Appeal from the Circuit Court of Cook County No. 08CR5043 The Honorable Colleen McSweeney-Moore Judge Presiding.
The opinion of the court was delivered by: Justice Fitzgerald Smith
JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Presiding Justice Lavin and Justice Sterba concur in the judgment and opinion.
¶ 1 After a jury trial, defendant Samuel Velez was convicted of child abduction and sentenced to two years' incarceration. On appeal, defendant contends: (1) he was denied his due process rights due to a permissive presumption contained in a jury instruction given to the jury; (2) the child abduction statute under which defendant was convicted is unconstitutionally vague as applied to defendant; (3) the trial court erred in denying his motion for a bill of particulars; (4) the trial court erred in precluding defense counsel from cross-examining a police officer regarding what he found when searching defendant's van; (5) the trial court erred in finding that defendant's offense of child abduction was sexually motivated where that inference was not supported by the underlying facts of the offense; and (6) he was denied his due process rights where, because there were inadequate procedural safeguards during his hearing on sexual motivation, the trial court arbitrarily found the offense to be sexually motivated. For the following reasons, we affirm.
¶ 3 Defendant was charged via indictment with one count of child abduction. Prior to trial, defendant filed a motion for a bill of particulars, requesting that the State define the "exact statement(s) or action(s)" which form the "other than a lawful purpose." The State filed a response in which it stated that it would "rely on the statements and actions of the defendant when he confronted [J.H.] on February 20, 2008 at approximately 3:15 P.M. in the area of 9500 S. Oak Park Avenue, Oak Lawn, Illinois as summarized in the Oak Lawn Police Department reports that were previously tendered to defense counsel." The court denied the motion.
¶ 4 The following evidence was adduced at trial. On February 20, 2008, 14-year-old J.H. was an eighth-grade student at Simmons Middle School located on 95th Street in Oak Lawn, Illinois. When school ended that day at 3 p.m., J.H. walked down 95th Street to meet her mother. J.H. was wearing a hooded winter coat and had a school bag on her shoulder.
¶ 5 J.H. normally met her mother near the Car Max on 95th Street after school. That day, however, J.H. arrived at Car Max and saw that her mother was not there. As was prearranged for occasions when her mother could not get to their meeting place on time, J.H. began walking down 95th Street, westbound to Oak Park Avenue. Per the plan, she would continue heading westward until she would meet up with her mother.
¶ 6 As J.H. walked down 95th Street, a man in a white van slowed down, looked at her, smiled, and beeped his horn. J.H. testified at trial that the man did a "double take." J.H. tried to ignore him, put her head down and kept walking. J.H. identified defendant as this man in court.
¶ 7 J.H. continued walking, and eventually turned right onto Oak Park Avenue. When she turned, she noticed the same white van parked on Oak Park Avenue with the passenger side window rolled down and the engine still running. J.H. put the hood on her coat up and kept walking, trying to ignore the man even though her path took her right by the passenger window. As she walked past the van, the man said, "Hey baby girl, how you doing?" The man was sitting in the driver's seat, leaning toward the open window, and motioning for her to approach the van.
¶ 8 J.H. felt scared and began walking faster in an attempt to get away from defendant. Defendant asked her if she needed a ride home. J.H. continued walking quickly. Defendant began driving slowly alongside J.H. and asked her if she had just gotten out of school. J.H. did not respond. Defendant continued driving alongside J.H. and again asked her if she needed a ride home. At that point, J.H. saw her mother down the street and told defendant, "No, my mom's right there." J.H. ran to her mother's car and defendant drove away.
¶ 9 Meanwhile, Kathleen H., J.H.'s mother, had driven to Oak Park Avenue to look for J.H. As she sat in her car, she saw J.H. walking toward her. As Kathleen H. waited, she saw a white van pull around the corner, park on the side of the road, and roll down the passenger side window. Kathleen H. then saw J.H. turn the corner and pull her hood up. She thought something did not feel right because she could see J.H. "tensing up" near the van. As she watched, she saw defendant lean over and talk to J.H., and saw J.H. walk faster in her attempt to escape defendant. Defendant kept pace with J.H. in his van.
