*1 the jury would have been entitled to disbelieve Gilbert’s testimony. Also, overwhelming because evidence was so inconsistent behest, statements were made at the defendant’s do not we believe that the result at trial if would have been different would jury have been allowed to consider those statements substantively. There- fore, we hold that the defendant suffered no prejudice. Because it is finding, unnecessary for us to decide whether or not defense counsel’s performance actually deficient.
We could find no other cases in this jurisdiction involving drug-induced statute, homicide and no issue was raised the parties as to the validity that statute. reasons,
For all above the decision of the circuit court of Will County affirmed.
Affirmed. HAASE, JJ.,
McCUSKEY concur. ILLINOIS, THE PEOPLE OF THE STATE Plaintiff-Appellee, OF JOYCE, Defendant-Appellant. MICHAEL S.
Second District No. 2 — 90—0229 4, 1992. Opinion September filed *3 BOWMAN, J., dissenting. Lilien, Joseph
G. Weller and Thomas A. Appellate both of State De- Office, Elgin, appellant. fender’s of Johnson,
Gary Geneva, Martin, Attorney, Craig V. State’s T. Cutler, Chapman Chicago (William Browers, Breslin, & L. John X. Judith Hoffman, Kelly, Jay Z. Paul Attorneys Appellate all of State’s Prosecu- Office, counsel), tor’s People. for the
PRESIDING JUSTICE INGLIS delivered the opinion court:
Defendant, Michael Joyce, charged by indictment with the of fense of child (Ill. 5(b)(10)). abduction Rev. Stat. ch. par. 10— Following a bench trial in the circuit court of Kane County, was convicted of child abduction and sentenced to a term 30-month probation, first months to probation. be intensive the following raises issues on sec appeal: (1) whether tion 5(bX10)of the Criminal of 1961 (Code) (Ill. Code Rev. Stat. 10— ch. par. 5(b)(10))is unconstitutionally vague; (2) whether the indictment failed set forth the nature and elements adequately of the charged offense; (3) language whether the of the child attempt abduction statute violates the of due principles process propor tionate penalties; (4) whether defendant was proved guilty beyond doubt; reasonable (5) whether the trial court relied on an unconstitu *4 tional presumption statute; set forth in the whether the trial (6) court’s denial of a defense motion for a continuance to an obtain eval uation of defendant’s wаs an note sanity abuse discretion. We defendant raised similar arguments, including challenges to the constitutionality of section in case No. See 5(b)(10) 88—CF—52. 10— Joyce (JoyceI). 3d 1059 16, 1988,
On February Kane County grand jury indicted defend- ant on three counts of child abduction. Count I of the indictment al- that, leged 20, 1987, between December 12 and defendant intention- ally attempted B.N., to lure 16, child under age into a motor vehicle for other than a lawful purpose and without the consent of a parent or lawful custodian.
Defendant sought a of particulars bill to specify both the manner of the alleged attempt to lure B.N. into a motor vehicle and the un- lawful purpose that defendant allegedly harbored at the time. The trial court ordered the State to supply the possible unlawful purposes on which it relying. The State responded by supplying a list of 29 possible purposes unlawful homicide, included battery, kidnap- assault, ping, sexual and sexual abuse. then indictment, moved to dismiss the inter alleging, alia, that section 5(b)(10) broad, of the Code vague, overly 10—
unenforсeable and an by creating improper presumption, section 5(b)(10) shifts the burden of to the proof to prove a 10— 9, lawful 1988, intent. On June the trial motion, court denied the find ing that section 5(b)(10) was not unconstitutionally vague or 10— overly broad and that it did not impermissibly shift the burden of proof to the defendant.
Defendant again moved to dismiss the indictment. He re sought consideration of the trial court’s denial of his June 9 motion and addi tionally argued that section 5(b)(10) of the Code improperly com 10— choate since, bined and inchoate offenses in contradiction attempt (Ill. 1987, 38, statute Rev. Stat. ch. par. 4), luring and at tempting lure a child are treated the same. The trial court denied both reconsideration of its June 9 order and the new motion to dis miss. 23,
On December defendant’s attorney was allowed to with- draw from the case and the Kane County public ap- defender was pointed represent 29, 1989, defendant. On September the State filed an additional bill of particulars indicating that the offenses oc- curred 18, 1987, between December 10 and on a school day. On Octo- 16, 1989, ber the public defender moved for a continuance because defendant had decided to retain different counsel. The trial court granted the continuance but informed defendant the next date would be final and that attorney new should be so informed. The court set a status date of October 1989. On October public defender informed the court Komie attorney Stephen would enter an appearance time, defendant on 27. At that October the court set a trial date of December 1989. Defendant appeared *5 Komie indicated 27. Komie on October attorney the court with before a sta- requested finalized and being were arrangements financial that counsel that date, informed to set a agreed The court tus date. in- also The court continued. 4 trial date would the December would remain as counsel defender public formed defendant On November appearance. counsel entered a formal private until defender was appearance, publiс entered his attorney Komie from the case. allowed to withdraw 4, 1989, pre- to trial. The State proceeded the case
On December B.N., and two Batavia of- parents, police her testimony sented police of the same two offi- testimony ficers. presented cers, mother, Kluczynski. wife and Dr. John B.N.’s on
