Illinois Official Reports

Appellate Court

People v. Johnson, 2021 IL App (5th) 190515

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

CHARLES MATTHEW JOHNSON III, Defendant-Appellant.

District & No. Fifth District 

No. 5-19-0515

Filed January 20, 2021

Decision Under 

Review

Appeal from the Circuit Court of Williamson County, No. 17-CF-104; 

the Hon. Brian D. Lewis, Judge, presiding.

Judgment Reversed and remanded with directions.

Counsel on

Appeal

Michael D. Burke, of Southern Illinois Law Center, of Carbondale, for 

appellant.

Brandon Zanotti, State’s Attorney, of Marion (Patrick Delfino, Patrick 

D. Daly, and Jennifer Camden, of State’s Attorneys Appellate 

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE CATES delivered the judgment of the court, with opinion.

Justices Welch and Wharton concurred in the judgment and opinion.
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OPINION

¶ 1 Following a bench trial, the trial court found the defendant not guilty of two counts of 

criminal sexual assault (720 ILCS 5/11-1.20(a)(2) (West 2016)) but found him guilty of one 

count of distributing harmful material to a minor (720 ILCS 5/11-21(b)(1)(A) (West 2016)), 

which the trial court enhanced to a Class 4 felony pursuant to section 11-21(g) of the Criminal 

Code of 2012 (720 ILCS 5/11-21(g) (West 2016)). The trial court sentenced the defendant to 

30 months of probation, with a condition that he serve 180 days in the county jail with no dayfor-day credit. The defendant did, however, receive credit for 68 days previously served in the 

county jail. The defendant appealed. For the following reasons, we vacate the defendant’s 

conviction and sentence, and remand with directions.

¶ 2 I. BACKGROUND

¶ 3 The State charged the defendant Charles Matthew Johnson, also known as “Bear,” with 

two counts of criminal sexual assault (720 ILCS 5/11-1.20(a)(2) (West 2016)) and one count 

of distributing harmful material to a minor1 (720 ILCS 5/11-21(b)(1)(A) (West 2016)). The 

charge of distributing harmful material to a minor alleged that “the defendant, *** with 

knowledge of the content thereof sent harmful material by telecommunications a photograph 

of his nude penis in a [sic] erect posture to R.D., a person he knew to be under 18, in violation 

of Chapter 720, Act 5, Section 11-21(b)(1)(A), Illinois Compiled Statutes.” 2 In the 

information, the State submitted that the offense of distributing harmful material to a minor 

was a Class 4 felony. 

¶ 4 Section 11-21 provides, in relevant part, as follows:

“(b) A person is guilty of distributing harmful material to a minor when he or she:

(1) knowingly sells, lends, distributes, exhibits to, depicts to, or gives away 

to a minor, knowing that the minor is under the age of 18 or failing to exercise 

reasonable care in ascertaining the person’s true age:

(A) any material which depicts nudity, sexual conduct or sadomasochistic abuse, or which contains explicit and detailed verbal 

descriptions or narrative accounts of sexual excitement, sexual conduct or 

sado-masochistic abuse, and which taken as a whole is harmful to minors[.]

* * *

1The information charges the offense as “sending harmful material to a child.” The statute, 

however, names the offense as “distributing harmful material to a minor.” See 720 ILCS 5/11-21(b) 

(West 2016). For clarity and consistency, we will refer to the statutory name of the offense rather than 

the offense as titled in the charging document.

2

Defendant was also charged in a separate proceeding, 17-CF-196, with three counts of criminal 

sexual assault (720 ILCS 5/11-1.20(a)(2) (West 2016)), based on allegations involving a different 

victim, D.S. By agreement of the parties, the charges in the present case, 17-CF-104, and 17-CF-196 

were tried jointly in a bench trial. Because this appeal involves only the defendant’s conviction for 

distributing harmful material to a minor, we will only discuss those portions of the defendant’s 

pleadings as they relate to that charge.
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(e) Distribution of harmful material in violation of this Section is a Class A 

misdemeanor. A second or subsequent offense is a Class 4 felony.

