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09/20/96 VLADIMIR P. v. VLADIMIR P.

September 20, 1996

IN RE VLADIMIR P., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
VLADIMIR P., RESPONDENT-APPELLANT).



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE CATHERINE HABERKORN, JUDGE PRESIDING.

Released for Publication October 22, 1996.

The Honorable Justice McNAMARA delivered the opinion of the court: Zwick, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Mcnamara

JUSTICE McNAMARA delivered the opinion of the court:

After an adjudicatory hearing, the trial court, juvenile division, found minor respondent Vladimir P. to be delinquent and adjudicated him as a ward of the court. The delinquency findings were based on the aggravated assault (720 ILCS 5/12-2 (West 1994)) and hate crime (720 ILCS 5/12-7.1 (West 1994)) against Levi Bergovoy. The trial court placed respondent on probation for one year and ordered him to perform 200 hours of community service. On appeal, respondent concedes that he was properly found guilty of aggravated assault. He argues, however, that the evidence was insufficient to prove him guilty of a hate crime and that, in any event, the hate crime statute is unconstitutional. The relevant facts are as follows.

At approximately 3:30 p.m. on June 22, 1994, Bergovoy, a 13-year-old Orthodox Jewish boy, was walking home. He was wearing a head covering (yarmulke) and prayer tassels (tzitzis), symbolizing his religious beliefs. Bergovoy saw respondent, a co-respondent named Igor, and a third youth sitting on the steps of an apartment building. One or more of the youths started shouting at Bergovoy: "Fuck you Jew, get out of here Jew, I am going to kill you Jew, fuck you Jew." Bergovoy then saw a metal object fly in front of him. It was a knife. The boy became frightened that the youths would beat him up, and he ran home. He did not know who threw the knife or yelled at him.

Officer Val Roytman of the Chicago police department testified that after talking to Bergovoy, he went to the scene of the incident. He found the knife handle and blade. Roytman took the three youths into custody. At the station, respondent told Roytman that he and his two friends were playing with a knife. At some point the knife broke in two. Respondent said that they were bored and that Bergovoy looked "funny" when he went by. Igor then threw the knife handle while respondent threw the knife blade.

Bergovoy's mother testified that when her son arrived home he was nervous and frightened. He told her what the youths had yelled and that one of them threw a knife at him. Mrs. Bergovoy took her son outside to see who did this to him. When they reached the sidewalk, Igor approached and yelled, "Fuck you Jew." She grabbed her son, ran into their home and called the police.

Respondent's mother testified for respondent. He was 15 years old. Respondent knew what Bergovoy's head covering and tassels represented because he was Jewish. Respondent and his family had come to the United States from Russia two years prior to this incident. They left Russia because, as Jewish people, they did not feel safe.

I. CONSTITUTIONALITY OF THE ILLINOIS HATE CRIME STATUTE

We initially consider respondent's contention that the Illinois hate crime statute (720 ILCS 5/12-7.1 (West 1994)) is unconstitutional. The relevant portion of the statute reads as follows:

"(a) A person commits hate crime when, by reason of the actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation, physical or mental disability, or national origin of another individual or group of individuals, he commits assault, battery, aggravated assault, misdemeanor theft, criminal trespass to residence, misdemeanor criminal damage to property, criminal trespass to vehicle, criminal trespass to real property, mob action or disorderly conduct as these crimes are defined in Sections 12-1, 12-2, 12-3, 16-1, 19-4, 21-1, 21-2, 21-3, 25-1, and 26-1 of this Code, respectively, or harassment by telephone as defined in Section 1-1 of the Obscene Phone Call Act." 720 ILCS 5/12-7.1 (West 1994).

Respondent contends that the statute violates his rights to free speech and thought, due process, and equal protection under the law guaranteed by the first and fourteenth amendments of the United States Constitution and article I, sections 2 and 4, of the Illinois Constitution of 1970. The State replies that respondent's constitutional arguments have already been disposed of by the United States Supreme Court's decision in Wisconsin v. Mitchell, 508 U.S. 476, 124 L. Ed. 2d 436, 113 S. Ct. 2194 (1993), and this court's decision in People v. Johnston, 267 Ill. App. 3d 526, 641 N.E.2d 898, 204 Ill. Dec. 468 (1994).

In Wisconsin v. Mitchell, the question before the United States Supreme Court was whether a Wisconsin penalty-enhancement statute was unconstitutional. The statute at issue increased the maximum penalty for an offense where a defendant "'intentionally selects the person against whom the crime ... is committed ... because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person....'" Mitchell, 508 U.S. at 480, 124 L. Ed. 2d at 442, 113 S. Ct. at 2197, quoting Wis. Stat. ยง 939.645(1)(b) (1989-90). The Supreme Court rejected Mitchell's argument that the Wisconsin statute punished offenders for their bigoted thoughts and beliefs. Instead, the Court found that the statute was "aimed at conduct unprotected by the First Amendment." Mitchell, 508 U.S. at 487, 124 L. Ed. 2d at 447, 113 S. Ct. at 2201. According to the Court, "the Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm." Mitchell, 508 U.S. at 487-88, 124 L. Ed. 2d at 447, 113 S. Ct. at 2201. "The State's desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders' beliefs or biases." Mitchell, 508 U.S. at 488, 124 L. Ed. 2d at 447, 113 S. Ct. at 2201. The Court in Mitchell also rejected the argument that the statute was "unconstitutionally overbroad because of its 'chilling effect' on free speech." Mitchell, 508 U.S. at 488, 124 L. Ed. 2d at 447, 113 S. Ct. at 2201. The crux of this argument was that an individual would suppress his ...


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