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In re Omar F.

Court of Appeals of Illinois, First District

October 25, 2017

In re OMAR F., a Minor
Omar F., a Minor, Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

         Appeal from the Circuit Court of Cook County, Illinois, Juvenile Division. No. 16 JD 1740, The Honorable Kristal Royce Rivers, Judge Presiding.

          FITZGERALD SMITH JUSTICE delivered the judgment of the court, with opinion. Justices Howse and Lavin concurred in the judgment and opinion.



         ¶ 1 The minor respondent, Omar F., was adjudicated delinquent for armed robbery with a firearm and, following a dispositional hearing, was sentenced to 36 months' probation with various conditions. On appeal, the respondent argues that the State failed to prove him guilty beyond a reasonable doubt and that several conditions of his probation were unreasonable and, in the alternative, violated his constitutional rights to due process and freedom of speech and association. Specifically, the respondent complains of the following conditions: (1) that he "stay away" from gangs, guns, and drugs, (2) that he remove "those" from his social media accounts, (3) that he stop associating with or interacting with anyone who is a gang member, and (4) that he not post or be in any photos posted to Facebook or other social media accounts with people if they are in gangs. The respondent also contends that section 5-715(2)(s) of the Juvenile Court Act of 1987 (or Act) (705 ILCS 405/5-715(2)(s) (West 2016)), which permitted the court to limit his contact, direct or indirect, with all gang members, is unconstitutionally vague since it fails to define "contact, " does not contain a mens rea requirement, encompasses a broad range of legally permissible conduct, and encourages arbitrary enforcement. For the reasons that follow, we affirm in part and reverse and remand in part.

         ¶ 2 I. BACKGROUND

         ¶ 3 The record before us reveals the following facts and procedural history. On August 3, 2016, the State filed a petition for adjudication of wardship, charging the minor with armed robbery with a firearm (720 ILCS 5/18-2(a) (West 2014)), aggravated robbery (720 ILCS 5/18-1(b) (West 2014)), and robbery (720 ILCS 5/18-1(a) (West 2014)). The petition alleged that on August 2, 2016, while armed with a firearm, the minor respondent knowingly took property (i.e., a cell phone, book bag, and laptop computer) from the person of the victim, Azeez Soberu, by use of force or threatening the imminent use of force.

         ¶ 4 On March 20, 2013, the minor respondent appeared for an adjudicatory hearing together with his cousin and co-respondent, Tyreese J., also a minor. The State proceeded with a joint adjudicatory hearing against both minors, at which the following relevant evidence was adduced.

         ¶ 5 The victim, 23-year-old Azeez Soberu, testified that he is originally from Nigeria but that he has lived in Chicago for the past six years. Soberu stated that on August 2, 2016, he was headed to a friend's birthday party, where he was supposed to play music on his laptop. Soberu averred that to get to the birthday party he took the train but mistakenly got off at the wrong stop. At about 2:40 p.m., he was near 7939 South Vernon Avenue, when he realized that he was lost and telephoned his friend. His friend told him that he was in the wrong neighborhood and texted him the correct address. Soberu stated that he typed the correct address into the GPS system on his cell phone and then, looking and listening to the GPS instructions on his cell phone and with headphones in his ears, he proceeded to walk on South Vernon Avenue toward 79th Street to catch a bus back to his friend's place. At this point, he also had his backpack with his laptop over his shoulder. Soberu testified that as he was walking, two individuals, one light-skinned and the other dark-skinned, whom he later identified as the respondent and co-respondent approached him from the gangway between the apartments on 7939 South Vernon Avenue and walked in front of him.

         ¶ 6 According to Soberu, the respondent, who was covering his face with a "white rounded shirt" so that Soberu could only see his eyes, then pointed a gun and said, "get on the ground." Soberu described the gun as a "black pistol." Soberu stated that he did not get on the ground but instead gave his cell phone to co-respondent, who took it and ran off into an apartment building across the street. Soberu noticed that the respondent, who was still holding him at gunpoint, was distracted by co-respondent's movements, so he took the opportunity to punch the respondent on the side of the eye and grab for the gun. The respondent dropped the gun but continued to fight Soberu in an attempt to retrieve it. On cross-examination, Soberu stated that throughout the struggle, the respondent continued to yell at him, "give me back the gun." Soberu stated that at that point, he wanted to get to the nearest busy street, which was 79th Street, in the hope that there would be more people there and he could get help. In an effort to stop Soberu from walking away, the respondent grabbed at Soberu, tearing Soberu's shirt and pulling his backpack, which contained the laptop, to the ground. Still holding the gun, Soberu hit the respondent in the head with it. The respondent, however, refused to let go and continued to struggle with Soberu even after he was punched and started bleeding.