***

(g) A person over the age of 18 who fails to exercise reasonable care in ascertaining 

the true age of a minor, knowingly distributes to, or sends, or causes to be sent, or 

exhibits to, or offers to distribute, or exhibits any harmful material to a person that he 

or she believes is a minor is guilty of a Class A misdemeanor. If that person utilized a 

computer web camera, cellular telephone, or any other type of device to manufacture 

the harmful material, then each offense is a Class 4 felony.” 720 ILCS 5/11-

21(b)(1)(A), (e), (g) (West 2016).

¶ 5 At the bench trial, the State first presented its evidence regarding the charges in 17-CF104, related to the victim, R.D. The evidence revealed that the defendant and R.D. were cousins 

and part of a close-knit family. A few of the family members lived in an area where several 

trailer homes were grouped together and surrounded by a wooden fence, referred to as the 

“compound.” R.D. did not live at the compound, but sometimes visited there. The defendant 

lived alone in a trailer that was “a road or two over” from the compound.

¶ 6 R.D. testified that on or about April 23, 2016, when she was visiting her aunt’s trailer, the 

defendant had oral sex with R.D. by placing his penis in R.D.’s mouth. R.D. remembered this 

date because she saved the date in her cell phone with the defendant’s initials. R.D. further 

testified that no more than three weeks after the April 23 incident, during a family cookout, the 

defendant took R.D. to the defendant’s residence and engaged in vaginal intercourse with R.D.

¶ 7 During this time, R.D. was 16 and had known the defendant her entire life. R.D. stated that 

the defendant did not pay much attention to R.D. when she was younger, “but leading up to 

16, a little more.” R.D. testified that she had a cell phone with the defendant’s phone number 

saved under his name. R.D. further testified that the defendant had R.D.’s phone number and 

would send her text messages, photographs, and videos. R.D. kept some of the items she

received from the defendant in a locked file on R.D.’s cell phone. Sometime after the defendant 

began having sexual contact with R.D., the defendant sent pictures of his nude, erect penis 

being held in his left hand to R.D.’s cell phone. At trial, R.D. identified the defendant’s penis 

in two photographs. She recognized “his vein on the top and the distinctive of [sic] the head” 

and the defendant’s hand. R.D. testified that these photographs were kept in the locked file on 

her cell phone. The photographs depict a close-up image of the defendant’s nude, erect penis 

being held in his left hand and appear to be taken from the perspective of an individual 

photographing his own exposed genitalia. 

¶ 8 When the allegations that the defendant had sexual contact with R.D. came to light in early 

July 2016, R.D. gave her cell phone to her school’s principal, along with the passcode needed 

to unlock the phone. R.D. was later interviewed by Detective Karl Gusentine, who had R.D.’s 

cell phone. Detective Gusentine testified that he reviewed the contents of the locked file on 

R.D.’s cell phone with her, which contained several photographs. As they reviewed the 

photographs, Detective Gusentine took pictures of R.D.’s cell phone as it depicted each 

photograph and printed the pictures for R.D. to identify. When presented with the two 

photographs at issue, R.D. identified the defendant and placed her initials on the back of the 

pictures. Detective Gusentine testified that he later interviewed the defendant, who denied 

sending the photographs to R.D. Detective Gusentine admitted that law enforcement never 
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seized the defendant’s phone or executed a search warrant at his residence. Detective 

Gusentine also conceded that it was possible someone else took the photographs at issue. 

¶ 9 Following Detective Gusentine’s testimony, the State rested its case as to 17-CF-104.3 At 

the close of the prosecution’s case, the defendant filed a written motion for a finding of not 

guilty in which he sought a judgment of acquittal for all charges. 

¶ 10 In his motion, the defendant submitted that the State did not properly charge a Class 4 

felony violation of section 11-21(b)(1)(A) because the State did not allege that the charge of 

distributing harmful material to a minor was a second or subsequent offense. The defendant 

also argued that the State did not present sufficient evidence to establish that the defendant sent 

the photographs at issue to R.D. The State responded that section 11-21(g) contained a 

sentencing enhancement that elevated the offense to a Class 4 felony if a person over the age 

of 18 used an electronic device to “transmit”4 the picture. The State also believed that it had 

met its burden of proof for distributing harmful material to a minor.

