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04/21/95 PEOPLE STATE ILLINOIS v. DAVID A. HOLT

April 21, 1995

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DAVID A. HOLT, JR., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 10th Judicial Circuit Peoria County, Illinois. No. 93-CF-961. Honorable Robert E. Manning Judge, Presiding.

Released for Publication May 23, 1995.

Present - Honorable Tom M. Lytton, Justice, Honorable William E. Holdridge, Justice, Honorable Kent Slater, Justice. Holdridge and Slater, JJ., concur.

The opinion of the court was delivered by: Lytton

The Honorable Justice LYTTON delivered the opinion of the court:

Defendant, David A. Holt, Jr., appeals his conviction for stalking under paragraph 12-7.3(a)(2) of the Illinois Criminal Code (720 ILCS 5/12-7.3(a)(2) (West Supp. 1993)) following a bench trial. We affirm.

FACTS

Defendant and the victim, M.S., dated from January 1993 until mid-August 1993, when M.S. ended the relationship. M.S. testified that defendant became angry and verbally abusive at that time, threatening to "make it so that [she] couldn't live in Peoria any more, and *** that [she] would have to deal with him the rest of [her] life, whether [she] married him or not." Defendant also stated that although he "might not do anything, *** you never know what [his] friends might do."

M.S. testified that defendant called her the next day and argued that they should not end the relationship. When M.S. disagreed, defendant renewed his prior threats, reminding M.S. of the unpredictable nature of his friends and his intention to do all he could to force her to move away from Peoria because chance meetings would be too painful for him. Two weeks later, defendant proposed marriage to M.S., but she refused his offer.

Defendant also made a series of telephone calls to Tammy Ford, a mutual acquaintance, seeking advice on how to win M.S. back. Over the course of these conversations, Ford became increasingly concerned about defendant's deteriorating and depressed mental state. When defendant told Ford that "if he could not have [M.S.] then no one would have her", Ford reported the conversation to M.S. out of concern for her safety. M.S. immediately told defendant that she wanted no further contact with him.

The trial court found that between August and early December 1993, defendant "became obsessed with prank calls to M.S., making perhaps as many as 200, as well as becoming bent on a course of conduct whereby he sent her cards, put in her mail box small picture posters of M.S. alleging she had genital herpes, pasted on her car bumper stickers with her name emblazoned upon them, associating her with genital herpes. Defendant even went so far as to place a sign in the yard of M.S.'s parents in Barrington, Illinois, stating 'get your genital herpes here.'" In response to these acts, M.S. obtained an order of protection against defendant on December 10, 1993.

Defendant and M.S. had two inadvertent meetings in public after December 10, 1993, but these incidents were inconsequential. On Friday, February 25, the first of the incidents that formed the basis for the present stalking charge occurred when M.S. saw defendant at the Owens Recreation Center, the only ice skating facility in Peoria. On that date, M.S. was leaving the ice rink at the end of her private skating time and saw defendant lacing up his skates. She testified that she became frightened because defendant had never shown any interest in skating during their relationship and she feared that he would try to harm her or restrict her movement.

On the following Monday, M.S. noticed defendant watching her from outside the rink for 40 minutes of her 45-minute private skating session. Similar incidents began to occur on other Fridays and Mondays. M.S. noted that defendant arrived at the ice rink up to 30 minutes before the start of the scheduled public skating time on March 4th, March 7th, and March 28. In each instance, defendant stared at M.S. through the window of the observation area adjoining the ice rink for the remainder of her private skating session. M.S. testified that she was frightened each time she saw defendant at the ice rink.

Defendant was initially charged with two counts of stalking under section 12-7.3(a) of the Illinois Criminal Code (720 ILCS 5/12-7.3(a)(1),(2) (West Supp. 1993)). He was arraigned on these charges on January 27, 1994, approximately one month before the incidents at the skating rink began. The two original counts were later dismissed with leave to reinstate, and two new stalking counts were added, based on the events at the Owens Recreation Center. At the close of the state's case in the bench trial, the trial court acquitted defendant of count III of the indictment, which required transmission of a threat (720 ILCS 5/12-7.3(a)(1) (West Supp. 1993)). The trial continued on count IV, which required placing the victim under surveillance and "in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement or restraint" (720 ILCS 5/12-7.3(a)(2) (West Supp. 1993)). After closing arguments were completed, the trial court found defendant guilty on count IV of the stalking charge.

Defendant filed a motion to reconsider; the trial court denied the motion and sentenced him to four months in prison and 30 months probation, with the first six months being intensive and the first three months including electronic monitoring. Defendant was also sentenced to perform 150 hours of public service work and to pay $1,145.00 in restitution. Defendant appeals.

I. STATUTORY INTERPRETATION

Defendant was convicted under section 5/12-7.3(a)(2) of the Illinois Criminal Code of 1961, which states:

"A person commits stalking when he or she, knowingly and without lawful justification, on at least 2 separate occasions follows another person or places the person under surveillance or any combination thereof and *** places that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement or restraint." (720 ILCS 5/12-7.3(a)(2) (West Supp. 1993).)

The stalking statute specifies that a defendant "'places a person under surveillance' by remaining present outside the person's school, place of employment, vehicle, other place occupied by the person, or residence other than the residence of the defendant." (Emphasis added.) 720 ILCS 5/12-7.3(d) (West Supp. 1993).

Defendant argues that this language is clear and the trial court improperly construed the statute's "remaining present outside" requirement to include instances in which the defendant and the victim are inside the same primary structure, in this case, the Owens Recreation Center. Defendant claims that this interpretation impermissibly expands the prohibited conduct beyond that specified by the statute.

In construing a criminal statute, we seek to ascertain the legislature's intent; the statutory language itself provides the best guide to legislative intent. ( People v. Krawiec (1994), 262 Ill. App. 3d 152, 160, 634 N.E.2d 1173, 1179, 199 Ill. Dec. 819; People v. Boykin (1983), 94 Ill. 2d 138, 141, 445 N.E.2d 1174, 1175, 68 Ill. Dec. 321.) If the language is clear, we must apply its plain and ordinary meaning; if it is unclear, we must also consider the purpose of the law and the "evils the statute seeks to remedy." ( Krawiec, 262 Ill. App. 3d at 160, 634 N.E.2d at 1179; see People v. Frieberg (1992), 147 Ill. 2d 326, 349, 589 N.E.2d 508, 519, 168 Ill. Dec. 108.) The statute's legislative history may be useful in this determination. ( Krawiec, 262 Ill. App. 3d at 160, 634 N.E.2d at 1179.) We believe that the "remaining present outside" language in the stalking statute requires judicial construction because its application is not clear and unambiguous.

The legislative intent in enacting the stalking statute was to prevent violent attacks by prohibiting conduct that may precede them. The statute was also intended to avert the terror, intimidation, and justifiable apprehension caused by the harassing conduct itself. ( Krawiec, 262 Ill. App. 3d at 160, 634 N.E.2d at 1179; Gregory W. O'Reilly, Illinois' Stalking Statute: Taking Unsteady Aim at Preventing Attacks, 26 J. Marshall L. Rev. 821, 835 (1993) (hereinafter O'Reilly, Illinois' Stalking Statute).) Too often the obsession underlying the stalking behavior is a forewarning of future violence against the victims and their families. O'Reilly, Illinois' Stalking Statute, 26 J. Marshall L. Rev. at 836 & n.109 (listing highly publicized stalking incidents); Brenda K. Harmon, Comment, ...


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