¶ 10 J.H. reached Kathleen's car and told her mother what had happened. Kathleen called the police and began following defendant's van. She provided the police with a description of the van and the license plate number. The police instructed her to stop following the van and to meet them in a nearby parking lot. At the parking lot, Kathleen and J.H. spoke with various officers, including Chicago police officer Brian Williams. J.H. told Officer Williams that the man who had been following her had a goatee.
¶ 11 After speaking with Kathleen and J.H., Officer Williams and his field training officer Thomas Culhane returned to the Oak Lawn police station to continue their investigation. They had the license plate number as well as information that the van had the word "Integra" written on the side. They contacted Integra Healthcare Systems, a medical equipment delivery service. Officer Williams spoke with Barbara Anderson, the director of operations, and informed her of the situation.
¶ 12 Anderson contacted her driver supervisor, Michael Volarevic, and asked him to look up the vehicle plate number to see which driver was assigned to that van. Volarevic did so and saw that it was assigned to defendant. He then called defendant on his cell phone and was unable to reach him. About 20 minutes later, defendant called Volarevic. Defendant was scheduled to be at 119th Street and Halsted, but he informed Volarevic that he was in Oak Lawn having lunch. Volarevic instructed defendant to go to the Oak Lawn police station, explaining that the police had gotten a complaint. He asked defendant what had happened. Volarevic testified that defendant then told him he did not know what he was talking about. He explained he had just eaten lunch, jumped in his van, and "saw just a good-looking girl on the street, and just whistled at her. I didn't get out of my car or anything." Volarevic also noted that, when he saw defendant the morning of February 20, 2008, defendant had a "very short clean-cut goatee."
¶ 13 On cross-examination, Volarevic denied having spoken to police in February 2008. He testified that he first talked with the police a year and a half after the incident.
¶ 14 Anderson informed the police that defendant was the driver of the van in question. Around 6 p.m., defendant arrived at the police station, and Officer Williams noticed that he looked as though he had recently shaved with a dry razor. He did not have a goatee. After being informed of his Miranda rights, defendant agreed to talk with the police.
¶ 15 Defendant told the officers that he had been in the area of 95th and Natoma at 3 p.m. that day placing a to-go order at the Lucky Burrito restaurant. Defendant said he then proceeded to the 9400 block of Oak Park Avenue, parked his van, and ate his burrito. Defendant said he was parked there for about 10 minutes and, during that time, he did not speak to anybody or see anybody.
¶ 16 Officer Williams testified that he then went to the Lucky Burrito and verified that defendant had placed a to-go order that afternoon. The restaurant's video surveillance recording showed defendant entering the restaurant and placing his order, and also showed the van with "Integra" written on it parked outside.
¶ 17 Later that evening, J.H. and Kathleen identified defendant in a photo array at the police station. They also identified defendant's van in the parking lot as the one they saw earlier.
¶ 18 On February 21, J.H. and her parents returned to the police station to speak with Cook County Assistant State's Attorney (ASA) Nicholle Hempel. ASA Hempel testified at trial that J.H. seemed to be a "typical grammar age school student" who "looked young." J.H. and Kathleen identified defendant in a lineup.
¶ 19 ASA Hempel then spoke with defendant, who again waived his Miranda rights. ASA Hempel testified that defendant gave her an account of the day similar to that he had previously given Officer Williams. Specifically, defendant said he was working on February 20, and that, around 3:00 p.m., he purchased a burrito at the Lucky Burrito and parked at 95th Street and Oak Park to eat in his van. Defendant claimed that he remained in his van and did not talk to or see anybody else. Defendant told ASA Hempel that he had worn a goatee in the past, but that he shaved it off two or three days prior.
¶ 20 The jury found defendant guilty of child abduction. Defendant filed a motion for a new trial, which was denied. The court sentenced defendant to two years' incarceration. It also found that the offense in this case was sexually motivated, explaining that it could think of situations where an individual attempts to lure a child into a vehicle where it might not be sexually motivated, such as where the individual holds the child for ransom. However, in this case, it believed the crime was sexually motivated.
