*1 enter the taking was limited to day the children to care. simply, nothing Stated implicates legislature’s this case concern a party to a dispute domestic charged would be under the home- invasion statute for conduct committed in his Oakley, own home. See Thus, Ill. 2d at 479. defendant committed home invasion when he entered Allen’s apartment argument and his necessarily fails.
III. CONCLUSION stated, For the reasons County Lake circuit court’s judgment is affirmed.
Affirmed. O’MALLEY,JJ.,
HUTCHINSON and concur. ILLINOIS, THE PEOPLE OF THE Plaintiff-Appellee, STATE OF v. JOHN J. DAVIT, Defendant-Appellant.
Second District No. 2 - 04-0931
Opinion filed June *2 J.,
CALLUM, dissenting. DeWitt, Weller, Lilien, Ap- M. Joseph and Kim all of State G. Thomas A. Office, Elgin, pellate appellant. Defender’s of (Martin Birkett, Attorney, Joseph of P. Moltz and Mar E. State’s Wheaton Stevens, Office, Attorneys of Appellate shall M. both of State’s Prosecutor’s counsel), People. for the court: opinion
JUSTICE delivered the HUTCHINSON trial, defendant, Davit, a John J. convicted of Following jury (720 (West 2002)) resisting violating ILCS and peace a officer 5/31—1 2002)). (720 (West protection an He was ILCS discharge one-year sentenced to concurrent conditional and terms of service, hours’ public hours of with an additional sentence resisting-a-peace-officer periodic imprisonment imposed on the convic- appeal, proved guilty tion. On defendant he contends that beyond violating protection. the order of reasonable doubt of We agree of and sentence for with defendant and reverse his conviction the order of trial, copy
At into evidence a certified State introduced County Page Du on protection entered the circuit court of 5, 5, 2002, The order of June and in effect until June contacts with having defendant from certain enumerated children, Davit, Cathy his and their three minor spouse, former Rebecca, had been Jessica, and The order of Alexander. marriage part entered as of defendant dissolution of protection and had been on defendant. The order proceeding served residence and “[Cathy] granted possession stated: exclusive of premises [defendant] shall not enter or remain in the household Lane, Lisle, located at: 1923 Hillside IL.” The order of required further defendant to “stay away” Cathy and the minor children, except permitted to “exercise visitation provided as Judgment of Marriage.” Cathy Dissolution judgment dissolution delineated the times that defendant children, could visit his but it did not indicate the location where the picked up children would be or returned.
Cathy that, May Davit testified approximately 7:30 p.m., she was inside the house located at 1923 Hillside Lane. At this time, standing she observed yard daughter and their standing driveway. defendant, Jessica on the Soon observing after Cathy police pull up Jessica, saw a car to the house. She called out to instructing Cathy her come inside the house. Because believed that encounter police between defendant and the be officer would confrontational, house, she escorted Jessica to the rear of the out sight of police later, defendant and the officer. Five police minutes officer came Cathy’s Cathy door and tendered copy protection to the officer. incident, that,
Officer Bowes testified on the night he was initially dispatched Surrey Ridge Park in Lemont. The officer soon defendant, learned that encounters, whom he prior might knew from at Cathy’s Lisle, be residence in and he went to that ar- Upon address. *3 riving Cathy’s house, Bowes, uniform, at who was in saw defendant standing driveway the with Jessica. Bowes testified that he believed that defendant was in protection, ap- violation the order of and he proached defendant and advised him that he was under arrest. angry, Defendant became and he push past tried to Bowes and walk ensued, toward his own vehicle. A struggle and defendant was eventu- ally handcuffed. 22, 2003, testified night May
Defendant that on the he and Jes- practice Walgreens sica went to soccer purchase and then to to Among and they bought Gatorade some “trinkets.” the items were for After bicycle. leaving Walgreens, reflectors Jessica’s defendant took house, Jessica to car parking his on the street. Because Jes- things inside, balls, had a gym bag, sica lot of to take such as her and purchased store, the “trinkets” helped carry at the defendant Jessica belongings her to the front of Cathy’s door house. Defendant then of- put bike, lying fered to the reflectors on Jessica’s which on was the driveway. sitting driveway As defendant and Jessica were on the reflectors, pulled the a installing police up officer to the house. Because face, the had a “mean look” on told to officer his defendant Jessica go gather approached her stuff and inside the house. Defendant then he there. The advised inquired why the officer and was officer
