People v. Leezer ( 2008 )

NO. 4-08-0184 Filed 12/19/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Adams County
DAVID M. LEEZER, ) No. 07CM159
Defendant-Appellee. )
) Honorable
) William O. Mays,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
In March 2007, the State charged defendant, David M.
Leezer, with violating an order of protection (720 ILCS 5/12-30
(West 2006)) for coming within 1,000 feet of Brandy Huber's
residence. Following a November 2007 conviction, the trial court
granted defendant's motion for judgment n.o.v.
The State appeals, arguing the stay-away provision of
the order of protection precluded defendant from entering a
1,000-foot radius of Brandy's home. We reverse.
I. BACKGROUND
In November 2006, the trial court issued an order of
protection against defendant, which required him to stay 1,000
feet away from Brandy's residence. The preprinted order-of-
protection form was created by the Conference of Chief Circuit
Judges. Section 2 of Part A of the form coincides with section
214(b)(3), the "stay away" provision, of the Illinois Domestic
Violence Act of 1986 (Act). 750 ILCS 60/101 through 401 (West
2006). Within the stay-away portion of the form, subpart (a)
deals with the person, subpart (b) deals with the residence,
subpart (c) deals with communication, and subpart (d) deals with
buildings, such as place of employment and school, that defendant
is banned from while Brandy is present.
In February 2007, Brandy left her house around 10 a.m.
to take her infant daughter to a doctor's appointment. At an
intersection near her house, Brandy noticed defendant's truck
parked in an alley. While deciding whether to call the police,
she made several turns and again met defendant on the road.
According to Brandy's testimony, at the second meeting, defendant
made eye contact and "he actually waved to me and grinned."
Brandy did not call police because she was late for the appoint-
ment. Instead, she called her friend, Gary Farha, who was the
first assistant State's Attorney. Farha drove past Brandy's
house to see if defendant was there. Satisfied defendant was not
at Brandy's house, Farha continued driving through her neighbor-
hood. While stopped at an intersection, Farha saw defendant
approaching from an adjacent road with his turn signal on,
indicating he intended to turn onto the street on which Farha was
stopped. The two made eye contact, and defendant discontinued
the turn and accelerated past Farha.
In March 2007, the State charged defendant with violat-
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ing an order of protection, and a November 2007 jury trial
followed. At the close of the State's case, defendant moved for
a directed verdict, which the court denied. The jury returned a
guilty verdict. Defendant filed a motion for judgment n.o.v.,
which the court later granted.
This appeal followed.
II. ANALYSIS
A. Jurisdiction and Double Jeopardy
Initially, we address this court's jurisdiction because
the State appeals the granting of defendant's motion for judgment
n.o.v. According to Supreme Court Rule 604(a)(1), "[i]n criminal
cases the State may appeal only from an order or judgment the
substantive effect of which results in *** arresting judgment
because of a defective indictment, information[,] or complaint."
210 Ill. 2d R. 604(a)(1); People v. Taylor, 50 Ill. 2d 136, 138,
277 N.E.2d 878, 880 (1971). The State may not appeal a motion
for judgment n.o.v. as it is given the same weight as a directed
verdict and is essentially an acquittal providing relief on the
insufficiency-of-the-evidence ground. People v. Van Cleve, 89
Ill. 2d 298, 303, 432 N.E.2d 837, 839 (1982). An acquittal
occurs when the judge's ruling, regardless of its label, actually
resolves some factual elements of the offense in defendant's
favor. People v. Wallerstedt, 77 Ill. App. 3d 677, 680, 396
N.E.2d 568, 570 (1979).
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In this case, the State's appeal is proper because the
substance of defendant's motion for judgment n.o.v. amounted to a
motion in arrest of judgment (725 ILCS 5/116-2 (West 2006)).
Defendant's motion attacked the sufficiency of the charge in the
information, not the sufficiency of the evidence. Further, the
trial judge's order granting the motion did not resolve any
factual elements of the crime. For these reasons, we consider
defendant's motion a motion in arrest of judgment from which the
State properly appealed. Both the State and defendant concede
this point in their briefs.
