People v. Crabtree , 2015 IL App (5th) 130155 ( 2015 )

Illinois Official Reports
Appellate Court
People v. Crabtree, 2015 IL App (5th) 130155
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ISSAC B. CRABTREE, Defendant-Appellant.
District & No. Fifth District
Docket No. 5-13-0155
Filed July 30, 2015
Decision Under Appeal from the Circuit Court of Richland County, No. 12-CF-92; the
Review Hon. Larry D. Dunn, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Jacqueline L. Bullard, and Allen H. Andrews, all
Appeal of State Appellate Defender’s Office, of Springfield, for appellant.
David Hyde, State’s Attorney, of Olney (Patrick Delfino, Stephen E.
Norris, and Patrick D. Daly, all of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with
opinion.
Presiding Justice Cates and Justice Chapman concurred in the
judgment and opinion.
OPINION
¶1 After a jury trial in the circuit court of Richland County, defendant, Issac B. Crabtree, was
convicted of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2010)) in
that defendant, who was 17 years or older, placed his hand on the body near the vagina of R.F.,
the victim, who was under 13 years of age. Defendant was sentenced to 180 days in the county
jail and a term of 48 months’ probation. As conditions of his probation, defendant was ordered
inter alia to (1) refrain from communicating with or contacting via the Internet any person he
reasonably believes is under 18 years of age and not related to him, (2) refrain from accessing
or using a social networking website, and (3) not use any computer “scrub” software on a
computer that he uses. The issue raised in this appeal is whether the three conditions of
defendant’s probation which restrict his use of computers are proper in light of the fact that a
computer was not used in the commission of the underlying offense. We affirm.
¶2 FACTS
¶3 On March 11, 2012, defendant, age 22, was charged with aggravated criminal sexual abuse
after the victim (date of birth September 12, 2001) told her fourth-grade teacher that defendant
inappropriately touched her. Defendant was a friend of the victim’s family and previously
lived with the family for over a year, oftentimes babysitting for the victim and her younger
sister. At the time of the alleged offense, however, defendant had moved out of the home after
the victim’s mother and stepfather had another baby and their house became too small.
¶4 On the day of the alleged incident, the victim’s family held a cookout, and there were
several guests, including defendant. Because defendant did not have a ride home, the victim’s
family invited him to spend the night on the couch and the victim’s mother offered to drop him
off at his home the next morning on her way to work. Several witnesses testified that it was
common for defendant to spend the night.
¶5 The victim testified she shared a room with her younger sister and was asleep on her
mattress in their bedroom when she woke up after hearing her blanket rustle. She felt a hand
moving inside her underwear by her vagina. She said she “squinted” her eyes and saw
defendant on his knee by her bed. She was frightened and was not sure what to do. Ultimately,
she lurched up, causing defendant to jump up and twirl one way and then another and jump out
of her room. The following morning she woke up to go to school and defendant was asleep on
the couch. Defendant woke up and made a hand gesture toward her in which he pointed his
index finger at her and moved his thumb and said, “Bang.”
¶6 The victim testified she gave defendant a “mean” look and stomped her foot. The victim
then went to school. The victim testified she was scared and did not tell her mother or
stepfather what happened during the night. At school, she asked to talk privately with her
teacher and told her teacher defendant touched her inappropriately. The teacher took the victim
to the school nurse. The authorities were notified, and a police officer interviewed the victim at
the Child Advocacy Center. The interview was recorded on a DVD and played for the jury.
¶7 The victim’s mother and stepfather testified. The victim’s stepfather, who admitted he was
previously convicted of aggravated robbery, testified that several weeks before the incident in
question defendant babysat the children while he and his wife went out for drinks. After
coming home, the stepfather passed out on the couch. At some point, he woke up and saw
-2-
defendant walking down the hallway into the victim’s room. Ultimately, he found defendant
standing near his younger daughter’s bed. Defendant explained that the daughter dropped her
blanket and he was covering her.
¶8 The victim’s mother testified she did not notice anything unusual about the victim’s
behavior the morning after the cookout. She testified she was not feeling well and called in sick
to work. Her husband took her to the clinic to see a doctor and they dropped defendant off at his
home on their way back from the clinic.
