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People v. Diestelhorst

December 16, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
WESLEY G. DIESTELHORST, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Montgomery County. No. 01-CF-73 Honorable John W. McGuire, Judge, presiding.

The opinion of the court was delivered by: Justice Goldenhersh

UNPUBLISHED

Following a bench trial in the circuit court of Montgomery County, the defendant, Wesley G. Diestelhorst, a convicted child sex offender, was convicted of three counts of improper approaching, contacting, or communicating with a child within a public park zone by a child sex offender in violation of section 11-9.4(a) of the Criminal Code of 1961 (the Code) (720 ILCS 5/11-9.4(a) (West 2000)). The defendant was sentenced to concurrent, six-year, extended-term sentences in the Department of Corrections on counts I and II. No sentence was imposed on count III, because the trial court found that it was based upon the same physical act as count II. On appeal, the defendant argues (1) that the charges against him are fatally defective because only the conclusory language of the statute is recited, (2) that he was denied his right to a preliminary hearing on a superceding information, (3) that he was not proven guilty beyond a reasonable doubt of any of the three charges, (4) that section 11-9.4(a) of the Code is unconstitutionally broad, (5) that he was denied a fair trial due to the ineffective assistance of his counsel, (6) that the three alleged acts for which he was convicted are parts of a single act rather than separate acts, and (7) that the sentence imposed is excessive and should be reduced to time served. We affirm.

FACTS

The defendant has multiple convictions for child sexual offenses. In 1985 a Montgomery County jury found the defendant guilty of one count of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14 (now see 720 ILCS 5/12-14 (West 2002))) for sexually penetrating a male child under the age of 13 and three counts of indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11-4 (now see 720 ILCS 5/12-12 et seq. (West 2002))) for performing various sexual acts with a female child under the age of 16. The defendant received a prison sentence of 20 years and served approximately 10 years in the Department of Corrections for these convictions. In 1996, the defendant was charged with three counts of child abduction and ultimately pled guilty to one count of child abduction (720 ILCS 5/ 10-5(b)(10) (West 1996)) for luring or attempting to lure a child under the age of 16 into a motor vehicle. The defendant received a sentence of three years in the Department of Corrections.

Pursuant to section 11-9.4 of the Code, effective January 1, 2000, it became illegal for child sexual offenders to interact with children in public parks. The statute provided in pertinent part as follows:

"Approaching, contacting, residing, or communicating with a child within public park zone by child sex offenders prohibited.
(a) It is unlawful for a child sex offender to knowingly be present in any public park building or on real property comprising any public park when persons under the age of 18 are present in the building or on the grounds and to approach, contact, or communicate with a child under 18 years of age, unless the offender is a parent or guardian of a person under 18 years of age present in the building or on the grounds." 720 ILCS 5/11-9.4(a) (West 2000).

A person who violates section 11-9.4(a) is guilty of a Class 4 felony. 720 ILCS 5/11-9.4(e) (West 2000).

This is not the first time the defendant has been charged with a violation of the above statute. On April 3, 2001, the defendant drove a truck to a park in Montgomery County and parked near a ball field where a girls' high school team was holding practice. The defendant exited the truck but left loud music playing. He went to the ball field and made comments to the girls, such as "nice catch." After the girls complained to their coach that the defendant was interfering with their practice, the defendant was charged with violating sections 11-9.4(a) and 11-9.4(b) of the Code (720 ILCS 5/11-9.4(a), (b) (West 2000)).

On May 1, 2001, the defendant was charged with another violation of section 11-9.4(a) of the Code after he interfered with a boys' high school baseball practice. That charge emanated from the defendant's actions on the evening of April 29, 2001. At that time, the defendant drove his mother's truck to Raymond Park and parked it near a ball diamond where a high school boys' team was holding practice. The defendant blasted music from the truck as he watched the practice. The defendant also shagged foul balls and kept a running commentary going with the players, saying such things as "that was beautiful" and "that's the spot." At one point, a player dropped his glove to retrieve a ball that had gone over the fence, and the defendant picked up the glove, forcing the player to have to recover his glove from the defendant.

Prior to the start of a trial on any of the above-described charges, defense counsel filed a motion to dismiss on the basis that section 11-9.4(a) is unconstitutionally vague because the terms "approach," "contact," and "communicate" are not defined by the statute. The trial court denied the defendant's motion to dismiss and found that the statute is not void for vagueness. The first two charges centering around the events of April 3, 2001, proceeded to a trial in September 2001. Ultimately, the defendant was acquitted of both charges arising from the events surrounding the girls' softball practice. The defendant was not so lucky in the instant case.

In November 2001, the State filed an amended information concerning the events surrounding the boys' baseball practice. The original information had charged the defendant with only one count and alleged that the defendant "communicated with a child" in violation of section 11-9.4(a). Count I of the amended information recited the original charge based upon communication with a child and added "alternate charges of the same statute." Count II alleged that the defendant violated section 11-9.4(a) when he "approached" a child, and count III alleged that the defendant violated section 11-9.4(a) when he "contacted" a child.

