Appeal from the Circuit Court of Boone County. No. 09-CM-431 Honorable John H. Young, Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant, Nicholas T. Finkenbinder, was convicted of consuming alcohol while under the age of 21 (235 ILCS 5/6-20(e) (West 2008)) and was sentenced to one year of court supervision. Defendant appeals, arguing that the trial court erred in concluding that he was not exempt from prosecution under the statute. For the reasons that follow, we affirm.
¶ 3 The evidence presented at trial tended to prove the following. On June 3, 2009, defendant was 19 years old and lived with his parents and sister. On that day, his parents threw a family gathering for defendant's uncle and cousin, both of whom were in the military and would soon be leaving on deployment and for basic training. As part of the celebration, defendant's mother granted defendant permission to consume alcohol at the party. During the party, defendant and his mother were not in the same room at all times, as people mingled about the house and yard. Defendant's mother observed defendant consume two or three beers during the course of the evening.
¶ 4 At approximately 3:43 a.m. on June 4, 2009, Officer Robert Kozlowski of the Belvidere police department responded to a call of suspicious activity. Kozlowski did not observe anything suspicious in the area identified in the call and he proceeded to a nearby 7-Eleven. About a block away from the 7-Eleven, Kozlowski observed defendant walking in the middle of the street. There were sidewalks in the area, and nothing was blocking their use. Kozlowski stopped to speak with defendant. Kozlowski could smell the odor of alcohol coming from defendant. Defendant admitted to having consumed alcohol, telling Kozlowski that he had consumed three beers. Defendant agreed to submit to a breath test, which revealed a blood alcohol content of 0.09. After submitting to the breath test, defendant admitted to Kozlowski that he had consumed some shots of alcohol in addition to the beers. Kozlowski placed defendant under arrest for underage drinking and transported him to the police department. There, defendant submitted to another breath test, which revealed a blood alcohol content of 0.097.
¶ 5 Defendant's mother was unaware of the fact that he had left the house.
¶ 6 The trial court found defendant guilty, concluding that he was not under the direct supervision of his mother upon leaving the house.
¶ 7 Following an unsuccessful motion for a new trial, defendant was sentenced to one year of court supervision. He then brought this timely appeal.
¶ 9 On appeal, defendant argues that the trial court erred in finding him guilty, because his conduct fell within the exemption provided for in the statute. Section 6-20(e) of the Liquor Control Act of 1934 (Act) (235 ILCS 5/6-20(e) (West 2008)) provides that "[t]he consumption of alcoholic liquor by any person under 21 years of age is forbidden." The Act further provides, however, that "the consumption [of alcoholic liquor] by a person under 21 years of age under the direct supervision and approval of the parents or parent or those persons standing in loco parentis of such person under 21 years of age in the privacy of a home, is not prohibited by this Act." 235 ILCS 5/6-20(g) (West 2008). We hold that defendant was not subject to this exemption.
¶ 10 Initially, defendant notes that in the trial court his counsel referred to section 6-20(g) as an affirmative defense to the charged offense. On appeal, he contends that section 6-20(g) is correctly classified as an exemption. The State concedes that section 6-20(g) is properly characterized as an exemption, and we agree. See People v. Foster, 195 Ill. App. 3d 926, 953 (1990) (where the provision was neither an element of the offense nor labeled as an affirmative defense, it was properly characterized as an exemption). The parties, citing to People v. Smith, 71 Ill. 2d 95 (1978), agree that the defendant bears the burden of proving the exemption by a preponderance of the evidence. We note, however, that Smith and the other cases that state that the defendant bears the burden of proving an exemption by a preponderance of the evidence all discuss the exemptions to the offense of unlawful use of a weapon (see generally 720 ILCS 5/24-2 (West 2008)). That statute specifically provides that the defendant bears the burden of proving those exemptions. 720 ILCS 5/24-2(h) (West 2008). Here, by contrast, the statute does not specifically provide that the defendant bears the burden of proving the exemption. However, because the parties agree upon the burden, we will assume that it applies.
¶ 11 There is no dispute that defendant had his mother's approval to consume alcohol and that all of the alcohol he consumed was consumed in the privacy of his parents' home. At issue is whether he was under the "direct supervision" of his mother when he consumed the alcohol. The trial court concluded that defendant was not under the direct supervision of his mother, based on the fact that his mother was unaware that he had left the house. Defendant contends that such a finding was error, as the exemption required that defendant be supervised only while consuming the alcohol, and there was no evidence that he consumed alcohol after he left the house. The State, in response, argues that the fact that ...