Additionally, the State's appeal does not pose a
double-jeopardy threat to defendant. Traditionally, jeopardy
attached when a jury was impaneled and sworn, or in a bench
trial, when the court began to hear evidence. People v. Shields,
76 Ill. 2d 543, 546, 394 N.E.2d 1161, 1163 (1979). However, the
rules of jeopardy attachment should not be applied mechanically
when the interests the principle protects are not threatened.
People v. Rudi, 103 Ill. 2d 216, 223, 469 N.E.2d 580, 583-84
(1984); People v. Collins, 214 Ill. App. 3d 98, 104, 573 N.E.2d
346, 350 (1991). The words "not guilty" are not controlling for
purposes of double jeopardy, and what qualifies as an acquittal -
is not determined by the form of the judge's action or the name
he assigns it. Rudi, 103 Ill. 2d at 223-24, 469 N.E.2d at 584.
"Double jeopardy does not attach when a cause is discharged on a
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motion in arrest of judgment, since jeopardy claims are waived by
the filing of the motion." People v. Kleiss, 90 Ill. App. 3d 53,
54, 412 N.E.2d 39, 40 (1980), citing People v. Beauchemin, 71
Ill. App. 3d 102, 109, 389 N.E.2d 580, 586 (1979). Here, defen-
dant waived any claim of double jeopardy when he attacked the
sufficiency of the State's charge against him.
B. Standard of Review and Statutory Construction
An appellate court reviews issues of statutory inter-
pretation de novo. People v. Olsson, 335 Ill. App. 3d 372, 374,
780 N.E.2d 816, 818 (2002).
When construing a statute, a reviewing court must
"ascertain and give effect to legislative intent." People v.
Perry, 224 Ill. 2d 312, 323, 864 N.E.2d 196, 204 (2007). The
language of the statute best indicates legislative intent, and
the language should be given its plain and ordinary meaning.
Perry, 224 Ill. 2d at 323, 864 N.E.2d at 204. To determine the
plain meaning of the language, we read all statutory provisions
together and consider the purpose of the legislature in enacting
the statute. Perry, 224 Ill. 2d at 323, 864 N.E.2d at 204.
C. The Domestic Violence Act
The Act shall be construed liberally to promote its
purpose (Olsson, 335 Ill. App. 3d 374-75, 780 N.E.2d at 818),
which is to promote safe and healthy families, as demonstrated by
the following statutory language:
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"[D]omestic violence [is] a serious crime
against the individual and society which
produces family disharmony in thousands of
Illinois families, promotes a pattern of
escalating violence which frequently culmi-
nates in intra-family homicide, and creates
an emotional atmosphere that is not conducive
to healthy childhood development." 750 ILCS
60/102(1) (West 2006).
The Act is intended to "reduce the abuser's access to the victim
*** so that victims are not trapped in abusive situations by fear
of retaliation *** or loss of accessible housing" (750 ILCS
60/102(4) (West 2006)) and to expand the victim's criminal reme-
dies to effect physical separation from the abuser (750 ILCS
60/102(6) (West 2006)).
D. Defendant's Claim That His Actions
Did Not Violate the Criminal Code
In this case, the State claims defendant violated a
valid order of protection provision requiring him to stay 1,000
feet away from Brandy's residence. Defendant claims the State
failed to state a valid charge because driving within 1,000 feet
of Brandy's residence did not violate the criminal code. We
agree with the State that defendant is criminally liable for
violating a valid order of protection.
The Criminal Code of 1961 (Code) provides a person
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commits a violation of an order of protection if:
"(1) He or she commits an act which was
prohibited by a court or fails to commit an
act which was ordered by a court in violation
of:
(i) a remedy in a valid order
of protection authorized under
paragraph[] *** (3), *** of subsec-
tion (b) of [s]ection 214 of the
[Act]." 720 ILCS 5/12-30(a)(1)(i)
(West 2006).