The was adduced at trial. B.N. was bom following evidence Illinois, Batavia, in in 2, 1973, and with her February parents lived time, her mother nor her father During neither December into a car or to her a ride give to ask B.N. gave permission home from school. High catch the Lutheran normally Valley
B.N. would bus of her home at School at a location that was three blocks north Wash- ington A church lot was located near her parking and State. with on the stop. day ground, bus One December when there was snow got p.m. B.N. off the bus at the usual time of 3:25 No other student got off the bus at the As B.N. walked south on Wash- stop day. ington home, her into the driveway toward she heard a vehicle turn the church lot her. then heard a man “Do parking yell, behind B.N. you want a ride?” B.N. turned arоund and saw a man with his face lot, sticking out of the window of a truck in the 10 to pickup parked facing 15 feet The driver’s side of the track was B.N. B.N. said away. stated, to the man in the track. The man then “Come pickup “[n]o” on, I again walking don’t bite.” B.N. said As she continued “[n]o.” south, heard tires and turned back to see the truck squealing B.N. driving from the lot. then went home and told her away parking B.N. mother what had happened. driver,
B.N. described the track and the whom she had never seen The track “a lot of rust on it.” previously. “blue-grayish” was She did not it recall whether the track had dents but stated that missing tailgate. was to B.N. the man in the track had According brown, dark growth. uncombed hair and a of beard couple days court, little, man was 24 to 26 old and dark B.N. years eyes. identified defendant as the man in the track. pickup she saw January
B.N. also testified about an incident took place got 1988. As she off the on that B.N. saw day, bus after school street, Washington. defendant across the north on driving He was in the truck same he December. Defendant was almost seat, standing up the driver’s uppеr hanging out body window he drove at five to seven per miles hour. As B.N. south, she walked saw truck of Washington. turn comer off B.N. then stopped talk two friends who were in a car driven the mother of one of Thirty the friends. seconds after seeing the turn, truck B.N. it again car, noticed her behind friend’s mother’s Defendant, pointed truck, south. who was fully now inside the did not At say anything. friends, B.N. said to her point, jokingly “[t]he *6 child is molester back.”
B.N. next walked to a She nearby already store. had entered the store eat get something to to when the truck passed by, heading west on Wilson. When she came out of a the store minute later and walked south Washington, on the truck was on going Washing- south slowly ton. The truck on Street turned east Webster while feet ahead B.N. B.N. went home told and her mother that she had seen the man again. her then B.N. and father went to the station police Batavia and spoke Officer with Donald Hubbard. B.N. described the offender and the truck to the police. group She looked at a of photographs and se- “[tjhat’s lected defendant’s him. I am photograph, stating positive.” opened рresentation Defendant his case with the stipulation a place the record custodian defendant’s of employment would exhibits, certain testify consistently with defense reflect places and hours of in days work various December not, however, 1987. time punch jobsites. Defendant did clock at to for Joyce year Sherida was married defendant one as of the him time of and in lived with 1987. At that Elgin December time, a 1985 Ram truck defendant owned which was Dodge pickup medium with to glaze. According blue a silver metallic wife, did spots, tailgate. the truck not have rust but it did have truck 1987 due operational Defendant’s was not December to a problem wife brakes. Defendant’s would drive defendant work each and from between December 7 and 31. nor- day get and home mally p.m. usually worked from 7 a.m. 3:30 would which B.N. p.m. photographs around 4:30 Two of defendant’s truck fact recognize failed to did in show defendant’s truck. previously picked Three of the which B.N. out did show the photographs truck in the spring truck. The of defendant’s were taken photographs оf 1988. summer also Dr. Kluczynski Dr. John testified defendant. Kluczynski was Kane psychologist clinical the senior psychologist in December was evaluated when defendant Diagnostic Center County student a doctoral administered Defendant’s tests were also con- The student Dr. direction. Kluczynski’s under psychology not per- did Kluczynski of defendant. Dr. a clinical interview ducted the stu- defendant, the work by did supervise meet with but sonally dent. and interview revealed Dr. the tests
According Kluczynski, schizo- paranoid from the chronic mental disorder defendant suffers was not determined. The date of the onset of disorder phrenia. disorder, difficulty accurately have Due to the defendant would He situations. would interpersonal to social or judging responding his role and fail to understand circumstances and distort situations in. feel- and act on his judgment them and on occasion would dismiss a loss of ings thinking Defendant’s evidenced thoughts. psychotic and re- imposition and could affect his reality ability appreciate recom- County Diagnostic of the law. The Kane Center quirements defendant and that a psychotherapy psychiatric mended that receive if evaluation be done to determine medication should be psychotropic provided. diagnostic center did not fitness or sanity. assess defendant’s
Dr. would have had to interview defendant and review Kluczynski materials, other to make a deter- background police reports, such as mination whether the disease in an acute or whether phase time was sane of the crime. Defendant was able control himself on the date of Dr. testing, Kluczynski unable *7 to if say defendant had such control December 1987. Defendant’s actions the or a manifes- product could have been of his mental illness tation of bad judgment.
