THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARCHIE C. HOWARD, Defendant-Appellant.
Appeal No. 3-13-0959
APPELLATE COURT OF ILLINOIS THIRD DISTRICT
January 13, 2016
2016 IL App (3d) 130959
JUSTICE WRIGHT delivered the judgment of the court, with opinion. Justice Carter concurred in the judgment and opinion. Justice McDade dissented, with opinion.
Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. Circuit No. 12-CF-1177. Honorable Stephen Kouri and Honorable David Brown, Judges, Presiding.
¶ 1 The State charged defendant Archie C. Howard with the felony offense of being present in a school zone as a child sex offender. A police officer discovered defendant, a registered sex offender, sitting in a vehicle parked within 15 feet of school property while children were present and playing on the school playground. The court found defendant guilty and sentenced defendant to 30 months of probation. Defendant filed a timely notice of appeal challenging the court‘s decision finding him guilty of the charged offense and the constitutional vagueness of the statute. We affirm.
¶ 3 On December 4, 2012, the State filed an indictment alleging that, on or about November 8, 2012, defendant was “a sex offender, having been convicted of aggravated criminal sexual abuse in Peoria County case [No.] 03-CF-282, knowingly loitered within 500 feet of Irving School at 519 NE Glendale, Peoria, Illinois[,] while persons under the age of 18 years were present in that school building,” in violation of
¶ 4 The court held a bench trial on June 6, 2013. The State‘s first witness, Officer Chris Lenover, testified he was employed by the City of Peoria police department as a patrol officer on November 8, 2012. Officer Lenover was driving southbound on Glendale Avenue around 11:00 a.m. when he observed a silver Ford Taurus parked and “sitting partially in an intersection there at Hancock and Glendale.” Officer Lenover drove around the block, ran the vehicle‘s registration number through the computer, and discovered the vehicle was owned by a registered sex offender. The officer observed the driver sitting in the parked Taurus near Irving School, a Peoria public school, while 80 to 100 children were outside on the school grounds because it was a school day. The officer estimated the children were between the ages of 6 and 10 years old.
¶ 5 Officer Lenover activated his emergency lights, approached the vehicle, obtained the driver‘s license from the driver (defendant), and determined defendant was currently a registered sex offender. After approaching defendant‘s vehicle, Officer Lenover informed defendant that parking in the crosswalk and partially blocking the intersection constituted a traffic violation. Officer Lenover also asked defendant why he stopped at that location. Defendant responded by telling the officer he knew he was not supposed to be around schools or children because he was
¶ 6 After placing defendant in the squad car, Tumika Jordan (Jordan) came out of the school building and advised the officer that she asked defendant to drive her to Irving School so she could drop lunches off for her grandchildren. The officer asked Jordan if she knew defendant was a registered sex offender, and Jordan said, “No.”
¶ 7 The court took judicial notice of defendant‘s prior conviction in Peoria County case No. 03-CF-282, a Class 2 felony conviction for aggravated criminal sexual abuse entered on September 19, 2003. The State rested its case.
¶ 8 The defense‘s witness, Jordan, testified she met defendant a year ago and he occasionally provided rides for her since she did not have a car or a valid driver‘s license. On November 8, 2012, defendant picked Jordan up at her house and they went to the grocery store. Next, defendant drove Jordan to McDonald‘s restaurant and then drove her to Irving School to deliver the McDonald‘s lunches to her grandchildren. Jordan said she was inside the school building for approximately five minutes to drop off the lunches and, when she exited the building, she saw the police car by defendant‘s car. Jordan testified defendant‘s car was parked directly across the street from the school at a stop sign.