The Act provides "[r]emedies set forth in pre[]printed form
orders shall be numbered consistently with and corresponding to
the numerical sequence of remedies listed in [s]ection 214." 750
ILCS 60/221(a)(1) (West 2006). Paragraph (3) of subsection (b)
is the remedy applicable to this case, and it states as follows:
"Order respondent to stay away from
petitioner or any other person protected by
the order of protection, or prohibit respon-
dent from entering or remaining present at
petitioner's school, place of employment, or
other specified places at times when peti-
tioner is present, or both, if reasonable,
given the balance of hardships. ***
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If an order of protection grants peti-
tioner exclusive possession of the residence,
or prohibits respondent from entering the
residence, or orders respondent to stay away
from petitioner or other protected persons,
then the court may allow respondent access to
the residence to remove [personal] items."
(Emphasis added.) 750 ILCS 60/214(b)(3)
(West 2006).
The State argues the section 214(b)(3) stay-away- from-
petitioner provision includes Brandy's residence. Defendant
contends the paragraph (3) remedies do not apply to this case
because the information alleges defendant was within 1,000 feet
of Brandy's residence, not Brandy's person. We agree the section
214(b)(3) stay-away-from-petitioner provision applies equally to
Brandy and her residence as both are selected on the order of
protection.
We addressed a similar challenge to a criminal viola-
tion of an order of protection in Olsson, 335 Ill. App. 3d at
372, 780 N.E.2d at 816. In Olsson, a preprinted form directed
the defendant to "stay away from" the victim and "not communicate
directly or indirectly with persons protected under this [o]rder,
whether in person, by telephone, written notes, mail[,] or
through third parties." Olsson, 335 Ill. App. 3d at 373, 780
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N.E.2d at 817. Although paragraph (3) of section 214(b) did not
expressly address telephone contact, we concluded the Act pro-
scribed this conduct when it specifically prohibited it in an
order of protection. In so concluding, we interpreted the Act as
the legislature instructed us to do, and determined stay-away
orders may prohibit a variety of contact, including nonphysical
contact, when it threatens the purpose of the Act. Olsson, 335
Ill. App. 3d at 375, 780 N.E.2d at 819.
Here, defendant makes the same argument as the defen-
dant in Olsson. We decline defendant's invitation to depart from
our rationale in Olsson.
Defendant also argues the form order does not modify
the statute and thus cannot provide the basis for a criminal
conviction. While we acknowledge a preprinted form created by
the court does not have the same authority as legislation, "the
[Code] incorporates by reference a trial court's order as an
element of the offense. In essence, the trial court's order
becomes a part of the statutory language defining the offense of
violating an order of protection." People v. Davit, 366 Ill.
App. 3d 522, 527, 851 N.E.2d 924, 928 (2006). Further, the
legislature instructed the judiciary to carry out its intent when
construing the Act. The Conference of Chief Circuit Judges did
so by creating the form used in this case. Section 2 of Part A
of the form coincides with section 214(b)(3), the stay-away
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provision of the Act. Within the stay-away portion of the form,
subpart (a) deals with the person, subpart (b) deals with the
residence, subpart (c) deals with communication, and subpart (d)
deals with buildings, such as place of employment and school,
that defendant is banned from while Brandy is present. The
format the Chief Circuit Judges chose indicates the intent to
include "residence" in the section 214 stay-away provision at the
election of petitioner, an option Brandy chose. We find by
limiting defendant's proximity to Brandy's residence, the form
carries out the legislature's intent of reducing defendant's
access to Brandy.
The State argues a Brandy's residence is qualitatively
different from a school, workplace, or other similar places. On
the other hand, defendant contends if Brandy sought to keep
defendant 1,000 feet from her residence, the appropriate remedy
was subpart (d), which provides a line to write in locations
other than school or the workplace. We agree with the State a
residence is distinguishable from the types of buildings subpart
(d) encompasses and thus warrants a separate category. The Act's
language provides support for this conclusion.
As the State points out, under the doctrine of ejusdem
generis, we read "other things" to include other similar things.
People v. Diggins, 379 Ill. App. 3d 994, 996, 888 N.E.2d 129,
132-33 (2008). The first paragraph of section 214(b)(3) orders
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defendant to stay away from Brandy or, when Brandy is present,
"prohibit[s] respondent [(defendant)] from entering or remaining
present at petitioner's [(Brandy's)] school, place of employment,
or other specified places." 750 ILCS 60/214(b)(3) (West 2006).