At the Dr. testimony attorney close of Kluczynski’s for a to an of defend- moved continuance order obtain evaluation ant’s at the time of that he not sanity the offense. Counsel stated had to contact very long the case for and that he had been able receiving report. objected the doctor since the The State psychological continuance, to the motion for the trial court denied the motion stating that the case for a time and further pending long had been represented. defendant had been competently abduction,
In the trial court found convicting defendant of child B.N.’s to and found the of the offender testimony identity be credible proven. be The court that defendant’s conduct constituted found luring purpose as that term is defined and that defendant’s commonly unlawful, was demonstrated to or not the infer- statutory whether ence for child abduction The court also found upon. cases was relied had not the insanity preponderance defendant established
evidence. The then defendant court found ill and guilty mentally follow-up ordered a psychological examination. After defend- denying trial, ant’s motions in arrest of and for judgment a new the trial court sentenced defendant term a 30-month first probation, the year to be served intensive filed probation. thereafter notice of timely appeal.
As indicated the outset our opinion, defendant raises certain issues raised in Peo appeal in the instant that are similar to he issues v. ple Joyce (1991), 210 Ill. which case was still App. pending at the time defendant’s initial filed. In appellate particular, brief was defendant that section argues 5(b)(10) of the Code is unconstitu 10— tional offense, because certain the luring attempted elements of the luring of a “for other a lawful are impermissibly child than purpose,” addition, vague. argues that, if defendant even the statute is not unconstitutionally vague, his indictment have should been dismissed because, although statute, indictment tracks the of the language the offense of child one greater abduction is which requires specificity in the charge. court,
In his initial brief defendant states that two these issues, but for the name of complainant, are identical to issues he Joyce I and further raised in that he incorporates by reference and adopts the in the arguments presented prior appeal arguments as his brief, instant In his appeal. reply acknowledgеs this court has ruled to him on these subsequently adversely issues. I Joyce we Specifically, found in the child abduction stat “ ute was not impermissibly vague ‘[gjiven stated that its ordi nary phrase “other than a meaning, purpose” any lawful means ” (Joyce, purpose which is unlawful.’ 210 Ill. 3d at quoting Williams 133 Ill. 2d We also found since the Williams of the meaning phrase held that “other than a lawful purpose” any purpose, ordinary referred unlawful meaning of the “for phrase purpose” a lawful therefore referred that was lawful. 3d at I Joyce indictment, we
Regarding sufficiency noted in Williams also tracked approved language indictment of section 5(b)(10) pur and did not unlawful specify any particular found, therefore, We pose. sufficiently apprised that defendant was and the both nature elements offense. *8 Williams,
1067,
citing
duction statute is at question particular This penalties. proportionate due process mo 1991, 30, granting order of July to our pursuant issue defendant Specifically, to his brief. to add another issue tion for leave attempting luring statute, both argues punishes other than a lawful into a motor lure a child vehicle Constitu I, 11, of the Illinois felonies, article section Class 4 violates of the according to the seriousness punish tion it does not because are provisions crime, process penalty and it due violates because 1970, art. (Ill. Const. objective. related to the statute’s rationally earlier, motion dismiss I, §§2, 11.) pretrial As indicated are com and inchoate offenses charge on the basis that choate attempt (Ill. to the statute Rev. 5(b)(10)contrary bined in section 10— 4) ch. was denied. par. Stat. 8— pro that the child statute violates argues abduction creates imper in that it
portionality clause Illinois Constitution discretion, could have chosen to since the State prosecutorial missible statute, defend in which case prosecute attempt defendant under (See A ant have a Class misdemeanor. only would been convicted argument par. 4(c)(5).) Ill. Rev. Stat. ch. We believe to be in at least fatally respects. flawed two had the
First, assuming errs in that the State him statute or the child option prosecute attempt under either the Rather, doctrine,” abduction statute. under the when “preemption 4 fel child a Class legislature specifically attempted made abduction statute, any opportunity it ony preempted under child abduction attempt charge general for the State to defendant under the more statute. doctrine recently applied preemption
This court we held where Stupka (1992), Stupka, 226 Ill. 3d 567. specifi- the statute of a controlled substance prohibiting delivery substance, the State controlled cally attempted included of a delivery attempt more general could not the defendant under the prosecute statute. made a further observa- (Stupka, We at- inclusion of express tion which is here: that the equally applicable intent to legislature’s in the tempt specific offense demonstrated *9 404
treat the attempted offense as the of- equally seriously completed fense. 226 Ill. 3d at 574.
A second flaw in defendant’s argument is that it is not supported by the case law he In People 172, cites. v. 139 Christy (1990), Ill. 2d the (commission same act of a with I kidnapping category weapon) supported convictions both aggravated Class I kidnapping, felony, violence, and X armed a Class felony. court held that the possibil ity two different penalties identical pro offenses violated the (Christy, clause. portionality Ill. The court re also jected the State’s argument penalties the difference in simply that, a matter of prosecutorial discretion. The court reasoned given discretion, such prosecutors would choose to the usually chargе offense, the with more serious the seri nullifying thus less ous offense and the the violating legislature intent of both enacting the 139 Ill. statutes. 2d at 180. such,
As Christy offers no substantive Given that the support. preemption doctrine eliminates prosecutorial charging discretion here, defendants the with offense involved this case does not involve two penalties offenses, different for two equal identical penalties related, for different, though offenses. While it is true that child the abduction effectively statute nullifies the statute attempt insofar as this particular concerned, offense is that is what legisla- exactly ture had in mind. The plain language the statute itself is best guide legislature’s to the intent. Clearly, legislature decided and intended to make attempted child as serious an offense as abduction completed child abduction.
