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12/15/88 the People of the State of v. Daniel R. Embry

December 15, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DANIEL R. EMBRY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

531 N.E.2d 1130, 177 Ill. App. 3d 96, 126 Ill. Dec. 503 1988.IL.1814

Appeal from the Circuit Court of De Witt County; the Hon. Stephen H. Peters, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion the court. McCULLOUGH, P.J., and LUND, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Defendant was convicted of child abduction in violation of section 10-5(b)(10) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 10-5(b)(10)) and sentenced to two years' probation. Defendant appeals contending the child abduction statute creates an impermissible mandatory rebuttable presumption with respect to an element of the offense, namely intent, which requires reversal of his conviction. Alternatively, defendant argues he is entitled to a new trial because error was committed in the admission of evidence of other criminal conduct.

At defendant's bench trial the State offered evidence that the victim, a 12-year-old, seventh-grade female student, and a 13-year-old female companion were walking home from school on September 1, 1987. An automobile, driven by defendant, approached and stopped immediately adjacent to the area where the girls were walking. According to the girls, defendant stated: "Get in the damn car right now." Frightened, the girls ran from the car with one of them dropping a school folder as they fled.

The 12-year-old girl's parents each testified they had not given defendant consent to pick up their daughter in his automobile.

The State also presented evidence of an incident occurring four days earlier involving a 17-year-old female high school student. While walking home from school, defendant drove his car beside her and said: "Hey, baby, you want a ride?" The girl did not respond and continued walking. Defendant followed her in his car for a short distance before again addressing her with the remark: "I can really show you a good time."

In his defense, defendant admitted while driving home after work on September 1, 1987, he stopped and talked with the two grade school girls. He testified he saw one of the two girls drop a folder, drove up, honked his horn and said: "You just dropped something back there." When he repeated the statement because the girls did not understand what he was saying, they began running from him. Defendant then drove away, testifying he realized he must have frightened them. He denied he invited the girls into his automobile, threatened them, or made the statement attributed to him by both girls.

In rebuttal, the companion of the victim testified the green folder was dropped only after the girls began running from defendant.

Defendant argues the child abduction statute violates due process by creating a mandatory rebuttable presumption that defendant's intent to entice the girls into his automobile was for other than a lawful purpose. That portion of the statute with which defendant was charged provides a person commits the offense of child abduction when he:

"Intentionally lures or attempts to lure a child under the age of 16 into a motor vehicle without the consent of the parent or lawful custodian of the child for other than a lawful purpose.

For the purposes of this subsection (b), paragraph (10), the luring or attempted luring of a child under the age of 16 into a motor vehicle without the consent of the parent or lawful custodian of the child shall be prima facie evidence of other than a ...


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