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People v. Carroll

May 16, 2001


Appeal from the Circuit Court of Kane County. No. 99--CM--5157 Honorable Grant S. Wegner, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

The defendant, Laura Carroll, appeals her conviction of criminal trespass after she walked onto the property of a private medical clinic that performed abortions to distribute literature regarding the alternatives to abortion. We reverse and remand.

The following facts are taken from the common-law record and the stipulations of the parties. The record contains no transcript of the trial proceedings.

At the jury trial, the evidence revealed that on or about August 18, 1999, the defendant walked onto the private property that housed an abortion clinic. "No trespassing" signs were posted outside the clinic property.

Before coming onto the property, the defendant approached a man, who was accompanying a clinic patient, to discuss abortion and alternatives to abortion. The defendant went onto the clinic property after the man invited her onto the property to bring him literature. A clinic employee then asked the defendant to leave, and the defendant immediately complied. However, the defendant was later arrested and charged with criminal trespass of real property after receiving notice that entry was forbidden. 720 ILCS 5/21--3 (West 1998).

Cheryl Holcomb, the clinic's administrator, testified that "patients and their escorts are both routinely allowed to invite persons of their choosing to the clinic without running afoul of the posted 'no trespassing' sign."

The parties stipulated that two witnesses, Jennifer Feuerborn and Dan Jackman, who were present at the scene, would have testified that the unidentified man made two statements: "I will read the literature if you bring it to me," and "Yes, I am inviting you onto the clinic property." The trial court sustained the State's objection to this testimony as based on hearsay.

The trial court gave the jury the following instructions:

"A person commits the offense of criminal trespass to real property when he knowingly enters upon the land of another or any part thereof without permission or invitation after receiving, prior to such entry, notice from the owner that such entry is forbidden."

During deliberation the jury sent a question to the court asking, "Under the law, can only the owner of a property or his or her representative have the authority to invite someone on the property?" Defendant had no objection to a flat answer of "No." However, the court replied with the following statement: "Permission or invitation may be given by an owner or occupier." The court refused the defendant's request to add a definition of the term "occupier."

The jury found the defendant guilty of criminal trespass to property, and the trial court sentenced the defendant to court supervision for 1 year and 30 hours of public service. The trial court denied the defendant's posttrial motions, and the defendant filed this timely appeal.

On appeal, the defendant first argues that the trial court erred by excluding evidence as inadmissible hearsay that an unidentified man invited the defendant onto the property. The State argues that the trial court did not abuse its discretion in excluding the evidence. We disagree with the State.

Generally, out-of-court statements offered for the truth of the matter asserted are hearsay statements that are not admissible. People v. Jackson, 293 Ill. App. 3d 1009, 1015 (1997). However, statements offered for their effect on the listener or to explain the subsequent course of conduct of another are not hearsay. People v. Brandon, 283 Ill. App. 3d 358, 365 (1996).

Here, the State had to prove, in part, that the defendant was given notice that she was not permitted on the property. 720 ILCS 5/21--3 (West 1998). The State presented evidence that "no trespassing" signs were posted on the property. However, it is well settled that invitation is an affirmative defense to criminal trespass. People v. Smith, 237 Ill. App. 3d 901, 907 (1992). Therefore, the defendant should have been permitted to rebut this evidence with testimony that the defendant was invited to enter the property by a person impliedly authorized to extend that invitation. Here, the defendant testified that an unidentified man invited the defendant to come onto the property to give him literature. This explains why the defendant entered the property even though the "no trespassing" signs were posted. The excluded evidence should have been admitted to allow the ...

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