We with disagree argument also the statute violates process penalty provisions rationally due because its are not related objective. to the statute’s Defendant does not deny legislature broad as declaring has discretion criminal offenses and signing punishments only thereto. Due that a statute process requires “ ‘reasonably designed legislature be the evils which remedy health, has determined to a threat to the public safety general and ” 157, (People welfare.’ v. Morris (1990), quoting 2d v. Heimgaertner Benjamin (1955), Electric Co. Ill. Manufacturing 2d 159.) Defendant also does not that the State has “a sub deny children, may pro stantial interest of its and protection validly luring scribe the children into motor vehicles attempted luring (Emphasis added.) (1990), for criminal v. Williams purposes.” (People is so 133 Ill. 2d assert that this offense Nor does defendant excessive or lacking inherently in seriousness that a Class 4 penalty 105 Ill. 2d (1985), v. Steppan shocking to conscience. legis that hold where relies on cases Defendant instead as more seri one offense its intention to characterize lature declares another, penalties for less it not mandate harsher may ous than 308; People v. Wagner (1982), 89 serious offense v. some rea a statute must bear 410) 79 Ill. 2d Bradley (1980), prevent (Peoрle it the evil is intended relationship sonable Here, has classified 157). legislature 136 Ill. 2d Morris indicated a single heading, completed offenses under attempted assigned penalties equal them equal gravity, desire to treat to them. in prevent- has a and vital interest
Conceding the State valid *10 children, defendant’s ing abduction punishing attempted and unsupported the non citation of argument sequitur, by comes down to legislature 4 any authority, penalty relevant case that the Class has is “un- set for the offense of which defendant has been convicted harsh, that not serve interest necessarily reasonably and does legislature sequitur to offers another non seeks Defendant protect.” is, defendant, in argument: according of his because there to support less to the an than from suc- danger attempted child from abduction abduction, cessful less as well. punishment should be to the arguments go We find now that defendant’s most wis- legislature’s dom the and due process. decision not to issue of essentially legislature that argues process prevents due from an as of- penalizing attempted harshly completed offense as However, fense. no for a authority proposition defendant cites statutes, including would necessitate massive revision of our criminal statute. instruct attempt Such relevant cases as we have found us legislature assign penalties has discretion to identical broad might offenses one offense less serious though even some think See, than v. 9 465-66 e.g., People Touhy (1956), the other. Ill. 2d (no for punishment prison escapee constitutional violation in equal one in v. who aided Houston escape); legislature’s upgrade pan- decision to all forms (upholding compul- dering previously only pandering by Class felonies where sion punishable). was so
It conduct such as may properly proscribe is clear the State outlawing attempted By which defendant was convicted. abductions, well as completed only promotes child the State punishment successful, are potential they child abductors before may also addresses the harm to children that occur evеn unsuc-
cessful abductions. We therefore reject arguments defendant’s in this regard.
We would also point out in his motion to add the above-dis- issue, cussed defendant noted that the identical question was raised in People Schmidt, v. case which was pending this court at the time interim, defendant’s motion was filed. this court has rendered a decision in is contrary Schmidt which position. defendant’s stated (2d Schmidt Dist. April 1992), No. (unpub- 2—90—1294 lished order under Supreme course, Court Rule 23).) Of 23 pro- Rule vides that orders pursuant issued to that precedential rule are not may only invoked to support contentions, certain other none of are applicable here. We next consider defendant’s contention that the trial court by abused discretion defense denying counsel’s motion for a contin- an uance obtain evaluation of sanity at the time of the offense. In argument, a related defendant contends that if there was discretion, no abuse of then defendant must have received ineffective assistance of counsel that his attorney trial failed adequately timely prepare defense. insanity disagree We both accounts.
As indicated earlier in this opinion, at the close of Dr. Kluc- zynski’s testimony defense counsel moved for a continuance in order to obtain an evaluation of sanity the time of the of- fense. The trial motion, court denied the the case noting pending been for a time long and further that defendant had been represented. competently Defendant maintains that the court’s action in this him regard denied a fair trial and an constituted abuse of discretion. law case cited support argument, how-
ever, is inapposite either or tends to the State’s actually support posi- tion that the trial court acted in the In properly denying motion. Peo- ple 203, v. Panker 120 2d (1970), App. upon Ill. the court noted showing that for want time has proper of counsel not been able to the or the for properly prepare ready case that cause not trial for of to fault the opportunity preparation owing want for no ac- cused, in postpone the trial court the exercise its discretion should or the if App. continue case 120 Ill. 2d necessary. (Panker, The court then held that the trial court in deny- abused discretion ing passed a motion for a continuance where 14 had since only days arraignment, no been re- previous the defendant’s continuances had quested, attorney and neither defendant nor his notice that going the matter to trial on the the continuance proceed day was was 120 Ill. requested. App.
