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People v. Thoennes

October 9, 2002


Appeal from Circuit Court of McLean County No. 99CF1482 Honorable Donald D. Bernardi, Judge Presiding.

The opinion of the court was delivered by: Justice Turner

In January 2000, defendant, Sean Michael Thoennes, was charged with the offense of false personation of a peace of officer (720 ILCS 5/32-5.1 (West 1998)). Following a jury trial in April 2000, defendant was convicted and sentenced to 24 months' probation. On appeal, defendant argues the false personation of a peace officer is unconstitutional as it is violative of substantive due process and overbroad. We affirm.


In January 2000, a grand jury returned an indictment against defendant, along with his cousin, Robert Thoennes (not a party to this appeal), charging him with the offense of false personation of a peace officer, a Class 4 felony, pursuant to section 32-5.1 of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/32-5.1 (West 1998)) in that he knowingly and falsely represented himself to be a peace officer of any jurisdiction by identifying himself as a police officer to Jessica Hoelscher.

A consolidated jury trial commenced in April 2000. Jessica Hoelscher testified she was driving her mother's Explorer on December 27, 1999, around midnight. Her friend, Katy Benjamin, was also in the vehicle as they headed west on College Avenue in Normal. While driving, Hoelscher noticed two males in a Camaro traveling next to them. She indicated the two males proceeded to repeatedly speed up and slow down and later the Camaro's passenger "flipped [her] off." Upon approaching a set of railroad tracks, the Camaro swerved in front of the Explorer, and Hoelscher stated she "braked hard." Thereafter, she decided to write down the license plate number of the Camaro and report it to the police. Hoelscher then followed the Camaro to a residential neighborhood where both vehicles stopped. She indicated the passenger of the Camaro, identified as defendant, exited the vehicle and came up to her window. An "angry" conversation took place with defendant using profanities. After telling defendant and the Camaro driver, Robert Thoennes, that she wanted the license plate number, Hoelscher testified that defendant stated "he was a police officer." Hoelscher stated she disbelieved the two males were police officers and asked for proof. She stated Robert Thoennes entered his car and "pulled out what appeared to be a badge." After requesting their names, defendant responded his name was "Officer Jack Off" and made a motion as if he was masturbating. Hoelscher then drove off without getting the Camaro's license plate numbers. The occupants of the Camaro then began following the Explorer, and Hoelscher indicated she was "slightly" concerned for her safety. Hoelscher testified she was able to take down the Camaro's license plate number and call the police after the Camaro had driven into someone's yard and hit a mailbox.

Katherine Benjamin testified she was traveling with her friend Jessica Hoelscher on the night of December 27, 1999. She stated the passenger of the Camaro "flicked us off" and later the car swerved into their lane causing Hoelscher to brake. Benjamin stated Hoelscher proceeded to follow the Camaro to get the license plate number and report it to the police. Once the two vehicles stopped, defendant exited the Camaro and began yelling at them. Thereafter, all the parties involved engaged in a shouting match and traded profanities. At one point, Robert Thoennes reached into his car and quickly flashed a badge stating he was a police officer. Benjamin indicated the shiny smooth material appeared to be a badge. She also testified defendant stated his name was "Officer Jack Off" and made a motion with his hands near his crotch. After Hoelscher and Benjamin questioned defendant's use of profanity, defendant stated he could do anything he wanted because they had "the law behind us." She also stated the driver told her and Hoelscher that they were going to spend the night in jail. After the males in the Camaro began following them, Benjamin stated she called 9-1-1 because "we didn't feel safe."

Defendant testified on his own behalf. He stated he was a passenger in a Camaro that was being followed by a Ford Explorer. After both vehicles stopped, the occupants of both vehicles exchanged heated language. After becoming frustrated with the argument with the girls, defendant stated he and his cousin left. Thereafter, they were stopped by a Normal police officer. On cross-examination, defendant stated he did not know there was a badge in the car until the police officer asked about it.

Robert Thoennes testified that at the time of the incident he worked for Wackenhut Security. He indicated he wore a uniform and a badge while on duty. On December 27, 1999, he stated he and his cousin confronted the females in the Explorer. He began writing the Explorer's license plate number down "to kind of scare them" so they would not follow them any longer. Robert then proceeded back to the Camaro to retrieve a cell phone. He testified he held up a gold cell phone with a metallic finish and said he was calling the police. He stated he had two badges in his car that night, but he never stated he was a police officer or showed the girls a badge.

Following closing arguments, the jury returned a guilty verdict as to defendant and Robert Thoennes of false personation of a police officer. In May 2000, defendant filed a motion for new trial arguing, inter alia, that section 32-5.1 of the Criminal Code was unconstitutional, which the trial court denied. Thereafter, the trial court sentenced defendant to 24 months' probation.

In July 2000, defendant filed a motion to reconsider the trial court's denial of his posttrial motion alleging section 32-5.1 of the Criminal Code was unconstitutional. 720 ILCS 5/32-5.1 (West 1998). The trial court found the statute was not unconstitutional and denied defendant's motion. The trial court then reimposed defendant's sentence of 24 months' probation. This appeal followed.


A. Substantive Due Process

Defendant argues the false personation of a peace officer statute is unconstitutional because it does not require the false personation be committed for an unlawful or improper purpose which criminalizes a substantial amount of innocent conduct and violates state and federal substantive due process guarantees. We disagree.

All statutes are presumed constitutional. In re R.C., 195 Ill. 2d 291, 296, 745 N.E.2d 1233, 1237 (2001). The party challenging the constitutionality of the statute bears the burden of clearly establishing the alleged ...

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