Appeal from Circuit Court of Champaign County. No. 010V1424. Honorable Holly F. Clemons, Judge Presiding.
The opinion of the court was delivered by: Justice Myerscough
Defendant, Brian Keith Sides, was charged with public indecency in violation of the Municipal Code of Champaign (Municipal Code) (Champaign Municipal Code §23-111(1) (1985)). A jury convicted defendant, and the trial court fined him $500. Defendant appeals, arguing (1) his prosecution violated the United States and Illinois Constitutions; (2) the trial court erred in denying defendant's pretrial motions; (3) the trial court improperly admitted and excluded evidence, exhibits, and testimony; (4) the prosecution engaged in misconduct; and (5) defendant was prejudiced by bias and errors on the part of the trial court. We affirm.
On August 17, 2001, plaintiff, the City of Champaign (Champaign), charged defendant with public indecency in that defendant:
"did, while thirty-one (31) years of age, engage in an act of sexual intercourse, in an area commonly open to the public, namely behind a building by a loading dock, at 802 Town Center, Champaign, Illinois."
The complaint contained a prayer that, upon conviction, defendant be fined not less than $175 and not more than $750 pursuant to section 1-21 of the Municipal Code (Champaign Municipal Code §1-21 (1985)). Section 23-111 of the Municipal Code states:
"No person shall commit a public indecency. Any person of the age of seventeen (17) years and upwards who performs any of the following acts in a public place commits a public indecency:
(1) An act of sexual intercourse ***." Champaign
Municipal Code §23-111 (1985).
Defendant appeared pro se throughout the trial court proceedings. Defendant filed a motion for discovery seeking, inter alia, "any handwritten notes by all police personnel made in connection with" defendant's case. Defendant also filed a motion to dismiss, alleging the minimum fine demanded by the complaint violated article I, section 16, of the Constitution of the State of Illinois (Ill. Const. 1970, art. I, §16) and article I, sections 9, clause 3, and 10, clause 1, of the United States Constitution (U.S. Const., art. I, §§9, 10) prohibiting the passage of an ex post facto law.
Following a hearing, the trial court dismissed part of the complaint, without prejudice, allowing the city to amend the wording regarding the minimum fine. The court denied the rest of the motion and ordered the city to produce any handwritten notes of police officers.
Champaign filed an amended complaint containing a prayer that defendant be fined not less than $1 nor more than $750. Champaign then filed a new motion for leave to amend its complaint, stating that after filing the amended complaint, it learned the location alleged in the complaint was inaccurate. The second-amended complaint stated defendant "did, while thirty-one (31) years of age, engage in an act of sexual intercourse in a public place, namely, behind a building by a loading dock at 2102 N. Prospect Avenue[,] Champaign, Illinois." (Emphases added.) In addition to correcting the address of the offense to 2102 N. Prospect Avenue, the language "in a public place" in the second-amended complaint differed from the first-amended complaint, which read "in an area commonly open to the public."
Defendant then filed a motion in limine to preclude use of a videocassette tape (videotape), alleging the videotape conveyed images that did not include any elements of the charge, were unwelcome, and were substantially more prejudicial than probative of any issue at trial.
The trial court later heard argument on defendant's motion to compel production of handwritten notes and motion in limine. The court denied the motion to compel. It also denied the motion in limine, stating: "I believe that the probative value is certainly not outweighed by the prejudicial impact that this videotape may have."
Defendant filed a second motion to dismiss, alleging he first learned of Champaign's use of the term "public place" in its second-amended complaint after he received proposed jury instructions at a pretrial conference. Defendant also objected to the use of the term "public place" in the jury instructions. The trial court heard argument on defendant's second motion to dismiss. The court expressed concern over the second-amended complaint "due to the fact that [the court] had specifically inquired *** [if] the only change between the amended complaint and the second-amended complaint was the change of address." However, the court denied the motion, holding defendant had not been prejudiced by the change because the complaint followed the Municipal Code, which contains a definition of "public place." The court also denied defendant's motion to limit the testimony of Troi Westbrook, a videotape foundation witness. The court concluded that to lay the foundation, Champaign must establish the videotape had not been altered.
Troi Westbrook testified for Champaign. Troi is employed by Target store at 2102 North Prospect in Champaign and works with its surveillance equipment. On the afternoon of July 10, 2001, Westbrook's supervisor was manually operating the camera covering the outside area. Westbrook testified that what he saw on the screen was a man in the passenger seat of a car with his pants down. The car was parked behind the Target building. Westbrook identified defendant as the man in the car. When police arrived, they viewed the tape. Westbrook's supervisor turned the tape over to police.
Westbrook testified he could see "a man's rear end in the windshield, and he was moving." At this point, Westbrook could not see anyone else in the vehicle. The videotape was admitted into evidence and viewed by the jury. Defendant argued the jury should be allowed to view the tape in its entirety, but the court held any footage after the vehicle left the rear of Target was irrelevant.
Officer Randall Cunningham with the Champaign police department testified the vehicle in question had left Target by the time he arrived. Target security advised him the vehicle was pulling into the Borders' store parking lot. When Officer Cunningham pulled into the parking lot, he saw two people in the car and identified defendant as the driver. Officer Cunningham viewed the videotape and issued defendant a citation for public indecency.
Defendant testified his car was stopped in a parking lot adjacent to Target. Anson Huckleby, security supervisor at Target, "came running and screaming across the parking lot that [defendant] was having unconsensual sex with the minor." Defendant testified he was the only person cited for this incident, but the trial court sustained Champaign's objection to this evidence.
The jury found defendant guilty of public indecency and assessed a $500 fine. This appeal followed.
A. Violation of Constitutional Rights
Defendant first argues section 23-111 of the Municipal Code is preempted by section 11-9 of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/11-9 (West 2000)) because the two provisions are inconsistent, and "[w]here there is a conflict between a statute and a municipal ordinance, the ordinance must give way." Section 11-9(a) of the Criminal Code states:
"(a) Any person of the age of 17 years and upwards who performs any of the following acts in a public place commits a public indecency:
(1) An act of sexual penetration or sexual conduct as defined in [s]section 12-12 of this [c]ode[.]" 720 ILCS 5/11-9(a) (West 2000).
Determination of preemption of a local ordinance by a state statute involves construction of the statute and is subject to de novo review. City of Chicago v. Haworth, 303 Ill. ...