407 Ill. 3d the defendant (1979), App. v. 75 People In Ramshaw the fact that a material witness due to continuance moved court appellate court to The testify. ill in present and could not be of discretion denial of the motion constituted an abuse held that nec “absolutely that the witness was recognized the trial court where the case had to the still denied the motion and where essary” case but Ramshaw, point. been carried on to that expeditiously up 3d at 126. Ill. the defendant
In Johnson trial, in trial. Prior to defendant was convicted murder a bench witnesses, the both psychia- a continuance on two sought basis trial as trists, in defendant’s behalf at testify would be unavailable in- it defense was that he was was then scheduled. Defendant’s sole psychiatrists of the and the two were sane at time offense There indication in that defense. was no support witnesses only case continuances protracted proceedings that the involved facts, the court granted. on these previously appellate had been Based in denying held that trial court abused its discretion defendant’s Johnson, motion for a continuance. 3d at 401. refer in this are different from those quite facts case out, charg
enced above. As the State indictment correctly points in 1988. Ini defendant with child abduction was issued ing February CF—52, retained in this case and case No. defendant tially, un private counsel. counsel defendant both cases represented Said sentencing til trial in case No. 88—CF—52 completion 23, 1988, granted 1988. On December December from this case and case motion to withdraw attorney’s rep defender to appointed public No. 88—CF—52and the office resent defendant in both cases. from public defender’s office represented by
the time of November 1989. appointment December until filed a for a continuance October defender motion public once provide private retain counsel opportunity motion, 16, 1989, again. granted On October the trial court to trial on proceed admonished defendant the case was to Komie, Stephen next trial date. Attorney available 9, 1989. At present counsel, entered his on November appearance time, fully he prepared proceed Komie indicated that was trial of the case set for trial December instant which was notes, deny, 1989. The State and defendant does correctly during pending, time in which this case was no the extended period *12 408 during nor case No. CF—52, did of prior counsel insanity
raise the issue of the defense. Thus, defendant had almost two from the years time of his indict- ment, ator least 11 months from the time the psychologicаl evalua- tion upon by relied Dr. Kluczynski was of completed, the time in December 1989 to prepare an insanity attorney defense. While Ko- mie not may have been representing defendant most timing of that time, we say denied, cannot through defendant was no fault of own, his adequate time prepare (See People his case. v. Hobbs (1975), 29, 35 Ill. 3d 31 App. (where case had been continued four times, defendant, twice of request and newly where appointed counsel had two days which talk to client and interview wit- nesses, denial of motion for continuance was not an abuse of discre- tion).) us, Based on the record before considering protracted case, history of this we conclude the trial court’s denial of defendant’s motion for a continuance was not an abuse discretion. of
Alternatively, defendant if of argues that denial motion for continuance improper, was not then he was denied the effective assist ance of To prevail counsel. on a claim of ineffective assistance of counsel, a defendant must that (1) show counsel’s fell representation objective below an of reasonableness, standard counsel’s (2) sub standard so representation prejudiced defense as to deny defendant a fair trial. (People 504, v. (1984), 525, Albanese 104 Ill. 2d citing v. Washington (1984), Strickland 466 80 U.S. L. Ed. 2d 674, 104 Ct. 2052.) S. of trial Scrutiny performance counsel’s must be deferential, highly and there a strong presumption counsel’s conduct is within wide of range reasonable professional assistance. (1989), Thus, v. Johnson 128 Ill. 2d 266.) judicial inquiry into competency generally counsel will not extend to the exer discretion, cise or judgment, strategy, ap trial tactics even where pellate reviewing might counsel or a have handled the matter differently. (People v. 3d Ill. Barfield Moreover, not rely on mere may conjecture speculation that the outcome would have representation been different with higher (Barfield, caliber. It is axiomatic that competency totality is determined from an examination of the compe counsel’s conduct trial and that a defendаnt is entitled to tent, perfect, representation. People Treadway (1985),
The record in attorney this case reveals that Komie made nu merous objections to various aspects testimony presented by State, witnesses, employed effective cross-examination State’s de- insanity alibi and supporting defendant’s presented *13 successful, repre- not Komie’s addition, though completely In fenses. ill rather mentally finding guilty the but result in sentation did vigor- entire counsel Throughout proceeding, the guilty. than simply did general the and State’s evidence challenged and tested ously in- constraints given of him time could be expected the best that not representation that Komie’s did conclude Accordingly, volved. we not, need of reasonableness. We standard objective fall below an Strickland, defend- therefore, whether prong consider the second by representation. counsel’s prejudiced ant was Ill. 3d People Rainey also note that We would argu- support cited ineffective assistance defendant Rainеy, counsel ment, Prior trial defense distinguishable. to the defendant for the for mental examination of moved fit to trial whether he defendant stand and determining whether was ill, insane, at the time of the offense. legally mentally or at least was motion, psychologist ap- and a clinical was The court allowed The stated psychologist’s report examine the defendant. pointed in- was to stand trial. The further report her belief that defendant fit he at time of the offense but legally dicated that was not insane ill time. confirmed her psychologist report was at that The mentally trial. hearing at a held bench No evi- immediately prior fitness introduced, how- concerning dence defendant’s mental condition was ever, mitigation at at the trial. Such evidence was introduced hearing. sentencing
On the defendant that he was denied effective appeal, argued failed introduce of in- assistance of counsel in that counsel sanity agreed or mental at trial. The court found appellate illness prejudicial. (Rainey, the error did affect the judgment and judge Ill. at the trial court noted trial, him at placed stated if the evidence had been before proper addition, he guilty mentally would have found defendant ill. available readily evidence of mental illness was noted reit- defense, hearing to the at the fitness having produced been such, of newly it not a case sentencing erated As hearing. case Such is (149 discovered evidence. here, contrary speculative are arguments best. Defendant con- arguments final are also interrelated.