525 told arrest, never but officer he under that was defendant he wrestled denied that arrest. Defendant the reason defendant officer from handcuff- prevent to and that he tried officer ing him. he aware of cross-examination, that defendant admitted
On he did not believe that defendant his he had taken explaining violating protection, the order many occasions brought her home on practice and daughter to soccer 22, 2003. preceding May in the weeks resisting peace officer a guilty of both jury found defendant for a new moved and defendant violating protection,
and an order This defendant. trial denied the motion sentenced trial. The court timely appeal followed. guilty not proved he was
On defendant contends that appeal, violating Specifi- of protection. beyond a reasonable doubt of him protection prohibited claims that the order of cally, defendant Cathy’s house and that or inside only any point at entered house evidence failed to establish that he Instead, the evidence May 22, he house all times. remained outside the established evidence, sufficiency challenge to the we When faced with a light most whether, viewing the evidence in favorable inquire after State, have found the essential any to the rational trier of fact could People v. Eh proved a reasonable doubt. beyond elements of the crime 192, if lert, only reverse a Ill. 2d We will conviction unreasonable, justify as improbable, unsatisfactory evidence is so guilt. People Taylor, a v. 349 Ill. reasonable doubt of the defendant’s App. 3d if:
One the offense violating commits (1) in a prohibited by he or she commits an act that was trial court the Il pursuant provisions valid order of entered (750 Act) (the Act of 1986 Domestic Violence linois Domestic Violence (West (2) 2002)), and such act occurs after the offender ILCS 60/214 of the order or otherwise has has been served notice the contents acquired knowledge of contents the order. 720 ILCS (West (2002). The 2002); Stiles, of offense, liability is not a strict fense of act, reus, prove guilty and the actus required State is both *4 956-57; mind. rea, guilty Stiles, App. Ill. 3d at v. mens 334 (2001). Mandic, 544, 325 Ill. 3d 549-50 App. case, undisputed is that defendant had been the instant it protection entered
served and had notice of the contents of the order of against proved the question appeal him. The on whether State 526
beyond a reasonable doubt that intentionally defendant committed prohibited act by the order of The portion of the of protection charged that violating prohibited defendant or entering remaining from “in the household of at: Lane, located 1923 Hillside argues Lisle.” Defendant plain that the meaning of this language was that he prohibited him from enter- ing inside house. Defendant further that order did not him walking upon onto the lot which the house stood. Defendant notes that the order of specifi- cally granted him right children, to exercise visitation with his and he argues that his presence Cathy’s yard necessary so that he pick up drop could responds off his children. The State that the plain language of the order of protection prohibited him from house, as upon well as the lot which the house stood.
Initially, we must appropriate determine the rule construction governs analysis our The instant case. State asserts that violating contempt is a form of criminal application strict-statutory-construction principles interpret of protection Instead, would be improper. the State suggests application rule applied contempt of construction in proceedings; applying construction, this rule of interpret we would language of the trial court’s order considering context which the order was issued and the purpose for which the order was requested. Lutz, 59, App. Doe v. 253 Ill. 3d 64 as State whether, serts that appropriate inquiry under entirety circumstances, the knowledge defendant had actual or constructive what conduct was and whether the court’s order “was so Doe, 65; uncertain as to make it incomprehensible.” App. 253 Ill. 3d at Collins, Kaeding 919, see v.
In presenting recognize this argument, the State fails to that this did a contempt proceeding case not arise from against initiated appeal defendant and that this a judgment finding was not filed from in contempt. Although protection provided “[a]ny court,” contempt [the] wilful violation of order is the State did not choose to seek to have defendant contempt found court. Instead, separate the State proceeding, charging initiated criminal defendant with the misdemeanor offense an order (see (West 2002)). proceedings 720 ILCS While contempt process rights ap criminal governed by are the same due (Luttrell Panozzo, plicable proceedings (1993)), proceedings arise are nonetheless distinct and (In G.B., government out of different branches re 88 Ill. 2d (1981)).