¶ 9 Defendant testified he initially went to the driver‘s license bureau to get his driver‘s license on November 8, 2012. Next, he picked up Jordan at her house and drove her to the grocery store, McDonald‘s restaurant, and Irving School where Jordan delivered the lunches for her grandchildren. As defendant waited for Jordan, he said he started filling out his bills while seated in his car. Defendant said he did not know how long Jordan expected to be in the school
¶ 10 Defendant said he observed the police car pass his vehicle and continue down the street. “[A] minute or so later,” defendant said the squad car turned around and “put his lights on me.” According to defendant, the officer asked him approximately four times what he was doing there and defendant testified, “I started telling him I was delivering the woman who was with me who was delivering food to the school to the grandkids.” The officer explained to defendant that he was a sex offender and was supposed to be 500 feet away from the school. Defendant said he explained to the officer that he drove Jordan to the school because she could not walk well. Defendant said he stopped at the intersection close to the school to make it easier for Jordan. Defendant said the officer then placed him under arrest. The defense rested its case.
¶ 11 The court took the matter under advisement. On June 24, 2013, the court issued a written order. In this order, the court found:
“1. It is alleged that the defendant committed the offense of being a child sex offender in a school zone. Pursuant to
720 ILCS 5/11-9.3(b) , ‘It is unlawful for a child sex offender to knowingly loiter within 500 feet of a school building or real property comprising any school while persons under the age of 18 are present in the building or on the grounds, unless the offender is a parent or guardian of a student attending the school . . .’ (emphasis added.)12. The statute defines ‘loitering’ as ‘standing, sitting idly, whether or not the person is in a vehicle, or remaining in or around school or public park property.’
720 ILCS 5/11-9.3(d)(11)(i) .
3. The defendant, having been previously convicted of aggravated criminal sexual abuse, is a child sex offender as set forth in the subject statute.
4. The defendant, having been in a vehicle within 500 feet of Irving School, is in direct violation of the statute. The reason given for his presence at the school has no merit in this case.
5. The defendant is not a parent or guardian of a student attending the school and therefore he does not meet the exception of the statute.”
The court found defendant guilty of the offense of being present in a school zone as a sex offender.
¶ 12 On July 17, 2013, defendant filed a “Motion for Judgment (N.O.V.)” claiming the court erred in finding that defendant knowingly loitered within 500 feet of a school building. Defendant contended that the facts did not prove he was “loitering” near the school property as required by statute, therefore, defendant asked the court to reverse its guilty finding.2 After hearing argument, the court denied the defense motion for judgment n.o.v.
¶ 13 On November 21, 2013, defendant received a sentence of 30 months’ probation, with “intensive probation” for the first 12 months, and the court ordered him to pay court costs and fees. The court also ordered defendant to cooperate with any type of treatment, counseling, or education that the probation department determined was appropriate. Defendant does not challenge any component of the sentence he received, but filed a timely notice of appeal challenging his conviction.
¶ 14 ANALYSIS
¶ 15 On appeal, defendant contends the State‘s evidence was insufficient to prove him guilty beyond a reasonable doubt of being present in a school zone as a child sex offender because his
¶ 16 I. Sufficiency of the Evidence
¶ 17 Generally, when a defendant challenges the sufficiency of the evidence regarding an element of the charged offense, a reviewing court must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Amigon, 239 Ill. 2d 71, 78 (2010); People v. Pollock, 202 Ill. 2d 189, 217 (2002). On review, this court will not set aside a criminal conviction unless the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of the defendant‘s guilt. Amigon, 239 Ill. 2d at 78; People v. Collins, 106 Ill. 2d 237, 261 (1985).
¶ 18 As defendant asserts, the material facts in this case are not in dispute. Thus, when the facts are undisputed, defendant correctly points out that the determination of the sufficiency of the evidence becomes a question of law subject to our de novo review. See People v. Smith, 191 Ill. 2d 408, 411 (2000). Defendant further submits that this case requires statutory interpretation, applying the undisputed facts to the language of the statute to determine whether the essential elements have been proven, which is a question of law that we review de novo. Amigon, 239 Ill. 2d at 84.