Defendant’s a rea- beyond tends that of child abduction proved guilty he was not failed to argues that the State Specifically, sonable doubt. truck, he B.N. into his “attempted that he lure” prove acted for “other than a lawful purpose.” Defendant also argues that the trial court effectively relied on the in the presumption child abduc- tion statute to find that defendant acted with other than a pur- lawful pose. Defendant maintains there was no corroborative evidence Therefore, of his mental state. he was not beyond shown a reasonable to have requisite doubt harbored the unlawful intent. willWe address first the issue statute’s presumption. provides:
Section 5(bX10) “(b) A person commits child abduction when he or she:
* * * (10) Intentionally lures or to lure attempts a child under the age 16 into a motor without vehicle the consent of the par- ent or lawful custodian of the for other child than a lawful pur- pose.
For the purposes of this subsection (b), paragraph (10), luring or luring of a attempted child under the of 16 into age *14 motor vehicle without the consent of the or parent lawful custo- of dian the child shall be prima facie evidence of other than a lawful purpose.
(c) It shall be an affirmative defense that:
* * * (4) person lured or attempted to lure a child under the of 16 into motor age vehicle for a lawful prosecu 1987, tions (b), (10).” under subsection Ill. Stat. paragraph Rev. 38, pars. 10-5(b)(10), ch. (c)(4). contends,
Defendant correctly implicitly agrees, the State prove that the State is obligated defendant’s intent for “other was than a lawful purpose.” initially Defendant that thе argues statute creates an impermissible presumption the mandatory because statute presumes one element of the offense of the other upon proof ele ments. He contends that the proof the statement of other ele ments of 5(b)(10) prima section “shall be facie evidence of other than lawful indicates a purpose” clearly mandatory presumption. in criminal
Mandatory presumptions cases are unconstitutional be- cause the State of of a reason- they proof beyond relieve its burden shifting the the burden process able doubt violate due clause of (Francis (1985), to the criminal v. Franklin persuasion defendant. 313, 344, 1965, 1970.) 471 L. 2d 105 Ct. U.S. 85 Ed. S. On hand, the other an or entirely permissive presumption, inference an require does not trier of fact to infer ele- allows—but —the fact, mental from of no burden proof places fact the basic and which defendant, of kind on the is In that situation clearly permissible. of the elemental evidence prima, constitute may the fact basic facie dеvice, Supreme the evidentiary of reviewing type this fact. When invalid- its it to demonstrate challenging required party has Court 140, 157, 442 U.S. (1979), Court v. Allen County to him. applied ity 777, 792, 2213, 2224. Ed. 99 S. Ct. 60 L. 2d create a does not statute find that child abduction
We proof shift the burden or presumption improperly mandatory v. Mar per (People se. not unconstitutional defendant and is therefore 802; v. also 217 Ill. 3d see (1991), App. cotte Garofalo nothing Rather, 3d we believe 978.) 181 Ill. (1989), App. created, speaks the statute inference is since permissive more than a the trier is no restraint on in terms evidence and there prima facie Embry v. ability accept reject (People of fact’s or inference. 96, 101.) such, validity permis As (1988), 177 Ill. 3d App. inference as applied inference rests on an evaluation of the sive particular (Embry, on the record before the court. 101.) finding prior 3d This is with our decision consistent Joyce I, Ill. 3d we Joyce I.
Joyce prima by failing jury stated instruct facie in contradicted, court, the trial may by way be rebutted or given, mandatory presumption.” (Joyce, structiоns “created a agree State that in such hold implicit We permissive was ing statutory presumption the belief face, not mandatory. further, however, that for issue argues purposes if the held to presumption it does not matter actually statutory effectively relied on the permissive mandatory, since the the unlawful presumption finding proved alone in State that, where child contends purpose element of abduction. Defendant he no intent was presented, corroborative evidence unlawful such a reasonable doubt. proved beyond to have harbored intent *15 a subject of is to presumption While the a “be validity mandatory test, a of a yond presump reasonable doubt” the validity permissive stringent permissive pre is a less test. generally subject tion to With must a the facts sumptions, “there be rational connection between proved presumed, and the facts the fact must be ‘more ultimate likely (People than not to flow’ from the fact. basic [Citation.]” “Nevertheless, (1989), 99-100.) Hester 131 Ill. 2d the inference must be of if therе is no supported by corroborating guilt; evidence evidence, fact the corroborating the from the to ‘leap proved pre sumed element’ must still a reasonable doubt. proved beyond be [Cita Hester, 131 Ill. 2d at 100. tion.]”
In finding defendant of guilty abduction, the offense of child the trial court stated that highly B.N. was a credible witness and that the State had the proved elements attempted of luring the lack pa- rental consent beyond a reasonable doubt. Regarding the unlawful element, the court stated as follows: therefore,
“The issue is whether the Defendant acted for [n]ext or with an unlawful The purpose. testimony wishing without prolong by going great detail, into was that [B.N.] home, walking alone, that a truck pick-up pulled off the street parking into a lot near walking, where she was that the driver I that truck who as indicated earlier had been identified and the Defendant, Court finds her, yelled you at ‘Do want no, a ride?’ After which she turned around and said then con- walking tinued on the course. The Defendant persisted by say- ing, on, ‘Come I don’t bite.’ When again said no and сon- [B.N.] walking, tinued then the Defendant accelerated, rapidly squealing tires, and drove The away. Defendant —the testi- has mony been he lived in at Elgin the time and was working either in a school district Aurora or in a school district Schaumburg. testimony further was that the Defendant growth two-day beard and his hair was unkempt. The Defendant was identified approximately month later very near the same location in a vehicle matching same descrip- tion. The was he testimony leaning was identified as he was out of the I vehicle. find that this evidence meet does intent, standard for an proof unlawful my would be finding find, I absence Statute. as I mentioned earlier, that the Statute has what I regard permissible in- ference. This was defined in I Embrey versus [sic] cited, previously and I pref- concur in that conclusion that the erence prima facie a permis- Statute constitutes [sic] course, sive Of if I I inference, inference. arrive apply the same conclusion.”
