Appeal from the Circuit Court of Champaign County; the Hon.
Jeffrey B. Ford, Judge, presiding.
PRESIDING JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:
On November 28, 1984, the defendant, Chester G. Whitfield, Jr., pleaded guilty to a charge of violation of an Illinois Domestic Violence Act (Ill. Rev. Stat. 1983, ch. 40, par. 2301-1 et seq.) order of protection and was sentenced to conditional discharge for a period of 12 months. On October 28, 1985, the State filed a petition to revoke defendant's conditional discharge alleging that the defendant had harassed his ex-wife in violation of the order. The circuit court of Champaign County, after hearing evidence on the petition, revoked defendant's conditional discharge and sentenced him to 12 months' probation conditioned on 60 hours of public service work and 2 days' imprisonment.
Defendant appeals the order of the circuit court alleging two grounds for reversal. First, defendant maintains that his conduct of following his ex-wife in his automobile did not constitute harassment in violation of the Domestic Violence Act order of protection. Next, defendant asserts that provisions of the Illinois Domestic Violence Act which criminalize conduct which constitutes "harassing" are unconstitutionally vague in violation of the fourteenth amendment to the United States Constitution.
On November 28, 1984, the defendant pleaded guilty to violation of an order of protection and was subsequently sentenced to conditional discharge for a period of 12 months. On October 29, 1985, the State filed a petition to revoke conditional discharge alleging that defendant had again violated the Domestic Violence Act order of protection. The petition specifically alleged that defendant had harassed his ex-wife, Susan M. Gray, by following her in his automobile.
On December 3, 1985, a hearing was held on the State's petition. Gray testified that she was employed at the Carle Clinic in Urbana and that on August 14, 1985, at approximately 5:10 p.m. she left the clinic with a co-worker, Mary Carolyn Marlette, to go home. The two women were in Marlette's automobile and Marlette was driving with Gray sitting in the front passenger seat.
Gray stated that as they pulled out of the parking lot onto Park Street, they noticed the defendant drive by the parking lot while "grimacing and staring very intently at Marlette's car." Marlette turned onto Park Street approximately two car lengths behind the defendant's truck. The two women proceeded on Park Street to the intersection of Broadway and Park, at which point they turned right following the defendant as it was their regular route home. The defendant continued on Broadway to the intersection of University. At this point, Gray commented to Marlette that it was strange that the defendant had turned right on Broadway as he needed to turn left in order to go home. At University and Broadway, the defendant turned left and Marlette and Gray again followed as it was their usual route home. The two cars proceeded down University Avenue with the defendant's car in the lead. Gray testified that as they approached the intersection of University and Vine their car was in the far right lane. At this particular intersection there are four lanes: one to turn right; two lanes to continue on University Avenue; and, one lane to turn left. Gray stated that the defendant's car was in the center lane next to the left-hand turn lane and thus committed to continue on University Avenue or turn left onto Vine. After the women had turned right onto Vine Street, Gray testified that she observed the defendant turn very sharply out of the left-center lane to turn right onto Vine Street. Gray stated that the defendant followed their car for a few blocks at which point the women turned into the Urbana police station where they sought an escort home.
Mrs. Mary Carolyn Marlette also testified on behalf of the State corroborating Gray's testimony. Marlette stated that she became concerned as they left the Carle Clinic parking lot and "saw the gentleman staring at us in my car." She further stated that at the intersection of University and Vine, she saw the defendant's car in the center lane and that she specifically turned right because the defendant "was committed to go perfectly straight." After she turned, she looked in the rearview mirror and saw that the defendant had turned right and was coming their way.
The defendant testified in his own behalf stating that he had gone to the Carle Clinic on August 14 at approximately 5 p.m. to meet a friend, and that it was purely coincidental that he happened upon his ex-wife. He further testified that Marlette and Gray followed his car from the clinic to the intersection of University and Vine. He stated that he turned right onto Vine Street before the women who passed him shortly after he made the right-hand turn. The defendant acknowledged that he continued north on Vine Street behind the women for a few blocks until they turned into the Urbana police station. The defendant then stated that he continued on Vine Street to the Sunnycrest Standard Station to purchase gas. The defendant denied that he had purposely followed his ex-wife.
The court found the defendant's testimony concerning the routes he took and the amount of time it took him to be incredible. The court accepted Gray's version of the facts expressly stating that the credibility of the witnesses was a deciding factor in finding the defendant guilty of harassing Gray. The court found that the defendant's acts of turning right onto Vine Street from a center lane, and then following Gray, coupled with his earlier action of staring at her, would be worrisome to Gray causing her anxiety and discomfort. The court stated that causing someone to be worried, anxious, and uncomfortable was basically the definition of harassment. The court noted that defendant's actions were not coincidental and when he found his ex-wife he intentionally took action to follow her causing the women to deviate from their normal path home. The court concluded that the People had shown by a preponderance of the evidence that the defendant had violated a condition of his conditional discharge and that he did in fact harass Gray on the date in question.
• 1 In a hearing to revoke conditional discharge, the State has the burden of going forward and proving the violation by a preponderance of the evidence. (Ill. Rev. Stat. 1983, ch. 38, par. 1005-6-4(c).) Upon review, conflicting evidence alone will be insufficient to overrule a finding of a violation. (See People v. Crowell (1973), 53 Ill.2d 447, 292 N.E.2d 721; People v. Allegri (1984), 127 Ill. App.3d 1041, 469 N.E.2d 1126, aff'd (1985), 109 Ill.2d 309, 487 N.E.2d 606.) Since the trial judge is in a better position to weigh the credibility of ...