¶ 19 Here, defendant contends the trial court erred by finding him guilty of the offense of being present in a school zone as a child sex offender because the State‘s evidence did not
“It is unlawful for a child sex offender to knowingly loiter within 500 feet of a school building or real property comprising any school while persons under the age of 18 are present in the building or on the grounds, unless the offender is a parent or guardian of a student attending the school and the parent or guardian is: (i) attending a conference at the school with school personnel to discuss the progress of his or her child academically or socially, (ii) participating in child review conferences in which evaluation and placement decisions may be made with respect to his or her child regarding special education services, or (iii) attending conferences to discuss other student issues concerning his or her child such as retention and promotion and notifies the principal of the school of his or her presence at the school or has permission to be present from the superintendent or the school board or in the case of a private school from the principal.” (Emphases added.)
720 ILCS 5/11-9.3(b) (West 2010) .
In the case at bar, the State charged defendant with a violation of
¶ 20 Defendant asks this court to apply the definition of “idle” as defined in the Merriam-Webster Dictionary. Merriam-Webster Online Dictionary (2015); http://www.merriam-webster.com/dictionary/idle. However, since the statute includes a definition for loitering within
¶ 21 Defendant claimed he had his own legitimate purpose for remaining in his car within 15 feet of the school property. However, the State alleged defendant committed an act described as loitering and proved beyond a reasonable doubt defendant‘s conduct fell within the definition of loitering contained in
¶ 22 Whether the statute giving rise to the charge was unconstitutionally vague is addressed below. However, at this juncture we focus on whether the State‘s evidence satisfied each
¶ 23 In this case, it is undisputed that there were students under age 18 present on the school property; and defendant was within 500 feet of the school zone. Further, it is not disputed that defendant was neither a parent nor guardian of a student attending Irving School, and that defendant did not have prior permission to remain near school property after dropping off his friend. Therefore, the only contested element of the offense is whether defendant‘s conduct constituted loitering by “remaining” in the restricted area. We conclude the evidence presented to the court was sufficient to prove defendant loitered by remaining in the restricted zone for several minutes and the State‘s evidence proved defendant guilty of a violation of
¶ 24 Next, we consider whether the statute is too vague such that defendant‘s conviction should be set aside on constitutional grounds.
¶ 25 II. Constitutionality of the Statute
¶ 26 In this case, the State charged defendant, a sex offender, with loitering near school property in violation of
¶ 28
“ ‘Loiter’ means:
(i) Standing, sitting idly, whether or not the person is in a vehicle, or remaining in or around school or public park property.
(ii) Standing, sitting idly, whether or not the person is in a vehicle, or remaining in or around school or public park property, for the purpose of committing or attempting to commit a sex offense.
(iii) Entering or remaining in a building in or around school property, other than the offender‘s residence.”
720 ILCS 5/11-9.3(d)(11) (West 2010) .
¶ 29 In support of the argument that this statute is unconstitutionally vague, defendant points out that
¶ 30 Generally, statutes are presumed to be constitutional and defendant has the burden of rebutting that presumption and clearly establishing a constitutional violation. People v. Jones, 223 Ill. 2d 569, 595-96 (2006); People v. Einoder, 209 Ill. 2d 443, 450 (2004). If reasonably
¶ 31 In this case, defendant contends the United States Supreme Court case of City of Chicago v. Morales is controlling. City of Chicago v. Morales, 527 U.S. 41 (1999). The Chicago ordinance at issue in Morales prohibited a gang member from loitering in any public place with one or more person, and included a definition for “loiter” as “to remain in any one place with no apparent purpose.” (Internal quotation marks omitted.) Id. at 47. In contrast, the statute in this case prohibits loitering within a very specific restricted zone within 500 feet of school property and provides three examples of conduct that constitutes loitering as described by
¶ 32 A statute can be challenged as unconstitutionally vague in two ways: (1) on the statute‘s face, or (2) as the statute is applied to defendant‘s actions. Einoder, 209 Ill. 2d at 448 (citing People v. Greco, 204 Ill. 2d 400, 416 (2003)). Here, defendant contends
¶ 34 In order to succeed on a vagueness challenge as it applies to a defendant, a defendant must establish that the statute is vague as it applies to the conduct for which defendant is being prosecuted. Einoder, 209 Ill. 2d at 451. A statute violates due process as it applies to that person when it forbids the doing of an act in terms so vague that a person of normal intelligence must guess at its meaning and differ as to its application. People v. Stork, 305 Ill. App. 3d 714, 723 (1999).3
¶ 35 Regarding whether the language of
“It is unlawful for a child sex offender to knowingly loiter within 500 feet of a school building or real property comprising any school while persons under the age of 18 are present in the building or on the grounds, unless the offender is a parent or guardian of a student attending the school and the parent or guardian is: (i) attending a conference at the school with school personnel to discuss the progress of his or her
child academically or socially, (ii) participating in child review conferences in which evaluation and placement decisions may be made with respect to his or her child regarding special education services, or (iii) attending conferences to discuss other student issues concerning his or her child such as retention and promotion and notifies the principal of the school of his or her presence at the school or has permission to be present from the superintendent or the school board or in the case of a private school from the principal.” (Emphases added.) 720 ILCS 5/11-9.3(b) (West 2010) .