527 alleging the proceeding a criminal initiated case, In this the State Section legislature. the by enacted statute of a criminal violation the of- one commits provides of 1961 the Criminal Code 12—30 of she commits “[h]e if or of an of violation fense (West 2002). ILCS by a 720 prohibited court.” act which was trial reference a incorporates by language, the statute Through this essence, the trial court’s the offense. In as an element of court’s order offense of language defining the statutory part becomes a order violating Indeed, the trial court’s we note that protection. 214 of the language from section upon is patterned order here may be Act, remedies that enumerates the Domestic Violence which 60/214(b)(2) (West 750 ILCS See included in an order 2002) posses- exclusive (authorizing grant petitioner court to the trial entering or remain- “from prohibit respondent and to sion of residence in Accordingly, petitioner”). the or household of ing any in residence the apply we will protection, of the order of construing language the interpretation govern the strict-statutory-construction principles that enactments, apply principles than the legislative rather of all govern proceedings. contempt construe the strict-statutory-construction principles, we
Applying language enforcing plain effect its protection by giving order of to Jameson, 162 287-88 the written. v. Ill. order as reason in the order of language if the contained ambiguous. People it is interpreted ways, in different ably can be two context, Wanke, In a when 807 App. enforce, ambiguous language to reviewing presented the is court Under Wanke, 311 3d at 807. lenity applied. Ill. principle strictly must be language in the order of principle, this Wanke, 3d at 807. construed in of the accused. favor above, protection provided As noted the trial court’s premises in not enter or remain the household “shall added.) Drive, precise The (Emphasis Hillside Lisle.” located at: 1923 immediately apparent to meaning emphasized language is not this in the order does us. Reference the definitions of the terms used is defined as “to clarify meaning. The “enter” the order’s word (8th 2004). word ed. go Dictionary come or into.” Black’s Law group or “a “family living together” defined as a “household” is Dictionary roof.” Black’s Law people who dwell under the same (8th 2004). as “a house or build- “premises” defined ed. The word (8th Dictionary 1219 ed. along grounds.” Black’s ing, with its Law 2004). definitions, the literal by parties, these applying As noted that defendant was language in the order was meaning of Such an going family Cathy’s property. prohibited from into however, surely the trial court. interpretation, not intended already noted, parties As interpretations offer two different language argues order. Defendant that the order him from entering Cathy’s into house on the located at 1923 Hillside Drive. argues Defendant presence upon Cathy’s thus that his driveway yard question on the date did not constitute viola- tion of protection, because he did not enter into that, house. using “household,” Defendant the word trial 60/214(b)(2) court intended “house” or “residence.” See 750ILCS (West 2002) (authorizing prohibit the trial court respondent “from or any residence household of peti- tioner”). argues that, Defendant further if the trial had court intended his presence property, real it would have *6 prohibited him entering from “onto” the than rather from entering remaining or “in premises.” the household of The State prohibited that the order entering Cathy’s into upon house or the real property upon which her house stood. The suggests State possibility that the use of the word “of’ between the words “premises” “household” and drafting was a error and that the trial prohibit court intended to entering defendant from or remain- ing “in or the household premises” located at 1923 Hillside Drive. language the plain order,
Given
say
we cannot
that the
interpretation presented by
party
either
is
already
unreasonable. As
noted, if
protection reasonably
interpreted
can
in
be
two
ways,
different
it is ambiguous and must
in
be construed
favor of the
Wanke,
Here,
accused.