When with a presented challenge the evi- sufficiency dence, it is not reviewing function of the retry defendаnt. v. Collins 106 Ill. 2d The rele- whether, question light vant after in the most viewing prosecution, any favorable rational trier of fact could have found the essential elements of the crime a reasonable beyond doubt. (Collins, aside, A will set criminal conviction however, where improbable unsatisfactory the evidence is so that it guilt. creates a reasonable Ill. 2d at 261. doubt of
413 suffi- that there conclude the evidence We have reviewed totality verdict. guilty court’s the trial cient to support evidence corroborating evidence provides here circumstances only B.N. was purpose.” than a lawful defendant acted for “other en- question. day child who exited the school bus a if she wanted B.N., stranger, and asked stop tered a school bus entic- with an request repeated rejection, ride. After a defend- rejection, second After a on, I don’t bite.” ing phrase, “Come Approxi- his tires. squealing quickly, the area ant from away drove truck defendant’s incident, observed B.N. one month after mately Defend- home. and walked bus exited the school following her as she Under away. and drove he turned ant her for a while before followed behind parked vehicle later, noticed again a minute B.N. store and nearby to a walked B.N. then her friend’s mother’s car. store, out of the B.N. came by. truck When passed turning on that street before driving again slowly defendant was B.N. 15 feet ahead of away could a fact finder entirety, in their these circumstances
Viewing
The fact that defendant
purpose.
infer that defendant had an unlawful
ride, he fled the scene
his offer of a
stranger,
repeated
he
B.N.,
in which un-
are all actions
and a month later followed
quickly,
facts are suffi-
these
together,
can
inferred. Taken
purpose
lawful
guilt
support
presumption
cient
corroborating evidence
Hester,
Finally, of his 1988 incident evidence January the trial court’s use of failing to by this issue Defendant has waived purpose.” “unlawful Ill. 2d v. Burrows 148 (People (1992), motion post-trial raise it plain in his Under failing to raise this issue brief. 229), by 615(a)), R. wе (134 Rule Ill. 2d Supreme 615(a) error Court analysis, crimes ev no note that other the result would be different. We believe for some other than establish purpose idence be admitted may King (1986), v. to commit the crime. defendant’s propensity 1988 Thus, January use of the Ill. the trial court’s 109 se. per error as evidence of defendant’s intent was not incident the trial Further, not prejudiced we believe defendant was admissibil- sponte court’s sua ruling to limit the reconsideration of incident. concerning January 1988 ity 145 Ill. 2d Thingvold (1989), App. 3d affd the purpose solely the trial court allowed evidence to be admitted (Thingvold, witness which is error. enhancing credibility, for a Here, proper the evidence the trial court used purpose: addition, as evidence of intent. In testimony concerning the January incident already presented, been albeit for the lim- ited identification. This is not a case where trial strategy is affected substantially by the trial court’s reconsideration.
For foregoing reasons, of judgment the circuit court of Kane is County affirmed.
Affirmed.
DUNN, J., concurs. BOWMAN, dissenting:
JUSTICE I respectfully dissent from portion of the opinion majority which concludes that there exists sufficient corroborating evidence of purpose” “unlawful guilty sustain the trial court’s ver- dict.
The states that majority totality of the circumstances here “[t]he provides corroborating evidence defendant for acted ‘other than ” a lawful purpose.’ (234 Ill. 3d In thereof, support majority (1) *18 was, as the ma- in he January saw defendant again
when B.N. up- seat and his out, in the driver’s standing up “almost jority points 3d at (234 App. Ill. hanging out of the window.” per body was “attempting of a person These not to be the actions appear do Henderson, Ill. 3d at 507. App. 39 avoid arrest detection.” court’s, court’s, of this However, majority it is the trial and the incident, that to me is factor, 1988 January treatment of the fifth the a defense trial, granted court had Prior to the trial most troublesome. At other crimes evidence. the introduction of motion in limine bar objection, trial, testify, B.N. over defendant’s the court allowed stated, explicitly The trial court January the 1988 incident. about purposes for identification allowing that it was the evidence though, not сon- clear that he would fact, quite In the trial made it only. judge defendant’s intent. sider the later incident as evidence of abduction, however, the trial of child finding guilty In he would he had stated expressly then did that which judge exactly stated, in part: not do. The court acted therefore, the Defendant issue, is whether “The [n]ext *** Defendant was identi- The purpose.
for or with an unlawful in the same location very month later near fied approximately testimony description. that matching a vehicle same I find of the vehicle. leaning he as he was out was identified of an un- proof for meet the standard that this evidence does intent, lawful that be my finding would in the absence of the Statute.”
