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03/08/94 PEOPLE STATE ILLINOIS v. WARREN WENGER

March 8, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
WARREN WENGER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Ronald J.P. Banks, Judge Presiding.

Petition for Leave to Appeal Denied June 2, 1994.

Buckley, Campbell, Manning

The opinion of the court was delivered by: Buckley

JUSTICE BUCKLEY delivered the opinion of the court:

Following a bench trial, defendant Warren Wenger was found guilty of child abduction. The trial Judge sentenced defendant to three years imprisonment in the Illinois Department of Corrections. On appeal, defendant contends: (1) that the prosecutor's inability to prove the elements of unlawful intent and an attempted entry into a car requires reversal of the conviction for child abduction; (2) that the statute defining the offense of child abduction, as applied to defendant, created an unconstitutional presumption that he was acting "for other than a lawful purpose;" (3) that the child abduction statute violates the Illinois Due Process Clause by including "attempt" within the completed offense and by proscribing behavior not within the scope of the legislative interest; (4) that defendant's conviction for the completed crime of child abduction based on an "attempt" violated the proportionate penalties provision of the Illinois Constitution, the equal protection clause of the Federal Constitution, and the principle of separation of powers; and (5) that the "attempt luring" provision of the child abduction statute is unconstitutionally vague under Federal due process guarantees by subjecting persons engaging in innocent behavior to criminal prosecutions and by leaving Judges or juries to decide arbitrarily what is prohibited.

In November 1991, defendant was charged with one count of child abduction for attempting to lure A.T., a child under the age of 16 years, into a motor vehicle without parental consent for other than a lawful purpose. The State's case consisted of the testimony of A.T., M.P., and Bob Leamy.

According to the testimony of M.P., A.T.'s 15-year-old stepsister, on September 17, 1991, at approximately 7:45 p.m., she and A.T. were riding their bicycles when they stopped about a block from home in the mouth of an alley to speak to Bob Leamy, a 17-year-old friend. M.P. stated that it was "dark out" and that, as they were speaking, a black and yellow jeep without its headlights on drove down the alley "pretty fast" toward them. M.P. testified that she and A.T. then rode off on their bicycles. M.P. further stated that she had seen the jeep before. She said that on July 1, 1991, she was sitting alone on the steps of her mother's apartment when she observed defendant pass by three times. According to M.P., the jeep then stopped in front of her and she "went upstairs to tell [her] mother."

M.P. testified that after they left the alley, she and A.T. rode "to my right and just left" toward the home of their friends, the D'Amadios'. When they left the D'Amadios' home and rode back down 59th street, M.P. stated that she saw defendant again from about 10 feet as he pulled his jeep out of his friend's driveway on 59th street. She stated they then turned their bicycles around and rode up 59th street toward Austin. According to M.P. when they turned down Austin, they saw the jeep for the third time as it came out of the alley behind defendant's friend's home and came toward them. They then turned down 25th street toward 59th street and saw defendant driving down a different alley. They turned back down 59th street toward 25th street again and at that moment they encountered M.P.'s father. M.P. further testified that defendant did not signal to her or make any motions toward her or speak to her. She also stated that the jeep was "not following us but cutting us off."

A.T., the 12-year-old victim, testified that she and M.P. were speaking to Bob Leamy in the mouth of an alley when she saw the black and yellow jeep drive toward them down the alley without its headlights on. According to A.T., she then drove toward Austin street to the "Damatos'" home. She said she was not with M.P. She then stated she was still alone when she left the "Damatos'" home and drove toward "an alley behind [M.P.'s] apartment." She stated that she was riding down 25th street and was "starting to go down [M.P.'s] street" when she "stopped because I seen his jeep sitting there." A.T. testified that the jeep was parked in the street and defendant was in the driver's seat speaking to some girls. She stated that he then motioned three times for her to come toward him and she turned and rode away "trying to find [M.P.]." She testified that she was approximately five car lengths away and defendant did not say anything to her. According to A.T., she then met up with M.P. and her father who was driving down the street.

Bob Leamy, a 17-year-old high school student, testified he was a friend of M.P.'s. He stated that he was talking with M.P. and A.T. in the mouth of the alley for approximately five to 10 minutes when a black and yellow jeep without its headlights on came down the alley towards them. He said that the girls rode off and told him that "if somebody comes looking for us, you haven't seen us." According to Leamy, the jeep pulled up and the driver asked him if he had seen two girls on bicycles. Leamy stated that he responded by saying, "I seen them, but I didn't know where they went." Leamy testified that the jeep then made a left out of the alley and then made another left down 59th street. Leamy was unable to identify defendant as the driver of the jeep.

After Leamy's testimony the State rested and defendant moved for a directed verdict on the grounds that the State failed to provethe charge of child abduction beyond a reasonable doubt. Defendant contended that the State introduced insufficient evidence to prove that he "intentionally attempted to lure A.T. into a car." Additionally, he asserted that no testimony had been introduced on the issue of consent which was an element of the offense. The trial Judge denied the motion without comment.

Defendant then testified in his own defense. He stated that on September 17, 1991, at approximately 7:45 p.m., he was visiting his friend Tim Sepanik. Sepanik's house was in the middle of the block bordered in the front by 59th street and in the back by the alley in question. He stated that he parked in the alley behind Sepanik's house, but the gate was locked. Therefore, he restarted his car, turned the lights on and pulled out of the alley. He stated that he drove around to the front of the house, parked in Sepanik's driveway, and went inside. According to defendant, Sepanik was eating supper "so then I just left again." Defendant stated that he visits his friend "almost every night."

Defendant denied following M.P. and A.T. around that night and, in fact, denied even seeing them. He admitted, however, that he had seen A.T. once before. He then recounted his version of the events on July 1, 1991. He stated that he saw A.T. sitting on the sidewalk and he smiled at her as he drove past. He testified that while he was at the gas station A.T.'s mother arrived and asked him what he was doing with her daughter and threatened to press charges against him. He asserted, however, that he had never been convicted of any misdemeanors or felonies.

He also denied ever seeing Bob Leamy. He asserted that if Leamy was in the alley, "he must have been behind me and I didn't see him." He denied ever motioning for the girls to come over to his car. He also denied knowing the girl's mother and admitted that he did not have permission to pick them up in his jeep. He asserted that he went straight home from Sepanik's house and was sitting in his jeep ...


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