Here, as discussed singular convey not comprehend and did or easy to understand circumstances, “justice Under such meaning to all individuals. lenity. Applying the doctrine application of humanity” compel order interpret the case, we must the instant lenity doctrine of entry only and conclude that in defendant’s favor presence upon and did not into house Cathy’s driveway yard. or protection ambiguity in the order of any suggests
The dissent at Ill. 532. as a whole. 366 the order is read “vanishes” when reading of the entire suggests that a dissent “prohibit[ ] defendant’s court intended to that the trial demonstrates entry The dissent also 3d at 532. land.” 366 Ill. onto in which the may gleaned from the context posits clarity be record, entered, parts of other as well as consideration motions, decided. See 366 pleadings, and issues be including the be interpretation aids to would Although perhaps such App. 3d the trial court to determine whether upon useful had we called been they have contempt proceeding, in a properly enforced its own order beyond a reasonable proved whether the State place determining no guilty of a independent finder of fact that doubt to portion of the order of by violating offense “in household of prohibiting him from jury to trial, the court did not instruct the premises.” At the close of to determine whether defendant the entire order of consider materi without the benefit other jury had violated it. The was also motions, file, pleadings and in the court such as appearing als *7 Instead, simply the trial court meaning of the order. determine of that, charge to the criminal of violation jury instructed the sustain to that obligated prove protection, an order of the State was Cathy of in the household of “defendant entered remained reasons, Lisle, we Lane, IL.” For these Davit located 1923 Hillside beyond look disagree analysis, and we will not with the dissent’s that protection of the order of language specific provision of the violating. charged defendant noted, lenity, must already the doctrine of we applying
As of defendant. language protection the order of favor interpret of that the order have concluded Applying interpretation, such an we and did not prohibited entry Cathy’s into house only yard. Because the presence upon Cathy’s driveway or defendant’s into defendant entered present any that State failed to evidence unsatisfactory as was so Cathy’s house, conclude that the evidence we Taylor, 349 Ill. guilt. of See justify a reasonable doubt defendant’s App. 3d at Accordingly, we reverse defendant’s conviction of and sentence violating for the offense an order of
In holding, reject so we the State’s upon provision reliance protection required that defendant to “stay away” from Cathy and the minor children. The State that “ap defendant’s proach to the house” as he off dropped daughter his constituted a “stay violation of the away” provision. reject argument We this First, two reasons. charged defendant was not with a violation of the “stay away” provision protection, of the order of and the jury was not Second, instructed on this theory. “stay away” provision protection order of contained an exception permitted defendant to exercise visitation with his minor as provided children for in the trial, judgment. dissolution At testified that he believed that it permissible for him to go property purpose onto the for the of picking up dropping off during his children visitation. Defendant testified picking up that he had daughter been his house this manner on a weekly basis and that “it’s never been a problem.” light circumstances, of these even if defendant’s conduct constituted a “stay away” violation of the provision, we believe that the State difficulty proving would have the necessary Mandic, mens rea to obtain a conviction. See 3d at 550 (noting that prove the State must that defendant intended to violate “stay away” provision protection). of an order of
We also note that our decision reverse defendant’s conviction violating presence is not altered language in “[g]rant possession the order that exclusive residence or household shall forbidding trespass constitute notice land.” The purpose language this is to satisfy the element of “notice” contained within the offense of trespass to real 3(a)(2) (West 2002) property. See 720 ILCS (prohibiting entry 5/21 — another, “upon the land receiving, prior entry, after to such notice forbidden”). occupant Therefore, from the owner or entry such had charge the State chosen to defendant with the offense of criminal trespass to real property, language this in the order of would proven have the element of notice. defendant was not charged Instead, trespass with the offense of criminal to land. he was charged with the offense of entry his “in the household of at: premises located Lane, already discussed, As
Hillside Lisle.” we do not believe that this language unambiguously prohibited entry onto the land upon which house stood.