From I remarks, these think it obvious that the trial court did in fact incident, consider the evidence the second not for only identifi- cation also purposes, intent, as evidence of contrary defendant’s to the court’s earlier ruling. The majority only compounds the trial court’s error when too it relies on the second incident as corroborat- ing evidence an unlawful рurpose. People v. Thingvold defendant, Ill. 3d
who was charged with in solicitation connection with the murder of wife, moved successfully in limine to exclude evidence the mur- der from the trial. As chief, defense neared the end of case in its however, court, the trial pursuant a State motion to reconsider its prior ruling, held that evidence of the murder could be admitted for the limited judging credibility. witness As a basis for re- conviction, versing found, this court part, defendant had prejudiced by been the manner evidence of the murder (Thingvold, was admitted. Not- ing that prejudice may result when decision trial is made in reli- ance on an evidentiary ruling reversed, is later we held that defendant was in prejudiced fact where the trial court reversed its previous ruling at end of case where defendant’s strategy relied the court’s order excluding evidence of the 152; murder. 191 Ill. see also v. King (1986), 109 Ill. 2d
I believe the prejudice to defendant in this case to even more Here, than it apparent Thingvold. the defendant not only is it were altogether likely that decisions made at trial in reliance on the ruling, court’s in limine basis reliance was reinforced trial, during when the court assured defendant evidence incident would be considered as evidence of his intent. second Moreover, while in Thingvold ruling the court its toward the changed chief, end of the defendant’s case here it was not until all rendering had heard and was verdict *19 changed court ruling its allow consider evidence of apparently January on the intent. Under question incident defendant’s alone, I a these circumstances new trial would be warranted. believe 191 Ill. 3d at Thingvold, brief,
In the same evidence as did the trial State relies on support argument proved guilty court in of its that defendant was be- However, yond a reasonable neither State nor trial doubt. court un- identified corroborative evidence any specific, on the concluded, based Rather, simply the trial court intent. lawful The intent existed. elements, that such the other supporting evidence of insidious smack “certainly that defendant’s actions argues State that his pur no evidence that defеndant himself offered design” that there is a “ra addition, argues In was lawful. State pose conduct, luring attempted tional connection” between intent. The consent, unlawful and the inference of parental without har than not” that defendant likely State also contends it is “more statements I it is clear from these an unlawful intent. believe bored necessary, even ignores proof the State the standard simply is inferences, corroborating pre no evidence where permissive v. Hester 91, 100. (1989), 131 Ill. 2d sented. court, there I would conclude
Based on the record before guilty the trial court’s verdict. support was insufficient evidence to that defend corroborating There no simply independent, I how the ant for “other than a fail see purpose,” acted lawful reliance on reached a conclusion without could have such he did not the trial statement statutory presumption, judge’s inference, such, though con rely notwithstanding. statutory so As face, to defendant impermissibly applied sound on its stitutionally evidence, corroborаting under the circumstances of this case. Absent from the fact to the element” must still “leap proved presumed (Hester, 131 Ill. 2d proved beyond reasonable doubt. State has failed in this its continued reliance regard, by as evidenced proof. on the “rational connection/more than not” standard of likely I this court held, Joyce observance, As a final I would note that comment,” defendant was unnecessarily protracted “without Joyce proved doubt. guilty beyond reasonable however, introduced case, the State defendant, and after his evidence of three statements made before conduct. arrest, for defendant’s suggested sexual indicated, no such corrobora- (Joyce, 1063-64.) As tive evidence was in the instant case. presented notes that B.N. the only was child that exited the school bus day question; (2) defendant, a stranger, asked B.N. if ride; she a (3) wanted that defendant his repeated request with the “enticing” bite”; “I phrase, don’t and (4) that defendant then drove quickly and away squealed his tires. The majority also focuses much of incident, its attention on subsequent occurring approximately one month after the December incident which defendant was in- dicted, wherein again allegedly defendant followed on her way B.N. home from school. As to the first circumstance relied upon by majority, that B.N. bus, the only child that exited the school I fail to see the connec- tion allegedly between that fact and the unlawful intent by harbored circumstances, defendant, defendant. second and third stranger, if repeated asked B.N. she wanted a ride and then the re- “I quest stating, bite,” don’t by relate the first and third directly i.e., elements of the statute, child abduction to lure attempt without parental Thus, consent. rather than cor- identifying any independent, roborative evidence unlawful relies on purpose, majority simply facts, the above actually separate which constitute elements of of- fense that the is states that such required prove, State facts constitute of the corroborating evidence the final element offense. on, Moreover, bite,” I do I not believe the don’t be phrase, “[c]ome it, more more indicative “enticing,” majority puts any you” hurt on, I won’t than the phrase unlawful “[c]ome of an on.” or simply “[c]ome that, being after is majority noted The fourth circumstance squealing quickly, the area from away drove rejected, majority assume the clear, I must entirely this is not Although tires. scene, crime alleged from the flight fact as evidence mentions this purpose, an unlawful conscience, and therefore guilty from related usually However, flight might inferred. stated fact, long ago confrontation. police way some connoting eva- understood as “commonly “flight” word v. Hur- scene.” leaving mere rather than a sive action attempting The accused must be 167, 170.) 2d ley (1968), a consciousness detection, imply actions which arrest or to avoid v. Henderson guilt. People to be leaving the scene actions Here, I find the defendant’s con- guilty of a ambivalent, indicative necessarily somewhat in- viewed as actually be Instead, might defendant’s actions science. fact considers the one guilty consistent with a conscience when