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December 21, 1995


Appeal from the Circuit Court of Cook County. Honorable Richard E. Neville, Judge Presiding.

As Modified on Denial of Rehearing January 25, 1996.

The Honorable Justice Theis delivered the opinion of the court: Cahill and O'brien, S., JJ., concur.

The opinion of the court was delivered by: Theis


The Honorable Justice THEIS delivered the opinion of the court:

Following a bench trial, the defendant was convicted of aggravated stalking (720 ILCS 5/12-7.4(a)(3) (West 1992)) and sentenced to five years in prison. On appeal, he challenges the constitutionality of the Illinois stalking and aggravated stalking statutes. (720 ILCS 5/12-7.3, 5/12-7.4 (West 1992).) He further claims that the trial court erroneously relied on an order of protection as the sole piece of evidence that the defendant threatened the victim. The Illinois Supreme Court has upheld the constitutionality of the stalking and aggravated stalking statutes, rejecting the same arguments that the defendant raises in the present appeal. ( People v. Bailey (1995), 167 Ill. 2d 210, 657 N.E.2d 953, 212 Ill. Dec. 608.) Therefore, we focus solely on the issue of whether an order of protection can serve as the sole piece of evidence of a threat, as the trial court found and as the State argues on appeal. We conclude that the mere existence of an order of protection did not constitute evidence sufficient to prove beyond a reasonable doubt that the defendant threatened the victim. Therefore, we reverse the defendant's conviction.

At trial, Julia Powell testified that she had been married to the defendant, Mario Soto, since 1982 and they had three children. She also testified that on September 4, 1992, she met her children at the train station because they had been visiting California with the defendant. Powell said that she later discovered that the defendant left some personal items among the children's things. At the time Powell and the defendant were living apart.

Around 5 p.m. on September 5, 1992, Powell received a phone call from the defendant. She testified that the defendant said that he wanted to see her. The defendant further said that he was coming to talk to her. Powell told him not to come and left the house. Powell testified that when she returned home at 9 p.m., she saw the defendant walking toward her. She testified that the defendant grabbed her arm and wrist demanding his belongings. Powell pulled away from him and called the police. She testified that she did not have the defendant's personal items in her possession at that time.

On September 6, 1992, Powell and her son Mario drove to the home of Powell's friend, Debra Wilson. As Powell stood outside of the car calling to her friend, she turned and saw the defendant running toward her. She then began running toward Wilson's house, but the defendant grabbed her arms and wrist. He again demanded his belongings. She testified that she screamed at the defendant to let her go, but he pulled out a small, dark gun and said that he had something for her. He then took a clip out of his pocket and tried to place it in the gun. Powell ran upstairs into Wilson's home.

From a window, Powell watched as the defendant rummaged through her car. He then smashed nearly all of her car windows with a crowbar and pulled out wires from under the hood. The defendant left the scene with a friend. Later, Powell discovered that her telephone book and an order of protection were missing from her car. On cross-examination, Powell denied that the gun merely fell onto the ground.

Next, Debra Wilson, Mario Powell, and two police officers testified on behalf of the State. Their testimony substantially corroborated that of the victim.

The State also submitted an order of protection dated May 18, 1992, which the court entered into evidence. The order does not state the reason that it was issued and the State presented no testimony concerning the circumstances leading up to the issuance of the order. The State then rested.

Testifying on his own behalf, the defendant stated that when Powell met him at the train on September 4, 1992, he left one of his bags in her car and she agreed to return it the following day. He also testified that Powell gave him a ride to a friend's house, and that he left his gun with her because he did not want to bring it along.

The defendant explained that on September 5, 1992, he called Powell around 5 p.m. to ask for his things, indicating that he planned to go to her home. He testified that Powell told him not to come. He then went to Powell's residence, but did not see her and left. The defendant testified that he later returned to retrieve a wallet that he lost during the first visit. He stated that as he left the house he saw Powell pulling up in her car. He stated that Powell returned the gun he had ...

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