Finally, language protec- we note that the contained *8 prohibiting tion “in the a form order circulated within contained premises” household of light In of our conclusion County. Page Du by the circuit clerk of amending the ambiguous, form order is language contained this enforcement confusion law similar to avoid form order advisable in future. parties and other relating to his of error no contention defendant raises Because (West (720 2002)), ILCS a officer resisting peace
conviction of 5/31—1 that offense. as to his conviction and sentence we affirm Du court of of the circuit reasons, judgment foregoing For part. in part and reversed in Page County affirmed part. in in and reversed part Affirmed McLAREN,J., concurs. CALLUM, dissenting:
JUSTICE First, it view, applies errors. my majority commits two of what is interpretation statutory construction to principles of actually apply, if Second, principles those clearly not a statute. even lenity ignoring principle of while summarily invokes the majority protec- establish that convincingly other principles Ac- entry Cathy’s land. onto was intended to tion dissent. cordingly, respectfully I obvious, a statute. I court order is not stating
At the risk a protec- deny that, defining not the offense of do (720 ILCS tion, of 1961 12—30 of the Criminal Code section (West 2002)) all, order; prohibiting to a court after reference makes order referring to a court would of court without the violation mean, however, that the court does a difficult task indeed. This not be rules of subject to the thereby part of the statute order becomes statutory construction. out, own rules subject order is its points the State a court
As a violation of a there has been determining “In whether construction. context reference to the order, construed with the order must be court requested.” it purpose for which was in which it was issued and the “is to be Lutz, 59, 64 The order Doe v. parts taking into consideration other interpreted entirety, in its court, and the the motions before the record, including pleadings, should be construed [Citations.] [The] order issues to be decided. intent of the court.” to the discernable reasonably give so as to effect People Ryan, because apply do not here these rules majority asserts that was found but rather contempt of court found
violation of section I 12—30. do not understand the difference that
makes. No matter the proceedings, nature of the the issue is the interpretation order, of a court not a I Accordingly, statute. submit that we should invoke the rules that apply interpretation to the aof order, court not those that apply interpretation to the aof statute. said, That the distinction makes little difference in this instance. objective primary interpreting anything is to the ascertain (2005) Collins, intent of its creator. See People 206, v. 214 Ill. 2d 214 order). (court (statute); Ryan, Ill. order, 3d App. noted, 259 at 613 As when thing the is a court we must consider it in entirety its and in context to However, determine the intent of the thing court. when the statute, is a provision and when ambiguous, the at hand is we must do is, the same. That pari we must read in parts materia all the the scheme, statutory to ascertain legislature the intent of the and thereby injustice. Anderson, avoid (1992). 486, See Kousins v. App. 229 Ill. 3d 492 that,
I deny do not purposes, least for our provision the here is ambiguous.1 Thus, whether interpret we this court order as a court order statute, or as a we must determine the reading court’s intent the order as a whole. order, reading
In whole, the as a there is no the court doubt that prohibited entry defendant’s granted onto land. The order Cathy the possession residence, exclusive and it stated the that grant possession of such forbidding “constituted] trespass notice land.” I charged trespass understand that defendant was not Nevertheless, land. the order informed entry defendant that his onto Thus, the premises” land was forbidden. while “household of ambiguous as to whether prohibited the house, land, both, the ambiguity that vanishes when the read aas whole. Because the order otherwise entry land, reasonably onto the interpreted could not have premises” “household of entry to allow his onto the land. Such an interpretation clearly the contravenes court’s intent. say, majority
Needless to the a does read the order as whole. Instead, it premises” reads “household of in a vacuum and summarily applies principle lenity. that, point, ques- I first note on this say
1 I purposes” suspicion “at least for our I because share the State’s phrase merely premises” drafting that I “household a error. am highly inclined to think that the form order used here was intended to state premises,” phrase “household or which is a common orders See, e.g., Priest, 297 Ill. 3d I do not propose my personal suspicion substitute rules of construc established tion, join majority’s I suggestion the circuit clerk amend the form to reflect whatever was intended. a great matter apply might we rules of construction
tion of which aof interpretation to the deal; certainly applies although lenity interpretation of necessarily apply to statute, it does not (2005) Powell, In court order. re Detention Cf. nature”). is “civil application to statute (questioning its here, applies because it either However, assuming apply it does invokes majority properly because the to court orders or generally that this statutes, settled “[i]t is well of criminal of construction rules *** as to rigidly ‘so a statute a court to construe require rule does not ” 142, quot 2d at Powell, 217 Ill. legislature.’ the intent of the defeat view, my 889, 903 ing Washington, People v. lenient reflexively adopts the It majority exactly does this. application premises” when “household of interpretation must resolve construction, namely the rule that we principles other whole, convincingly establish reading as a ambiguity by opposite intent. *10 that he Here, land. He asserted defendant entered onto belongings the end of a visita- many her did so to return Jessica and protec- unreasonable, arguably the order Doing tion. so was not did purpose. he more entry allowed his for that limited tion to sit in testimony, to his he then decided According than that. own bicycle. light driveway, putting reflectors on Jessica’s protection, proper interpretation I what consider intentionally to determine jury was entitled it. violated
I affirm defendant’s conviction would ILLINOIS, Plaintiff-Appellee, JAVAR THE STATE OF THE PEOPLE OF HOLLINS, Defendant-Appellant. 3 - 04-0761
Third District No.
Opinion filed June