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People v. Kozin

June 30, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, EX REL., GWENA MINTEER, PETITIONER-APPELLEE,
v.
MARK KOZIN, RESPONDENT-APPELLANT.



The opinion of the court was delivered by: Presiding Justice Cerda

Appeal from the Circuit Court of Cook County

No. 97--D3--30228

Honorable Charles Porcellino, judge Presiding.

This is an appeal from an order of protection that petitioner, Gwena Minteer, obtained against respondent, Mark Kozin. On appeal, respondent asserts that (1) there was insufficient evidence to support the order of protection; (2) the trial court erred by considering evidence from a prior ex parte emergency hearing; and (3) the trial court erred by failing to articulate any specific findings, as required by statute. For the following reasons, we reverse.

On February 7, 1997, petitioner testified in an ex parte emergency hearing that respondent was her ex-boyfriend. Petitioner told the court that she met respondent two years earlier and had dated him for three months. When petitioner decided to end her relationship with respondent, he kept calling her, kept going over to her house, stood outside her house waiting for her to come home from work at 4 a.m., and got her fired from her job by being a customer at her place of employment. When petitioner found another job, respondent called her there at least five or six times a day. For that, respondent was arrested for telephone harassment, but the charges were dismissed. Since that time, respondent followed petitioner home from work "all the time" and left notes on her car almost every day. In addition, petitioner had been told by friends that respondent had gone to Heavenly Bodies, a club that petitioner frequented, every week, and waited for her to arrive.

Based on petitioner's ex parte testimony, the trial court issued an emergency order of protection against respondent from February 7, 1997, through February 28, 1997.

At the court hearing on March 21, 1997, both petitioner and respondent were present. Petitioner asked for an extension of the order of protection. Prior to the hearing, the trial court explained that when the previous trial Judge signed the order of protection, he found that petitioner had established a prima facie case. Therefore, the trial court determined that the burden of going forward shifted to respondent.

Petitioner, called by respondent as an adverse witness, testified that she dated respondent on and off for a year. They met in January 1995 at the Admiral Theater, a gentleman's club where petitioner was employed as a dancer. The following month, petitioner called respondent and began dating him. After respondent bought petitioner a $3,100 diamond ring and several other items, petitioner ended the relationship in May 1995. Initially, she refused to return the ring, but eventually she returned the ring to respondent in open court. Subsequently, petitioner saw respondent at the Admiral Theater and was fired because she was dating him, which was a violation of the club's policy. At another club where petitioner worked, Crazy Horse II, respondent was arrested for telephone harassment, but those charges were eventually dismissed.

Petitioner testified that she called respondent in March 1996, went to dinner with him in April 1996, and went to a riverboat and dinner with him in 1996, but petitioner did not consider those dates. Petitioner also admitted that in the past, she contacted respondent whenever she needed money or companionship. Further, petitioner testified that respondent never threatened her. Nevertheless, petitioner complained that respondent left notes on her car on one occasion and was present at a bar that petitioner frequented even though he did not say anything to her.

Respondent, the owner of a temporary help agency, testified that he met petitioner at a gentleman's club in February 1995. Within a short time, they began dating, which lasted until July 1995. Respondent bought gifts for petitioner, including a diamond ring. Petitioner called respondent in March 1996 at which time she agreed to go to dinner with respondent. They started dating again.

Respondent denied ever following petitioner home, leaving notes on her car, or threatening her. Respondent further testified that he was in a bar and restaurant, Dakota's, with other people at the same time petitioner was present. Although he saw petitioner, he did not speak to her or do anything to her. Based on that evidence, the trial court found that respondent failed to overcome the prima facie case established at the earlier ex parte hearing. The court then entered a plenary order of protection for a period of two years. Respondent was ordered to not harass petitioner, interfere with petitioner's personal liberty, or stalk petitioner.

On appeal, respondent asserts that the evidence presented at the court hearing was insufficient to support the entry of an order of protection. Respondent also asserts that the trial court improperly considered evidence from the previous ex parte emergency hearing and improperly held that the previous hearing established a prima facie case for the petitioner, which created an improper evidentiary burden for the respondent to overcome.

At the beginning of the court hearing for the plenary order of protection, the trial court stated:

"[A]s I understand it, the law indicated that when Judge Hoffenberg signed this [emergency] order of protection, he found there was -- the petitioner had established a prima facie case with regards to the element of the statute. The burden ...


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