¶ 36 After careful review of the statutory language, we conclude the statutory scheme clearly delineates one very small restricted area, a 500-foot zone surrounding school property. This geographical restriction was not present in the ordinance considered in Morales (supra ¶ 31).
¶ 37 The Court in Morales was troubled by language in the Chicago ordinance focusing on a gang member‘s lack of “apparent” purpose to remain at any public location. Morales, 527 U.S. 41. However, the statute at issue in this appeal applies to a non-parent who remains in the
¶ 38 Unlike the ordinance at issue in Morales, sex offenders, who are not parents of a child in the school, are subject to the Illinois state statute at issue and are clearly put on notice that they may not hesitate when finding themselves within the 500-foot zone near a school. If a sex offender intends to stand, sit idly, or remain within the 500-foot zone, any one of these acts, regardless of a lawful purpose, are forbidden near schools.
¶ 39 Our conclusions are consistent with the rationale expressed by the Stork court, which held:
“Section 11-9.3 does not attempt to entirely prohibit child sex offenders from school zones, but it confines its prohibitions to those child sex offenders who are not parents or guardians of children at the school and those without permission to be present. The statute restricts child sex offenders from a readily identifiable area, such as the school building or a public way within 500 feet of school property. Furthermore, the statute is limited to those times when persons under the age of 18 are present within the school zone. We believe these items provide objective criteria in the statutory proscription that lack the potential for arbitrary and discriminatory enforcement.” Stork, 305 Ill. App. 3d at 723-24.
¶ 40 We recognize that the definitions of loitering set out in
¶ 41 Defendant was well aware of the restrictions on his ability to remain within 500 feet of the school while children were present. In fact, Officer Lenover testified that defendant told the officer he was a sex offender and knew he should not be present where he was parked. Accordingly, we conclude the statute is not unconstitutionally vague as it applies to defendant and his conduct.
¶ 42 CONCLUSION
¶ 43 For the foregoing reasons, we affirm the defendant‘s conviction for being present in a school zone as a sex offender.
¶ 44 Affirmed.
¶ 45 JUSTICE McDADE, dissenting.
¶ 46 The majority has affirmed the decision of the circuit court of Peoria County finding defendant guilty beyond a reasonable doubt of being a sex offender loitering in a school zone. I agree with the majority‘s finding that under two of the statute‘s definitions for loitering Howard was clearly not guilty. He was not “[s]tanding, sitting idly ***, or remaining ***, for the purpose of committing or attempting to commit a sex offense” or “[e]ntering or remaining in a building in or around school property.”
¶ 47 A reviewing court is duty-bound to “construe a statute in a manner that upholds its validity and constitutionality if it reasonably can be done.” People v. Graves, 207 Ill. 2d 478, 482 (2003). The remaining definition that the majority finds justifies defendant‘s conviction states that loitering is “[s]tanding, sitting idly, *** or remaining.”
¶ 48 To uphold the validity of this section of the statute, we would either need to (1) read into it the mens rea provided in the otherwise identical definition of