Appeal from Circuit Court of Douglas County No. 97CF28 Honorable Frank W. Lincoln, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Defendant, Barry Reynolds, was convicted after a jury trial of vio-lating an order of protection under section 12-30 of the Criminal Code of 1961 (720 ILCS 5/12-30 (West 1996)). He appeals, contending (1) the statute is vague and overbroad and, therefore, violative of the first and fourteenth amendments to the United States Constitution (U.S. Const., amends. I, XIV) and article I, sections 2 and 4, of the Illinois Constitution (Ill. Const. 1970, art. I, §§2, 4); (2) the State failed to prove him guilty beyond a reasonable doubt; (3) the trial court erred in excluding certain evidence; and (4) the prosecutor's closing argument violated due process. We affirm.
Defendant and JoEllen Thomas were married on February 14, 1982, and separated May 24, 1995. Their marriage was dissolved on May 28, 1996. JoEllen sought the dissolution and has custody of their four children. On October 29, 1995, she obtained an order of protection (order) against defendant pursuant to the Illinois Domestic Violence Act of 1986 (Act) (750 ILCS 60/101 et seq. (West 1994)). Defendant was charged with a violation of the order of protection because, having notice of the order, he intentionally committed an act prohibited by the order: send-ing a written note to the home of JoEllen Reynolds with the intent to harass her.
JoEllen testified at trial an envelope in defendant's handwriting addressed to defendant's and JoEllen's daughter, JoAnna, was received in the mail. The postmark on the envelope was April 22, 1997. JoAnna had her seventh birthday on April 13. JoEllen gave the envelope to JoAnna, who opened it and gave the card inside to her mother because a post-it note was attached with writing in defendant's handwriting. The note said "Bye the bye, the State dropped all chargeson you and Jerry's bull you tried to pull. Barry."
JoEllen identified Jerry as her fiancé. He was a witness to a June 1996 incident about which JoEllen had made a formal complaint to authorities charging defendant with a previous violation of the same order of protection. JoEllen testified defendant did not send any of the children birthday cards in 1996, or to the three other children in 1997, nor did he send them Christmas cards. When JoEllen first saw the post-it note she said, "It made me sick to my stomach to see that he had to use that, that he had to do that." She stated the distress lasted for a period of time and she started to cry on the witness stand.
JoEllen said in her statement to police she knew the note referred to the June 1996 violation of the order and knew it was "harassment intimidation." She knew defendant had violated the order. JoEllen stated when she received the note she did not believe what it said. She knew the charges had not been dropped; defendant spent a weekend in jail and had been fined after pleading guilty. Therefore, when she got defendant's note she believed he was harassing and "persecuting" her again.
It was JoEllen's understanding she and defendant could communicate about their children under the order, but she had not communicated with him for any purpose other than visitation and child support. JoEllen also denied the note was stuck to a letter defendant sent to her that was included in the same envelope with the card to JoAnna.
Defendant testified he had agreed to the order. He admitted writing the note and sending it to JoEllen's address but stated he did not nor would he have put it on JoAnna's birthday card. Defendant stated he stuck the note on a separate letter to JoEllen that he thought was in the same envelope with the card. The letter he attached the card to was undated, and defendant could not recall the date he mailed it but stated it was soon after he had received the children's midterm grades and the letter related to their poor grades. He stated he did not put the note's contents on the back of the full-page letter because "I was at the bottom of the page and I wasn't going to flip it over and start messing with it."
Defendant testified the circuit clerk's office informed him the prior charge was dismissed. After he sent the note he spent two days in jail as a result of a plea agreement in which he pleaded guilty to contempt of court based on the same prior incident. Defendant testified he wrote the note "[t]o let [JoEllen] know that she can't cry wolf all the time, and that the charges were dismissed. *** I wanted my [ex-]wife to know that she cannot keep harassing me." He wanted "[t]o show her that she can't come in here and cry wolf every time I look at her wrong, and she's going to have me arrested." Defendant was angry and upset with JoEllen both at the time he wrote the note and on the day of his testimony. He stated he did not intend to harass JoEllen.
The jury returned a verdict of guilty. Defendant was sentenced to 24 months' probation with a 30-day jail sentence subject to work release and an additional 120 days in jail subject to remission in the event he fully complied with the order of probation. This appeal followed.
Defendant asserts first the term "harassment" in the Act is vague and overbroad. To prevail on a vagueness challenge to a statute, a party must demonstrate the statute was vague as applied to the conduct for which the party is being prosecuted. People v. Bailey, 167 Ill. 2d 210, 228, 657 N.E.2d 953, 962 (1995). To withstand a challenge for vagueness, a statute must give a person of ordinary intelligence a reasonable opportunity to know what conduct is lawful and what conduct is unlawful. People v. Anderson, 148 Ill. 2d 15, 27-28, 591 N.E.2d 461, 467 (1992); People v. Bales, 108 Ill. 2d 182, 188, 483 N.E.2d 517, 520 (1985).
Although the term "harassment" in the Act has already been upheld as not unconstitutionally vague (see People v. Whitfield, 147 Ill. App. 3d 675, 682, 498 N.E.2d 262, 267 (1986)), defendant contends the term "harassment" as used in section 103(7) of the Act is vague because his conduct does not fit into any of the six types of conduct the Act states are presumed to cause emotional distress, an element of harassment. The Act states in pertinent part:
"(7) 'Harassment' means knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the pe-titioner. Unless the presumption is rebutted by a preponderance of the evidence, ...