A residence is a personal space afforded more privacy and sanc-
tity than public venues such as schools and office buildings. In
the context of domestic violence, the residence is especially
significant as intrafamily abuse often occurs inside the privacy
of the home. Further, subpart (d) remedies apply only when
Brandy is present, which creates the risk of Brandy encountering
the abuser when Brandy is traveling to and from the residence.
For these reasons, we do not find the legislature intended the
residence to be considered an "other specified place" from which
defendant could be banned only when Brandy was present.
Instead, we read the second paragraph of section
214(b)(3) to include the residence within the stay-away provi-
sion. 750 ILCS 60/214(b)(3) (West 2006). The second paragraph
states "[i]f an order of protection grants petitioner exclusive
possession of the residence, or prohibits respondent from enter-
ing the residence, or orders respondent to stay away from peti-
tioner or other protected persons, then the court may allow
respondent access to the residence to remove [personal] items."
750 ILCS 60/214(b)(3) (West 2006). Thus, defendant needs court
approval to enter the household to retrieve personal items if the
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order of protection requires defendant to stay away from Brandy.
Court approval is necessary even if the order does not grant
Brandy exclusive possession of the residence or specifically
prohibit defendant from entering the residence. The form used in
this case reflects this interpretation as it provides two dis-
tinct spaces for specifying the distance from Brandy and the
distance from Brandy's residence. Four years have passed since
the order-of-protection form in this case became effective, and
the legislature has not amended the Act in reaction to it. We
conclude the order of protection correctly extended the stay-away
provision to the residence.
Given the legislative intent--the alleviation of fear
of losing accessible housing (750 ILCS 60/102(4) West 2006)) and
the expansion of the victim's criminal remedies to effect physi-
cal separation from the abuser (750 ILCS 60/102(6) (West 2006))--
defendant's violation of the order of protection warrants crimi-
nal liability in this case.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment and remand for further proceedings not inconsistent with
this order.
Reversed and remanded with directions.
McCULLOUGH, P.J., concurs.
STEIGMANN, J., dissents.
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JUSTICE STEIGMANN, dissenting:
Although I agree with the substance of the majority's
opinion, I do not agree that this court has jurisdiction to reach
the merits.
Defendant was convicted by a jury of violating an order
of protection. Thereafter, he filed a motion for judgment
n.o.v., which the trial court granted. It is that ruling that
the State purports to challenge in this appeal.
Supreme Court Rule 604(a)(1) (210 Ill. 2d R. 604(a)(1))
sets forth the limited circumstances in which the State may
appeal in a criminal case. The only one that arguably could
apply here is the State's appeal from an order "arresting judg-
ment because of a defective indictment, information[,] or com-
plaint." 210 Ill. 2d R. 604(a)(1). (See section 116-2 of the
Code of Criminal Procedure of 1963 (725 ILCS 5/116-2 (West
2006)), defining motions in arrest of judgment.) Rule 604(a)(1)
says nothing about appeals from the granting of a defendant's
motion for judgment n.o.v., which is closely akin to a defen-
dant's motion for a directed verdict at the close of the State's
case.
In this case, defendant made a motion for directed
verdict at the close of the State's case based upon the same
grounds he later asserted in his motion for a judgment n.o.v.
Had the trial court granted defendant's motion for directed
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verdict, I do not believe the State could have appealed that
ruling no matter what reason the trial court gave for making it.
This same analysis should apply to defendant's motion
for judgment n.o.v. Although the trial court may have explained
its ruling by noting that, in the court's opinion, the charge
failed for technical reasons to state a crime, that explanation
does not trump the essential fact that the court's granting of
either a motion for directed verdict or a motion for judgment
n.o.v. constitutes an acquittal.
Another way of looking at this situation is to note
that when the trial court granted the motion for judgment n.o.v.,
it did not need to provide any explanation. Had it not done so
and instead simply said, "Motion granted," the State would be
hard pressed to come up with any colorable argument justifying an
appeal from that ruling. That the trial court here chose to
explain its ruling cannot serve as a basis upon which this court
can assert jurisdiction that it would not otherwise possess.
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