¶ 23 I. Jury Instruction Issue
¶ 24 Defendant first contends that the trial court improperly instructed the jury. Specifically, defendant argues that a jury instruction given, Illinois Pattern Jury Instruction 8.11A (Illinois Pattern Jury Instruction, Criminal, No. 8.11A (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 8.11A)) was improper as a matter of law because the permissive presumption within deprived defendant of due process where (1) there is no rational connection between the fact that defendant attempted to lure a child into his van and the resulting presumption that he did so with an unlawful purpose; and (2) the State failed to introduce corroborating evidence of defendant's guilt, and the presumed fact that defendant acted with an unlawful purpose "does not flow beyond a reasonable doubt from the proven facts." We disagree.
¶ 25 First, the State urges this court to review this issue for plain error, arguing that defendant forfeited this issue on appeal by failing to properly preserve it. See People v. Chapman, 194 Ill. 2d 186, 225 (2000) (failure to properly preserve an alleged error by both an objection at trial and a written posttrial motion constitutes a procedural default of that error on review). Specifically, the State argues that, while defendant argued to the trial court that the jury instruction was impermissible because it "essentially shifted the burden to him and indicated to the jury that he needed to present some evidence in order to rebut the inference" and included the same issue in his posttrial motion, that issue differs from the issue before us on appeal. Defendant responds that he did, in fact, properly preserve this issue for appeal because his argument on appeal, that the instruction created an unlawful permissive presumption, is the same as that made below, that is, that the instruction impermissibly shifted the burden of proof to defendant. We disagree with the State that the argument on appeal presents a "wholly different issue" than that presented below, and find that defendant properly preserved this issue for appeal.
¶ 26 The purpose of jury instructions is to convey to the jury the correct principles of law applicable to the evidence submitted to it so that the jury may reach a correct conclusion according to the law and the evidence. People v. Hopp, 209 Ill. 2d 1, 8 (2004). While the giving of jury instructions is generally within the discretion of the trial court, we review de novo the question of whether the jury instructions accurately conveyed the applicable law to the jury. People v. Parker, 223 Ill. 2d 494, 501 (2006). Rather than considering a jury instruction in isolation, we review whether the instructions given the jury " 'considered as a whole, fully and fairly announce the law applicable to the respective theories of the People and the defense.' " People v. Terry, 99 Ill. 2d 508, 516 (1984) (quoting People v. Kolep, 29 Ill. 2d 116, 125 (1963)).
¶ 27 The jury instruction in question reads:
"If you find that the defendant lured, or attempted to lure a child under 16 years of age into a motor vehicle, and that he did so without the consent of a parent or lawful custodian of the child, you may infer it was for other than a lawful purpose.
You are never required to make this inference. It is for the jury to determine whether the inference should be made. You should consider all of the evidence in determining whether to make this inference." Illinois Pattern Jury Instructions, Criminal, No. 8.11A (4th ed. 2000) (hereinafter IPI Criminal 4th No. 8.11A).
¶ 28 A person accused of a crime may only be convicted of a criminal offense upon proof that establishes guilt beyond a reasonable doubt. People v. Hester, 131 Ill. 2d 91, 98 (1989). Nonetheless, the State may be entitled to rely upon presumptions or inferences in order to establish a defendant's guilt. Hester, 131 Ill. 2d at 98. "A presumption is a legal device that either permits or requires the trier of fact to assume the existence of an ultimate fact, after establishing certain predicate facts." People v. Woodrum, 223 Ill. 2d 286, 308 (2006) (citing People v. Pomykala, 203 Ill. 2d 198, 203 (2003) ,citing People v. Watts, 181 Ill. 2d 133, 141 (1998)). "An inference is a factual conclusion that can rationally be drawn by considering other facts. Thus, an inference is merely a deduction that the fact finder may draw in its discretion, but is not required to draw as a matter of law." People v. Funches, 212 Ill. 2d 334, 340 (2004) (citing Michael H. Graham, Cleary & Graham's Handbook of Illinois Evidencei 302.2, at 81 (8th ed. 2004); 1 C. Fishman, Jones on Evidencei 4:1, at 299-300 (7th ed. 1992)); Woodrum, 223 Ill. 2d at 308 ("The fact finder is free to accept or reject a permissive presumption.")
