Defendant’s conviction for unlawful contact with a streetgang member was reversed, since the evidence that the person defendant had contact with was a civil finding by a preponderance of the evidence that the person was a gang member, and that civil finding was insufficient to meet the State’s burden of proving beyond a reasonable doubt that the person was a member of a streetgang.
Appeal from the Circuit Court of Boone County, No. 10-CM-776; the Hon. John H. Young, Judge, presiding.
Thomas A. Lilien and Yasemin Eken, both of State Appellate Defender's Office, of Elgin, for appellant.
Michelle J. Courier, State's Attorney, of Belvidere (Lawrence M. Bauer and Aline Dias, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Presiding Justice Burke and Justice Hutchinson concurred in the judgment and opinion.
¶ 1 In November 2011, after a bench trial, defendant, Artemio Rubalcava, was convicted of unlawful contact with streetgang members (720 ILCS 5/25-5(a)(3) (West 2010)) and sentenced to 12 months of conditional discharge. Defendant appeals, arguing that: (1) the evidence was insufficient to sustain his conviction; and (2) the court erred in relying on inadmissible hearsay evidence. Because we agree with defendant's first argument, we reverse defendant's conviction.
¶ 2 I. BACKGROUND
¶ 3 For context, we note that the statute defining the crime of which defendant was convicted provides that "[a] person commits unlawful contact with streetgang members when he or she knowingly has direct or indirect contact with a streetgang member as defined in Section 10 of the Illinois Streetgang Terrorism Omnibus Protection Act [(Act)]" (740 ILCS 147/10 (West 2008)) after he or she was "ordered by a judge in any non-criminal proceeding to refrain from direct or indirect contact with a streetgang member or members." 720 ILCS 5/25-5(a)(3) (West 2010).
¶ 4 A. Case No. 09-CH-268: Civil Court Order
¶ 5 In 2009, in case No. 09-CH-268, the Boone County State's Attorney brought, pursuant to the Act, a civil suit against the "Latin Kings, et al." The "et al." referred to multiple individual defendants, including defendant in the instant case. However, the State's case against defendant was settled. An agreed settlement and injunctive order, entered against defendant on August 27, 2009, provided, in part, as follows:
"3. Upon the admission of [defendant], to the allegations of the complaint, the court finds that the People of the State of Illinois are entitled to injunctive relief against [defendant], and the court hereby orders [defendant] enjoined and restrained for the duration of this agreed settlement from the following activities within the State of Illinois:
(a)Standing, sitting, walking, driving, gathering, or appearing anywhere in public view with any other defendant or known Latin King gang member; and
(b)Standing, sitting, walking, driving, gathering, or appearing anywhere in public view with any gang member as defined in 740 ILCS 147/10[.]"
In addition, defendant acknowledged that the foregoing prohibitions constituted a "judicial order in [a] non-criminal proceeding prohibiting the defendant's knowing direct or indirect contact with a streetgang member or members within the meaning of 720 ILCS 5/25-[5(a)(3)]." The order was signed by the State's Attorney, defendant, and the trial judge (signature illegible).
¶ 6 In an 18-page memorandum decision issued on April 30, 2010, by trial judge Eugene G. Doherty, case No. 09-CH-268 was resolved against the remaining defendants, including Antonio Delgadillo. In that memorandum, the court referenced evidence showing "dozens of examples" of Latin Kings graffiti defacing numerous properties, noting that the graffiti was identifiable as such by virtue of Latin Kings symbology, initials, or otherwise. The court found that the general identification of Latin Kings symbology was supported by the testimony of West Chicago Deputy Chief of Police Bruce Malkin, while the specific identification of the graffiti in evidence as containing Latin Kings symbology was supported by the testimony of Detective David Dammon. The court found that the Latin Kings constitute a "streetgang" as defined in section 10 of the Act (740 ILCS 147/10 (West 2008)), basing its finding on: (1) the fact that the graffiti promoted the Latin Kings; and (2) Malkin's testimony.
¶ 7 The court next evaluated the evidence supporting Latin Kings membership as to each defendant. The court found that, as to some of the defendants, the State did not meet its burden of establishing that they were gang members. As to Delgadillo, however, the court found, by a preponderance of the evidence, that he was a member of the Latin Kings. The court noted Dammon's testimony that, in his opinion, Delgadillo was a member of the Latin Kings. Further, the court noted that Sergeant Mark Pollock testified that, on July 4, 2008, Delgadillo admitted to him that he was a member of the Latin Kings. Officer Kaplan testified that Delgadillo made the same admission to him on August 30, 2008, and Detective Woody testified that, on July 13, 2009, Delgadillo told him that he had been an associate of the Latin Kings for three years and became a full-fledged member the prior year. Further, the court noted that it had considered an exhibit showing Delgadillo's tattoo of a kingly figure wearing a five-pointed crown with the initials "ALK, " which Malkin and Dammon testified represented the words "Almighty Latin Kings." According to the court, the tattoo also appeared to include "13K, " which Malkin and Dammon testified represented terminology against the Surenos gang. Finally, the court considered an exhibit showing Delgadillo wearing Latin Kings colors (a gold and black sweatshirt) in the presence of several individuals, at least three of whom were flashing recognizable Latin Kings hand signs. Although Delgadillo testified that he was not a Latin Kings member and that the initials in the tattoo were "HLK, " which represented the Los Angeles neighborhood in which he was born, the court found that the State had proved that Delgadillo was "more likely than not" a member of the Latin Kings. "Most significant to the Court are Delgadillo's multiple admissions of membership and his tattoos reflecting Latin Kings terminology."
¶ 8 Concerned about potential infringement on the remaining defendants' constitutional rights to associate in noncriminal ways, the court entered a "no association" order (as requested by the State) but stayed enforcement of the order so that the defendants could take advantage of the opportunity to "step away" from the gang. Finally, the court noted that the case ...