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09/12/96 PEOPLE STATE ILLINOIS v. MIGUEL CORTEZ

September 12, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MIGUEL CORTEZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 94-CR-13410. Honorable Edward M. Fiala, Jr., Judge Presiding.

Released for Publication March 13, 1997.

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

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

Following a bench trial, defendant was convicted of stalking and sentenced to probation. On appeal, defendant argues that the stalking statute is unconstitutional on its face and its application to him violated ex post facto constitutional guarantees.

The evidentiary matters are not in dispute. Defendant and Adriana Arce (Arce) lived together for several years and had one child. On June 14, 1993, a disagreement occurred between them. Defendant pummeled and threatened Arce, and said that he would take their child. As a result, Arce took their child and left, eventually obtaining an order of protection against defendant in September of 1993. This did not end defendant's attempts to remain in contact with Arce. Arce testified that beginning in early 1994, defendant stood outside of her new residence, watching and following her, on approximately six occasions. Defendant frequently left items in Arce's car.

In May of 1994, defendant telephoned Arce and proposed a reconciliation. Arce refused. Shortly thereafter, defendant arrived at Arce's residence. When Arce refused to let defendant into her home, defendant pounded on the door and tried to force entry. Four days later, Arce was driving a car when defendant drove up behind her. Defendant repeatedly tried to force Arce off of the road. Arce drew the attention of a police car. After Arce told the police about the defendant's conduct, the police arrested him.

The State brought charges of aggravated stalking against defendant. Upon the defense's motion for a directed finding, the court ruled that the prosecution failed to establish conduct in aggravation. However, the court noted that the lesser charge of stalking was still before the court. After argument, the court found defendant guilty of stalking and sentenced defendant to 30 months' probation.

On appeal, defendant argues that: (1) his conviction must be overturned because the 1993 stalking statute is unconstitutional; and (2) his conviction for stalking violated the constitutional guarantees against ex post facto laws. However, we find that defendant has not satisfied his burden of establishing the constitutional violations and affirm. People v. Bales, 108 Ill. 2d 182, 483 N.E.2d 517, 91 Ill. Dec. 171 (1985)).

Defendant first claims that the 1993 stalking statute is void for overbreadth. A discussion of the 1992 version of the stalking statute, which was recently upheld as constitutional in People v. Bailey, 167 Ill. 2d 210, 657 N.E.2d 953, 212 Ill. Dec. 608 (1995), is helpful in understanding defendant's challenge to the 1993 stalking statute. The 1992 version, in relevant part, stated:

"(a) A person commits stalking when he or she transmits to another person a threat with the intent to place that person in reasonable apprehension of death, bodily harm, sexual assault, confinement or restraint, and in furtherance of the threat knowingly does any one or more of the following acts on at least 2 separate occasions:

(1) follows the person, other than within the residence of the defendant;

2) places the person under surveillance by remaining present outside his or her school, place of employment, vehicle, other place occupied by the person, or residence other than the residence of the ...


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