¶9 After learning about the victim’s allegations, defendant agreed to be interviewed by the
police. The interview was recorded on a DVD and played for the jury. During the interview,
defendant denied inappropriately touching the victim. At trial, defendant testified in his own
defense. He again denied touching the victim. He admitted he was in the victim’s room on the
night in question, but explained he was looking for the victim’s sister, who was not in her bed.
¶ 10 After hearing all the evidence, the jury convicted defendant of the offense. The trial court
sentenced defendant to 180 days in jail and 48 months’ probation. The trial court also ordered
defendant to comply with numerous conditions contained on a preprinted form titled
“Supplemental Order of Conditions of Probation for Sex Offenses,” including the following
three conditions:
“4. COMMUNICATING BY INTERNET. If convicted of an offense committed
on or after June 1, 2008[,] that would qualify defendant as a child sex offender as
defined in Section 11-9.3 or 11-9.4 of the Criminal Code of 1961, you shall refrain
from communicating with or contacting, by means of the Internet, a person who is not
related to you and whom you reasonably believe to be under 18 years of age; for
purposes of this paragraph, ‘Internet’ has the meaning ascribed to it in Section 16J-5 of
the Criminal Code of 1961; and a person is not related to you if the person is not: (i)
your spouse, brother, or sister; (ii) a descendent of yours; (iii) a first or second cousin;
or (iv) your step-child or adopted child;
***
6. SOCIAL NETWORKING WEBSITES PROHIBITED. If convicted of a sex
offense as defined in the Sex Offender Registration Act [(730 ILCS 150/1 et seq. (West
2010))] committed on or after January 1, 2010, you shall refrain from accessing or
using a social networking website as defined in Section 16D-2 of the Criminal Code of
1961 [(720 ILCS 5/16D-2 (West 2010) (repealed by Pub. Act 96-1551, art. 5, § 5-6
(eff. July 1, 2011))). Social networking website is now defined by section 17-0.5 of the
Criminal Code of 2012. 720 ILCS 5/17-0.5 (West 2012)].
***
8. SCRUB SOFTWARE PROHIBITED. If convicted of a sex offense as defined
in Section 2 of the Sex Offender Registration Act committed on or after January 1,
2010, that requires the person to register as a sex offender under that Act, the defendant
may not knowingly use any computer scrub software on any computer that the sex
offender uses.”
In this direct appeal, defendant does not challenge his conviction, but objects to the above three
conditions of probation.
-3-
¶ 11 ANALYSIS
¶ 12 The issue on appeal is whether the three conditions of defendant’s probation restricting his
use of computers are proper in light of the fact that a computer was not used in the commission
of the underlying offense. Defendant contends the conditions are not mandatory, and, even if
they are, the statute is unconstitutional as applied to him. Defendant insists the conditions are
overly broad because he did not use a computer to commit the offense and, therefore, the trial
court abused its discretion in imposing them. After careful consideration, we agree with the
State that the conditions of probation are mandatory, and, further, they are not unconstitutional
as applied to defendant.
¶ 13 Section 5-6-3(a) of the Unified Code of Corrections (Code) specifically provides for the
three conditions of probation now in question as follows:
“(a) The conditions of probation and of conditional discharge shall be that the
person:
***
(8.7) if convicted for an offense committed on or after June 1, 2008 (the
effective date of Public Act 95-464) that would qualify the accused as a child sex
offender as defined in Section 11-9.3 or 11-9.4 of the Criminal Code of 1961 or the
Criminal Code of 2012, refrain from communicating with or contacting, by means
of the Internet, a person who is not related to the accused and whom the accused
reasonably believes to be under 18 years of age; ***
***
(8.9) if convicted of a sex offense as defined in the Sex Offender Registration
Act committed on or after January 1, 2010 (the effective date of Public Act
96-262), refrain from accessing or using a social networking website as defined in
Section 17-0.5 of the Criminal Code of 2012;
***
(11) if convicted of a sex offense as defined in Section 2 of the Sex Offender
Registration Act committed on or after January 1, 2010 (the effective date of Public
Act 96-362) that requires the person to register as a sex offender under that Act,
may not knowingly use any computer scrub software on any computer that the sex
offender uses[.]” (Emphasis added.) 730 ILCS 5/5-6-3(a)(8.7), (8.9), (11) (West
2012).