¶ 29 Here, the instruction at issue contains an inference. An inference may also be referred to as a permissive presumption. People v. Frazier, 123 Ill. App. 3d 563, 572 (1984) ("An inference, occasionally referred to as a 'permissive presumption,' permits but does not require a jury to find that one fact is proved by the existence of another fact."). An inference does not violate due process where: (1) there is a rational connection between the basic fact and the presumed fact; (2) the presumed fact must be more likely than not to flow from the basic fact; and (3) the inference is supported by corroborating evidence of guilt. People v. Housby, 84 Ill. 2d 415, 424 (1981). "If there is no corroborating evidence, the leap from the basic fact to the presumed element must still be proved beyond a reasonable doubt." Funches, 212 Ill. 2d at 343 (citing Hester, 131 Ill. 2d at 100); Housby, 84 Ill. 2d at 421 (citing County Court v. Allen, 442 U.S. 140, 165-67 (1979)).
¶ 30 A person commits child abduction by, in relevant part, intentionally luring or attempting to lure a child under 16 years of age into a motor vehicle without the consent of a parent or lawful custodian for other than a lawful purpose. 720 ILCS 5/10-5(b)(10) (West 2008). The phrase "other than a lawful purpose" in the child abduction statute implies actions which violate the Criminal Code of 1961 (720 ILCS 5/1-1 et seq.) (West 2008)). People v. Williams, 133 Ill. 2d 449, 453-54 (1990). "The required showing * * * [of] 'other than a lawful purpose' is essentially a statement of the criminal intent, or mens rea. Criminal intent is a state of mind that is usually inferred from the surrounding circumstances." Woodrum, 223 Ill. 2d at 316 (citing People v. Maggette, 195 Ill. 2d 336, 354 (2001)).
¶ 31 The State presented sufficient evidence to satisfy the three elements set forth in Housby as to whether the act proved, i.e.,that defendant attempted to lure J.H. into his vehicle, was committed for "other than a lawful purpose." See 720 ILCS 5/10-5(b)(10) (West 2008). The evidence adduced at trial showed that J.H. was a 14-year-old girl who was walking along a sidewalk after school, carrying a bookbag. Defendant, a 41-year-old man whom J.H. did not know, saw her. He smiled at her, honked his horn, and slowed his van in order to talk to her.
J.H. tried to ignore him, put her head down, and walked faster. J.H. turned a corner and saw defendant parked in his van up the street. When she neared the van, defendant asked J.H. if she wanted a ride home. J.H. continued to ignore him. She put up her hood and walked faster. Despite all of this, defendant continued to pursue J.H. He paced her with his van, driving alongside her as she continued walking down the sidewalk. He called her "baby girl" and again asked her of she wanted a ride home. He leaned from the driver's seat to the passenger seat, motioning through the window for her to approach the van. Defendant only left J.H. alone when J.H. told him she saw her mother and began to run toward her mother's car.
¶ 32 We find a rational connection between the fact proved, i.e., that defendant attempted to lure a child under 16 into his vehicle, and the fact presumed, i.e.,that defendant did so with other than a lawful purpose. The jury accepted J.H.'s testimony that defendant used words and gestures designed to direct her to enter his car. She felt fearful, tried to ignore him, and then increased her pace in order to escape from defendant. Defendant called her "baby girl" and drove alongside her, beckoning her toward his vehicle. When viewed in connection with all of the other evidence adduced at trial, including defendant leaving the scene when J.H. told him she saw her mother, his attempt to change his appearance that day, and his denial to police that he had even seen J.H., the rational inference to be drawn is that defendant had an unlawful intent when he attempted to lure J.H. into his van.
¶ 33 We are not persuaded by defendant's argument that, because he did not touch, harm, or threaten J.H., there is no rational connection between the fact proved and the fact presumed. Specifically, defendant argues:
"There is no substantial assurance that just because [defendant] honked at J.H., asked her how she was doing, and offered her a ride home without her parent's consent, that he more likely than not did so for an unlawful purpose. *** [Defendant] spoke to a young girl in the middle of the afternoon on a busy street from his work van. [Defendant] did not touch or harm J.H. He did not threaten her. He did not get out of his van. As soon as J.H. said she did not need a ride, [defendant] drove away. The fact that [defendant] offered ...