¶ 11 The trial court adjourned for the day to consider the parties’ contentions. The next day, the 

trial court denied the defendant’s motion as to the one count of distributing harmful material 

to a minor in cause number 17-CF-104. The defense then made an oral motion to dismiss the 

charge of distributing harmful material to a minor. The defendant argued that he was charged 

under section 11-21(b)(1)(A) and not section 11-21(g), which the defendant contended was a 

separate offense with distinct elements that the State had not charged or proven. The State 

again countered that subsection (g) constituted a sentencing provision and the State asserted 

that it had provided notice and discovery that the State was alleging a cell phone was used in 

the commission of the offense. The trial court agreed with the State that subsection (g) was a 

sentencing provision. The defendant responded that section 11-21(e) was the penalty section 

and that the State had not presented evidence as to how the photographs were manufactured as 

required by subsection (g). The trial court noted that the “material was sent by 

telecommunications” and that the “key phrase” in subsection (g) was “any other type of device 

to manufacture the harmful material.” The trial court reasoned that, because the material was 

a photograph, a camera device must have been used, which would fall under the “any other 

type of device” language in subsection (g). The trial court took the defendant’s oral motion 

under advisement. The defendant presented no evidence, thus concluding the testimony portion 

of the trial. 

¶ 12 The following day, the trial court indicated that it had reviewed the jury instructions for 

distributing harmful material to a minor and that the instructions contained no language 

regarding subsection (g). The trial court determined that subsection (g) applied to sentencing 

and that the offense was properly charged as a Class 4 felony. Accordingly, the trial court 

found the defendant guilty of distributing harmful material to a minor, and the matter was set 

for sentencing.

¶ 13 Prior to sentencing, the defendant filed a posttrial motion for a judgment notwithstanding 

the verdict and for a new trial. In his motion, the defendant restated his position that section 

11-21(g) was a separate and distinct offense from section 11-21(b)(1)(A), that the State failed 

3

The State then presented evidence for the charges in 17-CF-196. In that case, the State presented 

evidence that the defendant had oral and vaginal intercourse with a separate victim, not R.D.

4

We note that the section 11-21(g) uses the word “manufacture” not “transmit.” See 720 ILCS 5/11-

21(g) (West 2016).
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to allege a violation of section 11-21(g) in the information, and that the State failed to present 

sufficient evidence to convict the defendant of distributing harmful material to a minor. At the 

sentencing hearing, the trial court denied the defendant’s posttrial motion and sentenced the 

defendant to 30 months of probation, which included a condition that the defendant serve 180 

days in the county jail. The sentencing order indicated that the defendant was to serve 180 

consecutive days with no day-for-day credit, but the defendant was to receive credit for 68 

days of jail time previously served. 

¶ 14 Following sentencing, the defendant filed a motion to correct sentence and apply good 

behavior credit. In his motion, the defendant contended that, pursuant to section 3 of the County 

Jail Good Behavior Allowance Act (730 ILCS 130/3 (West 2016)), he must receive day-forday credit because the defendant’s 180-day sentence was not a sentence of periodic 

imprisonment. The defendant requested that the trial court correct its sentence and allow him 

to receive day-for-day credit. At a hearing on the defendant’s motion, the trial court stated that 

the court had intended for the defendant to serve the full 180 days, less the 68 days already 

served, with no day-for-day credit. The trial court then modified the defendant’s sentence, by 

addendum, so that he would be released for one weekend per month until the defendant served 

the intended period of incarceration. The trial court stated that the periodic term of 

imprisonment would comply with section 3 and effectuate the trial court’s intent at sentencing. 

The addendum also reaffirmed that the defendant was to receive no day-for-day credit. This 

appeal followed.

