Defendant nevertheless argues that the court’s order was deficient because the purge
       provision does not afford her any relief where it requires her to remember the passcode, which
       is something that she is incapable of doing.
¶ 19       Civil contempt proceedings have two fundamental attributes: (1) the contemnor must be
       capable of taking the action sought to be coerced and (2) no further contempt sanctions are
       imposed upon the contemnor’s compliance with the pertinent court order. Betts, 200 Ill. App.
       3d at 44. In other words, the contemnor must have an opportunity to purge herself of contempt
       by complying with the pertinent court order. If the contempt sanction is incarceration, the
       contemnor’s circumstances should be such that she may correctly be viewed as possessing the
       “keys to [her] cell.” Logston, 103 Ill. 2d at 289; see also Pryweller v. Pryweller, 218 Ill. App.
       3d 619, 633 (1991) (“Contempt will not lie when the alleged contemnor, through no fault of his
       own, is in a position where he cannot comply ***.”).
¶ 20       In order to prevail on this argument, however, defendant “has a burden of production” to
       show the impossibility of compliance. See United States v. Rylander, 460 U.S. 752, 757
       (1983); see also City of Mattoon v. Mentzer, 282 Ill. App. 3d 628, 636 (1996) (“[T]he
       contemnor bears the burden of demonstrating a legitimate inability to comply with the imposed
       terms.”). Defendant has not met that burden here.
¶ 21       The record shows that four months passed between the State’s initial filing of their motion
       to compel and defendant’s contemptuous conduct. During those four months, when defendant
       knew that the State wanted her cellular phone’s passcode, and that there was a possibility that
       she might be required to provide it to the State, she made no indication to either the State or the
       court that she no longer remembered her passcode. Rather, the first mention of the possibility
       that defendant might not remember her passcode was presented to the court, in a hypothetical,
       by her defense counsel during oral arguments on the State’s motion to compel. It was not until
       more than a month later, when the court directed defendant to unlock her phone in open court,
       that she first informed the court that she did not “have” the passcode. As pointed out by the
       court, it was defense counsel, and not defendant, who added that defendant “has indicated that
       she does not remember her passcode.” The court noted this fact when it corrected defense
       counsel as to what exactly defendant had initially told the court in response to the order. After
       carefully examining the record, we find that the trial court did not err in holding defendant in
       contempt or that its contempt order was in any way deficient.
¶ 22       In support of this conclusion, we note that, in her brief, defendant makes no showing that
       she can no longer remember the passcode. Instead, she simply states that “[i]t is very easy to
       forget a passcode that is no longer used regularly.” This statement, which is virtually identical
       to statements the trial court found to be incredible, is not sufficient to satisfy defendant’s
       burden to produce evidence that it is impossible for her to comply with the purge provision of
       her contempt order. See Citronelle-Mobile Gathering, Inc. v Watkins, 943 F.2d 1297, 1301
       (11th Cir. 1991) (The burden is on defendant to introduce evidence beyond a mere assertion of
       inability and to show that she has made “ ‘in good faith all reasonable efforts to comply.’ ”
       (quoting United States v. Ryan, 402 U.S. 530, 534 (1971))). Defendant has undertaken no
       effort to demonstrate that she is unable to comply with the court’s order. Accordingly, the trial
       court did not err in holding her in direct civil contempt.
¶ 23       For these reasons, we affirm the judgment of the circuit court of Cook County.

¶ 24      Affirmed.

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