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12/21/87 the People of the State of v. Philip J. Caruso

December 21, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

PHILIP J. CARUSO, APPELLANT



SUPREME COURT OF ILLINOIS

519 N.E.2d 440, 119 Ill. 2d 376, 116 Ill. Dec. 548 1987.IL.1882

Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. Robert A. Nolan, Judge, presiding.

APPELLATE Judges:

JUSTICE MORAN delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

Defendant, Philip J. Caruso, was charged in separate two-count indictments in the circuit court of Du Page County with the offenses of child abduction (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 10-5(b)(1)) and unlawful restraint (Ill. Rev. Stat. 1977, ch. 38, par. 10-3) involving his two daughters, Kathleen and Deborah. Defendant filed several motions to dismiss the child abduction counts, including one motion based on an ex post facto objection and another asserting that Illinois lacked subject-matter jurisdiction. The circuit court dismissed the child abduction counts, finding them to be an unconstitutional ex post facto application of the law. The ex post facto and subject-matter jurisdiction objections were both addressed on appeal. The appellate court reversed, finding that the law was not applied ex post facto and that Illinois has criminal jurisdiction over the child abduction counts. (152 Ill. App. 3d 1074.) We allowed the defendant's petition for leave to appeal under Rule 315 (107 Ill. 2d R. 315).

Defendant did not address the ex post facto objection in his brief before us and conceded at oral argument that he was abandoning his ex post facto objection; therefore, the only issue presented for review is whether Illinois may assert criminal jurisdiction over defendant's conduct where the defendant harbored his children outside of this State and failed to return them to their mother in violation of a court order of this State.

Inasmuch as the child abduction counts were dismissed, this cause raises a question on the pleadings. The child abduction counts at issue in this appeal charge that on December 24, 1984, within Du Page County, defendant "intentionally violated the terms of a valid court order entered December 20, 1977, in the Eighteenth Judicial Circuit, Du Page County, granting sole custody of [Kathleen and Deborah] to Janet Faye Caruso in that said defendant detained the [children] outside the jurisdiction of the court." The State does not dispute that defendant removed the children from Illinois in 1977 and that defendant and the children resided in Ohio from that time until at least through December 24, 1984, the date the indictment for the offense of child abduction was returned.

Defendant argues that any allegedly criminal conduct of his was committed in Ohio, not Illinois, and therefore is not subject to this State's criminal jurisdiction. In defendant's view, the failure to abide by the terms of a valid court order of custody, although an element of the offense of child abduction, is not the gist of the offense of child abduction. Defendant asserts to the contrary that the commission of the act of taking, concealing or detaining the child is the gist of the offense. Therefore, according to defendant, the jurisdictionally significant act -- the detaining of the children -- took place in Ohio, where defendant lived with the children from 1977 through 1984. Defendant concludes that Illinois cannot assert criminal jurisdiction over him because his conduct occurred entirely outside Illinois and he could not form any intent or commit any act that was criminal while he was in Illinois.

The State responds that the failure to return the children in compliance with the court order can be characterized as an omission to perform a duty imposed by Illinois law and is, therefore, regarded as being committed within Illinois pursuant to section 1-5(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 1-5(c)), regardless of defendant's location at the time of the omission. The State also maintains that an element of the offense of child abduction is the intentional violation of the court order, which is committed within Illinois no matter where the defendant may be located, and jurisdiction is thus conferred under section 1-5(a)(1) (Ill. Rev. Stat. 1985, ch. 38, par. 1-5(a)(1)).

The jurisdiction of the circuit courts is conferred by the provisions of section 9 of article VI of the Illinois Constitution, which provides that the circuit courts have "original jurisdiction of all justiciable matters" (Ill. Const. 1970, art. VI, § 9), and section 1-5 of the Criminal Code (Ill. Rev. Stat. 1985, ch. 38, par. 1-5). (See People v. Gilmore (1976), 63 Ill. 2d 23, 26.) Section 1-5 provides in relevant part:

"(a) A person is subject to prosecution in this State for an offense which he commits, while either within or outside the State, by his own conduct or that of another for which he is legally accountable, if:

(1) The offense is committed either wholly or partly ...


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