¶ 15 II. ANALYSIS

¶ 16 On appeal, the defendant argues that the trial court incorrectly interpreted section 11-21(g) 

as a sentencing enhancement rather than a separate offense from section 11-21(b)(1)(A). Next, 

the defendant contends that the information was deficient in charging distributing harmful 

material to a minor. The defendant also contends that the State’s evidence at trial was 

insufficient to support a conviction. Finally, the defendant alleges that the trial court 

impermissibly increased the defendant’s sentence when the trial court modified the defendant’s 

sentence so that the defendant was required to serve the full 180 days in jail with no day-forday credit. We address each issue in turn.

¶ 17 A. Interpretation of 720 ILCS 5/11-21(g)

¶ 18 The defendant first challenges the trial court’s interpretation of section 11-21(g) as a 

sentencing enhancement provision rather than a separate offense. Questions of statutory 

interpretation, such as this one, are reviewed de novo. People v. Robinson, 172 Ill. 2d 452, 457 

(1996). When construing a statute, the reviewing court’s primary objective is to ascertain and 

give effect to the legislature’s intent. People v. Molnar, 222 Ill. 2d 495, 518 (2006). We begin 

our review with the statute’s language, which must be given its plain and ordinary meaning. 

Molnar, 222 Ill. 2d at 518. If the language of the statute is clear and unambiguous, we will 

apply the statute without resort to further aids of statutory construction. Molnar, 222 Ill. 2d at 

518-19. All provisions of the statute should be viewed as a whole. Molnar, 222 Ill. 2d at 519. 

Words and phrases should not be construed in isolation but must be interpreted in light of other 

relevant provisions of the statute. Molnar, 222 Ill. 2d at 519. If the statute’s language is 

ambiguous, however, we may consider interpretive aids, such as legislative history, to resolve 
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the ambiguity and determine the intent of the legislature. People v. Maggette, 195 Ill. 2d 336, 

348 (2001).

¶ 19 Generally, where a statute initially sets forth the elements of an offense and then provides 

sentencing classifications based on other factors, the enhancing factors do not create a new 

offense but serve only to enhance the punishment. See, e.g., People v. Van Schoyck, 232 Ill. 2d 

330, 338-39 (2009) (driving under the influence (DUI) statute only created one offense of DUI 

which may be enhanced to a felony based on certain factors); People v. Robinson, 232 Ill. 2d 

98, 112 (2008) (“involuntary manslaughter” and “involuntary manslaughter of a family or 

household member” are not separate crimes, but rather, one crime of involuntary manslaughter 

that is enhanced where the victim of the offense was a family or household member); People 

v. Green, 225 Ill. 2d 612, 619-20 (2007) (“robbery” and “robbery of a person 60 years of age 

or over” are not separate crimes, but rather, one crime of robbery that is enhanced depending 

upon the nature of the victim). In these cases, the enhancing factor was generally found in a 

penalty or sentencing provision of the statute. That is not, however, the case with section 11-

21(g). 

¶ 20 Our analysis begins with the language of section 11-21. The defendant was charged with a 

violation of section 11-21(b)(1)(A). Subsection (b) generally sets forth the nature and elements 

for the offense of distributing harmful material to a minor. 720 ILCS 5/11-21(b) (West 2016). 

In section 11-21(b)(1)(A), the State must prove that the individual distributing harmful material 

did so “knowing that the minor [was] under the age of 18 or fail[ed] to exercise reasonable 

care in ascertaining the person’s true age.” 720 ILCS 5/11-21(b)(1)(A) (West 2016). The 

penalty provision for a violation of this subsection is found in subsection (e), which provides 

that the offense is a Class A misdemeanor. A second or subsequent offense elevates the offense 

to a Class 4 felony. 720 ILCS 5/11-21(e) (West 2016). 

¶ 21 Subsection (f), although not at issue in this case, classifies the act of a minor obtaining 

harmful material by deception as a Class B misdemeanor. 720 ILCS 5/11-21(f) (West 2016). 

This subsection is a separate and distinct offense from distributing harmful material to a minor 

under subsection (b).