We point out that subsection (a) specifically describes probationary conditions that “shall” be
imposed.
¶ 14 The primary rule of statutory interpretation is to determine legislative intent, the best
indicator of which is the statutory language, which should be given its plain and ordinary
meaning. Nowak v. City of Country Club Hills, 2011 IL 111838, ¶ 11, 958 N.E.2d 1021. In
general, use of the word “shall” indicates that the legislature intended to impose a mandatory
obligation. Schultz v. Performance Lighting, Inc., 2013 IL 115738, ¶ 16, 999 N.E.2d 331.
Subsection (b) of the statute specifically describes probationary conditions “[t]he Court may in
addition to other reasonable conditions” order. (Emphasis added.) 730 ILCS 5/5-6-3(b) (West
2012). Legislative use of the word “may” is generally recognized as indicating a permissive or
directory reading. When the legislature uses both “may” and “shall” in the same statute, we
may infer that the legislature knew the difference and intended each word to carry its ordinary
-4-
meaning. Commonwealth Edison Co. v. Illinois Commerce Comm’n, 2014 IL App (1st)
132011, ¶ 41 n.2, 16 N.E.3d 801.
¶ 15 Here, the three conditions complained of by defendant are specifically enumerated in
subsection (a), which uses the word “shall,” indicating the probationary conditions contained
therein are mandatory. The issue now becomes whether the conditions are unconstitutional as
applied to defendant. After careful consideration, we believe the conditions are reasonable and
the value to the public in imposing the restrictions outweighs any impairment to defendant’s
constitutional rights.
¶ 16 Probation serves as a form of punishment and as a method for rehabilitating the offender.
People v. Meyer, 176 Ill. 2d 372, 379, 680 N.E.2d 315, 318 (1997). A condition of probation is
permissible so long as there is some connection between the condition and the underlying
offense. People v. Whittington, 87 Ill. App. 3d 504, 506, 409 N.E.2d 150, 151 (1980). In
evaluating whether a probationer’s rights should be restricted, courts determine whether (1) the
condition of probation reasonably relates to the intended purpose of fostering rehabilitation,
(2) the value to the public in imposing the condition manifestly outweighs any impairment of
the probationer’s constitutional rights, and (3) there are any alternative means less subversive
to the probationer’s constitutional rights that would still comport with the purposes of the
legislation conferring the benefit of probation. In re J.G., 295 Ill. App. 3d 840, 843, 692 N.E.2d
1226, 1228-29 (1998).
¶ 17 Defendant fails to identify and we fail to find any protected constitutional right of a person
to use a computer, the Internet, or a social networking website. In support of removing the
conditions, defendant cites several federal cases, including United States v. Baker, 755 F.3d
515 (7th Cir. 2014), and United States v. Goodwin, 717 F.3d 511 (7th Cir. 2013). All are
distinguishable because they deal with discretionary conditions imposed upon supervised
release rather than mandatory conditions of probation imposed here pursuant to section
5-6-3(a) of the Code. In the instant case, although defendant’s crime did not include use of a
computer or a social networking website, it involved the sexual abuse of a young girl. Thus, the
conditions of probation appear reasonably related to the goals of deterrence, protection of the
public, and rehabilitation of defendant.
¶ 18 The first two probationary restrictions complained of essentially bar defendant from
making contact with an unrelated child through the use of a computer, while the third bars
defendant from using “scrub software” which could be used to destroy computer evidence of
violating the first two conditions. A review of the three conditions shows they are limited and
do not completely bar defendant from using a computer. For example, defendant can still apply
for jobs via the Internet or do general searches. What he cannot do is contact anyone unrelated
to him and under the age of 18, nor can he access social networking sites often used by minors.
Given the nature of the offense of which defendant was convicted, we do not believe these
mandatory conditions are unreasonable.
¶ 19 For the foregoing reasons, we hereby affirm the judgment of the circuit court of Richland
County.
¶ 20 Affirmed.
-5-