At a pretrial hearing on May 2, 2002, the trial court stated that there was no need to conduct a preliminary hearing on the two additional counts in the amended information. The trial court then asked for the parties' thoughts on the matter. The State agreed, noting that the additional charges did not "create any substantial or new issues that would catch the defendant by surprise" and did not change the manner in which the State would proceed in attempting to prove the charges. Defense counsel stated, "I would just for the record[-]would indicate that I think at least two of these are new charges[,] and I would submit that there should be a preliminary hearing." Defense counsel did not claim that a preliminary hearing was necessary in order to properly prepare a defense. The trial court concluded that a preliminary hearing was not necessary, and the cause proceeded to a bench trial.

The parties stipulated that the defendant's actions had occurred in a public park and that the defendant "was not the parent or guardian of any of the persons under 18 years of age present on the park grounds." The State offered the testimony of Dennis Matli, the coach of the boys' baseball team, M.M., a 16-year-old team member, Todd Brown, a member of the team who was 18 years old at the time of the trial, and B.W., a 16-year-old team member.

Coach Matli recalled that on the evening of April 29, 2001, his team, which was comprised of 15- to 17-year-old males, was practicing at a baseball field. The defendant drove up in a pickup truck with music playing loudly. Matli told the team to ignore the defendant. The defendant walked back and forth between his parked truck and various areas around the field. Matli saw the defendant sitting on the bleachers behind home plate, walking around the dugouts, and standing by the fence. At one point, some of the players were hitting foul balls over a fence, and the defendant retrieved the balls and threw them back to the players. Matli did not have direct contact with the defendant, nor did he see him have direct contact with the players.

M.M. testified that he was 16 years old on the date when the alleged events occurred. M.M. recalled that the defendant "[p]ulled up in his truck with his radio blaring[,] causing attention to himself." He also drew attention to himself by sitting on the bleachers and making comments on the game, such as "nice hit" and "good try." M.M. testified that the defendant talked directly with one of his friends, B.W. M.M. could not hear what the defendant said to B.W., but he saw him talking to B.W. M.M. said that this occurred when B.W. went to shag a foul ball which had gone over a fence. In order to retrieve the ball, B.W. dropped his baseball glove and jumped over the fence. The defendant picked up the glove and then gave it back to B.W. by the fence line. M.M. noted that the defendant and B.W. were close enough that the defendant could hand the glove back to B.W.

Todd Brown was also practicing at the park on the night in question and corroborated the testimony of M.M. regarding the defendant's actions and his commentating on the game. He also witnessed the glove exchange between B.W. and the defendant. Brown said that B.W. and the defendant were only a "[c]ouple feet" apart when the exchange was made. He said it looked like the defendant said something to M.M., but Brown was too far away to hear anything.

B.W. testified that the defendant arrived at the park with music blaring from his truck. The defendant then proceeded to pace the right field line, sit behind the backstop on bleachers, and comment upon the team's batting practice. At one point, B.W. was behind the backstop retrieving foul balls. A ball went over the fence and B.W. dropped his glove and jumped over the fence to retrieve the errant ball. After B.W. retrieved the ball, he turned around and saw the defendant wearing his glove. The defendant then stated directly to B.W., "Look, I found a glove." B.W. told the defendant that it was his glove. B.W. retrieved another ball that had sailed over the fence. On his way back, he met the defendant at the gate and the defendant handed him the glove. B.W. testified that he was an arm's length away from the defendant during the exchange. B.W. said the defendant remained at the park until approximately 8:15 p.m., when the practice ended.

The defendant testified on his own behalf that on the date in question he was out for a drive when he noticed an organized baseball practice in the park and decided to stop and watch. He admitted that he went back and forth between his truck and different areas around the baseball field. At one point, he was sitting in his truck and heard a train, so he got out of his truck to watch the train. As he got near a gate, he noticed a baseball glove lying on the ground and thought someone might have lost it. After he picked it up to look at it, he heard B.W. say either "That's mine" or "That's my glove." He testified that B.W. then walked toward him, took the glove out of his hand, and went back to his baseball practice. The defendant walked through the gate and watched the train. The defendant denied saying anything to B.W. or to anyone else at the park. He said he made some comments to himself, but they were not directed toward anyone.

After hearing all the evidence, the trial court found the defendant guilty on all three counts. At the sentencing hearing, the trial court noted that it would enter a judgment on counts I and II only, because counts II and III were based upon the same physical act. The trial court found the defendant to be a threat to the community, and the court sentenced the defendant to concurrent, six-year, extended-term sentences on counts I and II. The defendant filed a motion to reconsider and a motion for the reduction of the sentences, which the trial court denied. The defendant now appeals.

ANALYSIS

I. Charging Instrument

The defendant first contends that the charges against him are fatally defective because the information alleged only the conclusory language of the statute, rather than particular acts. The defendant insists that he was not told which acts he allegedly committed amounted to a communication, an approach, or a contact and that, therefore, he was unable to properly prepare a defense and now ...


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