¶ 22 Subsection (g) of the statute generally states that it is a Class A misdemeanor for a person 

over the age of 18 to knowingly distribute harmful material to “a person that he or she believes

is a minor.” (Emphasis added.) 720 ILCS 5/11-21(g) (West 2016). In other words, contrary to 

subsection (b)(1)(A), there is no requirement, under subsection (g), that the individual knows 

the age of the person to whom the transmission is being made. Indeed, the distinction under 

subsection (g) is important, for example, where law enforcement officers may use social media 

or other online forums, pretending to be minors. Under subsection (g), as long as the individual 

transmitting the harmful material believes that he or she is sending the harmful material to a 

minor, a conviction under this subsection of the statute is a separate, Class A misdemeanor. 

Subsection (g) then provides that where the defendant utilized “a computer web camera, 

cellular telephone, or any other type of device to manufacture the harmful material,” the 

offense is a Class 4 felony. 720 ILCS 5/11-21(g) (West 2016). Because subsection (g) requires 

proof of certain facts not required under subsection (b), it appears that the legislature intended 

to create a separate offense for distributing harmful material to an individual believed to be a 

minor. 

¶ 23 Placing subsection (g) after the separate offense in subsection (f) further supports the 

conclusion that subsection (g) creates a separate offense. Therefore, in light of the plain 
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language of the statute, we conclude that subsection (g) sets forth a separate offense, not a 

sentencing enhancement, as argued by the State. 

¶ 24 Additionally, we note that the information specifically stated that, at the time the defendant 

sent the harmful material by telecommunications, he “knew” the person “to be under 18.” 

Moreover, the State made no allegation in the information that the defendant manufactured the 

harmful material sent to R.D. Thus, the State clearly used the language in subsection (b)(1)(A), 

not subsection (g). In light of the foregoing, the offense charged was a Class A misdemeanor 

under section 11-21(b)(1)(A), not a Class 4 felony.

¶ 25 B. Sufficiency of the Charging Document

¶ 26 Having determined that subsection 11-21(b)(1)(A) created a separate offense from 

subsection (g), we turn next to the defendant’s contention that the information, which charged 

the defendant with distributing harmful material to a minor, was deficient. The defendant raises 

three challenges to the criminal information. First, the defendant contends that the criminal 

information did not allege that the materials sent to R.D., when taken as a whole, were harmful. 

Next, the defendant argues that the State did not allege the defendant had a prior offense, as 

required by section 11-21(e), to elevate his offense to a Class 4 felony. Finally, the defendant 

submits that the State did not allege a violation of section 11-21(g)—that the defendant 

manufactured the harmful material using a computer web camera, cell phone, or any other type 

of device—to enhance the defendant’s offense to a Class 4 felony. 

¶ 27 A defendant in criminal proceedings has a fundamental right to be informed of the nature 

and cause of criminal accusations made against the defendant. People v. Carey, 2018 IL 

121371, ¶ 20. The charging document must state the name of the offense; cite the statutory 

provision alleged to have been violated; set forth the nature and elements of the offense 

charged; and state the date, county, and name of the accused, if known. 725 ILCS 5/111-3(a) 

(West 2016). We review the sufficiency of a charging document de novo. Carey, 2018 IL 

121371, ¶ 19.

¶ 28 The timing of a challenge to the charging document is significant in determining whether 

the defendant is entitled to have their conviction reversed, based on an error in the charging 

document. Carey, 2018 IL 121371, ¶ 21. If a challenge is made prior to trial in a pretrial 

motion, the charging document must strictly comply with the requirements set forth in section 

111-3(a). Carey, 2018 IL 121371, ¶ 21. By contrast, when a charging document is challenged 

for the first time on appeal, the defendant must show that he was prejudiced in the preparation 

of his defense. Carey, 2018 IL 121371, ¶ 22. In this instance, the charging document is 

sufficient if it notified the defendant of the precise offense charged, with enough specificity, 

to allow the defendant to prepare a defense and plead a resulting conviction as a bar to future 

prosecution arising from the same conduct. Carey, 2018 IL 121371, ¶ 22. Only where the 

defendant demonstrates prejudice will the mere fact that a charging document contains an 

incorrect citation to the criminal statute be grounds for dismissal of the conviction. People v. 

Melton, 282 Ill. App. 3d 408, 415 (1996). If the reviewing court cannot say that an error in the 

charging document inhibited the defendant in the preparation of his defense, the court cannot 

conclude that the defendant was prejudiced. Carey, 2018 IL 121371, ¶ 22. Here, the defendant 

did not formally challenge whether the State failed to allege that the material sent to R.D., 

when taken as a whole, was harmful. Instead, he makes this claim for the first time on appeal. 

Thus, the defendant must show that he was prejudiced.
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¶ 29 The State contends that the defendant has forfeited his challenge to the sufficiency of the 

information. The State asserts that the defendant failed to comply with Illinois Supreme Court 

Rule 341(h)(7) (eff. May 25, 2018) because the defendant has not supported his position with 

legal arguments or citations to authority. Rule 341(h)(7) provides that the defendant’s brief 

must include “[a]rgument, which shall contain the contentions of the appellant and the reasons 

therefor, with citation of the authorities and the pages of the record relied on.” Ill. S. Ct. R. 

341(h)(7) (eff. May 25, 2018). “ ‘ “[A] reviewing court is entitled to have the issues on appeal 

clearly defined with pertinent authority cited and a cohesive legal argument presented. The 

appellate court is not a depository in which the appellant may dump the burden of argument 

and research.” ’ ” People v. Macias, 2015 IL App (1st) 132039, ¶ 88 (quoting In re Marriage 

of Auriemma, 271 Ill. App. 3d 68, 72 (1994), quoting Thrall Car Manufacturing Co. v. 

Lindquist, 145 Ill. App. 3d 712, 719 (1986)).

¶ 30 Here, the defendant argues that the State failed to allege in the information that the 

materials sent to R.D., when taken as a whole, were harmful. The defendant does not, however, 

make any argument as to how he was prejudiced in preparing his defense or cite to any legal 

authority to support his claim. Consequently, the defendant has forfeited this argument.

¶ 31 Even if we were to consider the defendant’s claim, the record clearly shows that the 

defendant was not prejudiced in the preparation of his defense. The information clearly alleged 

that the defendant sent “harmful material” to R.D., a person he knew to be under the age of 18. 

The State also described the harmful material as a photograph of the defendant’s nude, erect 

penis. Thus, the defendant suffered no prejudice in the preparation of his defense, and his 

challenge to the sufficiency of the information is without merit.

¶ 32 The defendant next contends that the State did not allege that the defendant had a prior 

offense, as required by section 11-21(e), to elevate his offense to a Class 4 felony. The 

defendant also complains that the State did not allege a violation of section 11-21(g)—that the 

defendant manufactured the harmful material using a computer web camera, cell phone, or any 

other type of device—to enhance the defendant’s offense to a Class 4 felony. Inasmuch as we 

have determined that the information charged only the Class A misdemeanor under section 11-

21(b)(1)(A), these arguments are moot.

¶ 33 C. Sufficiency of the Evidence

¶ 34 The defendant also argues that the State failed to produce sufficient evidence to support a 

conviction for distributing harmful material to a minor. In reviewing a challenge to the 

sufficiency of the evidence, it is not the function of the reviewing court to retry the defendant. 

People v. Sutherland, 223 Ill. 2d 187, 242 (2006). Rather, the relevant question is whether, 

after viewing the evidence in a light most favorable to the State, any rational trier of fact could 

have found the essential elements of the offense beyond a reasonable doubt. Sutherland, 223 

Ill. 2d at 242. It is the trier of fact’s responsibility to determine the credibility of witnesses and 

the weight given to their testimony, to resolve conflicts or inconsistencies in the evidence, and 

to draw all reasonable inferences from the evidence. Sutherland, 223 Ill. 2d at 242. 

Circumstantial evidence is sufficient to sustain a conviction, so long as the elements of the 

offense have been proven beyond a reasonable doubt. Sutherland, 223 Ill. 2d at 242-43. “ ‘The 

trier of fact need not, however, be satisfied beyond a reasonable doubt as to each link in the 

chain of circumstances. It is sufficient if all of the evidence taken together satisfies the trier of 
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fact beyond a reasonable doubt of the defendant’s guilt.’ ” Sutherland, 223 Ill. 2d at 242 

(quoting People v. Hall, 194 Ill. 2d 305, 330 (2000)).

¶ 35 To sustain a conviction for distributing harmful material to a minor, the State was required 

to prove that the defendant knowingly sent harmful material to R.D., who was a minor under 

the age of 18, and that the defendant knew R.D. was under the age of 18 or failed to exercise 

reasonable care in ascertaining her true age. See 720 ILCS 5/11-21(b)(1)(A) (West 2016). 

Here, a rational trier of fact could have found that the State presented sufficient evidence to 

find the defendant guilty of distributing harmful material to a minor. There is no dispute that 

R.D. was a minor at the time of the offense or that the defendant was over the age of 18. The 

evidence showed that the defendant grew up living among R.D.’s family before she was born, 

that the defendant and R.D. were cousins, and that their family was close knit. R.D. also 

testified that she knew the defendant her entire life. Based on this evidence, a reasonable trier 

of fact could have determined that the defendant knew R.D. was a minor or failed to exercise 

reasonable care in ascertaining her true age. 

¶ 36 As to the harmful material R.D. received on her cell phone, a photograph of an adult male’s 

nude, erect penis falls squarely within the statutory definition of material that would be 

considered “harmful to minors.”5 R.D. testified that the photographs were sent to her from the 

contact in her phone under the defendant’s name. R.D. also testified that she had previously 

received text messages, photographs, and videos on her phone from the defendant. The 

defendant’s prior use of a phone number is compelling circumstantial evidence that the 

defendant sent R.D. the pictures at issue. See People v. Walker, 2016 IL App (2d) 140566, 

¶¶ 11-12. 

¶ 37 Therefore, the evidence presented at trial was sufficient to convict the defendant of 

distributing harmful material as a Class A misdemeanor under section 11-21(b)(1)(A), the 

alleged statutory violation charged in the information. Under Illinois Supreme Court Rule 

615(b)(3) (eff. Jan. 1, 1967), a “reviewing court may *** reduce the degree of the offense of 

which the [defendant] was convicted.” As a result, we reduce the defendant’s conviction from 

a Class 4 felony to a Class A misdemeanor and will remand for resentencing on the Class A 

misdemeanor.

¶ 38 D. Modification of the Defendant’s Sentence

¶ 39 Finally, the defendant asks this court to vacate the addendum to the sentencing order, which 

the defendant claims impermissibly increased the amount of jail time the defendant was 

required to serve. The State submits that this issue is moot as the defendant, although still on 

probation, is no longer incarcerated. An issue is moot when no actual controversy exists or 

where events occur that render it impossible for the reviewing court to grant effectual relief. 

People v. Lynn, 102 Ill. 2d 267, 272 (1984). Here, the record shows that the defendant 

completed his 180-day jail term on March 2, 2020. Because the defendant has completed his 

5

“ ‘Harmful to minors’ means that quality of any description or representation, in whatever form, 

of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, when, taken as a whole, it 

(i) predominately appeals to the prurient interest in sex of minors, (ii) is patently offensive to prevailing 

standards in the adult community in the State as a whole with respect to what is suitable material for 

minors, and (iii) lacks serious literary, artistic, political, or scientific value for minors.” 720 ILCS 5/11-

21(a) (West 2016).
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period of incarceration and has not challenged any other portion of his sentence, we are unable 

to grant any sort of effectual relief, and the defendant’s sentencing challenge is moot. People 

v. Funches, 2019 IL App (3d) 160644, ¶ 8.

¶ 40 III. CONCLUSION

¶ 41 For the foregoing reasons, we vacate the defendant’s Class 4 felony conviction and order 

that the trial court enter judgment on its verdict as a Class A misdemeanor. The cause is 

remanded for resentencing on the Class A misdemeanor.

¶ 42 Reversed and remanded with directions.