         ¶ 7 Soberu was attempting to run toward 79th Street, when he noticed the co-respondent returning from the direction of the building he had run off to. Soberu stated that the corespondent's face was not covered at this time and that he was wearing the same clothing Soberu had seen him in at the beginning of the attack. The co-respondent approached Soberu and punched him in the left eye. Soberu said he began to bleed and could not see and was afraid he would lose consciousness. He wanted to make sure his attackers did not have the gun, so he flung the gun as far away from himself as possible.

         ¶ 8 Soberu testified that at this point, both the respondent and co-respondent left, so he ran to Burger King on the corner of 79th Street to call the police. Soberu stated that the entire attack lasted no more than five minutes.

         ¶ 9 Soberu averred that soon thereafter the police arrived and he informed them about what had happened. Police officer Chambers told Soberu that the police would start searching the area, and she took Soberu back to Vernon Avenue where the incident took place. There, they found Soberu's backpack with the laptop inside, as well as his headphones. Soberu also found one of his shoes, which had fallen off in the struggle. Soberu testified that after picking up his belongings, he got into a police car and was driven about a block away. There, he saw the respondent sitting on the sidewalk with another police officer by him. Soberu immediately identified the respondent as the individual who attacked him with the gun. When, a few minutes later, the co-respondent walked out of a nearby building, Soberu immediately identified him as his other attacker-the one who had taken his cell phone.

         ¶ 10 At the adjudicatory hearing, Soberu pointed out on a map where the events occurred and also identified photographs depicting his injuries.

         ¶ 11 On cross-examination, Soberu explained that he lives on the north side and needed to take the red line to his friend's house. He testified that he should have gotten off the train sooner, near 47th Street, but missed his stop because the address he was initially following on his GPS had been incorrect. Although there was some confusion in Soberu's testimony as to what direction he had been walking in prior to the attack and what public transportation he had taken to end up on Vernon Avenue, Soberu affirmatively stated that after getting off a train, he boarded a bus, before telephoning his friend. Soberu was also certain that he was listening to the GPS instructions with his headphones and walking toward 79th Street to find transportation to head back north when he was attacked.

         ¶ 12 On cross-examination, Soberu stated that before the attack he had never seen or met the respondent or co-respondent. He acknowledged that when he saw the respondent and corespondent approaching him, both attempting to cover their faces with T-shirts, he did not run immediately. He stated, however, that he did not do so because he did not know what was about to happen.

         ¶ 13 On cross-examination, Soberu denied that he was in the neighborhood because he intended to meet a girl from a dating website. He further denied that he ever harassed, approached, or grabbed any girl. Instead, Soberu testified that he never saw any girls and that no girls were involved in the incident. He also denied that he called the police because he thought he was in trouble for beating a boy. He also denied that there was no gun and that he hit the respondent with a metal pipe.

         ¶ 14 Chicago police officer Arshanette Chambers next testified that at about 2:40 p.m. on August 2, 2016, together with her partner, Officer Joe Buckley, she responded to a call for an armed robbery victim at the Burger King located on 79th Street. Once there, Officer Chambers encountered Soberu, who was bleeding from his arms, sweating profusely, had a swollen head, ripped shirt, and a missing shoe. Because Soberu could not tell the police the exact location of where he was attacked, she suggested they all go for a ride in the squad car to locate it. At Vernon Avenue, they stopped and exited the vehicle, looking for the location of the attack. While walking southbound on Vernon Avenue, somewhere in the middle of the block, they encountered Soberu's backpack on the street near a car tire. Near the gangway at 7939 South Vernon Avenue, they found Soberu's shoe and a pair of white headphones.

         ¶ 15 Officer Chambers testified that at this point, the police received a call over the radio indicating a possible second robbery victim on Eberhart Avenue, which was only one block away. The officers drove to that location, bringing Soberu along. As soon as the officers turned the corner on Eberhart Avenue, however, Soberu pointed out the window to the respondent, who was sitting in front of a multi-flat building, bleeding from his head, and said, "that's the guy who robbed me. That's him right there." Already on the scene were Sergeant Vargas and another police unit. According to Officer Chambers, co-respondent then came out of the building in front of which the respondent was sitting, and Soberu immediately identified him his other attacker. Both the respondent and co-respondent were arrested.

         ¶ 16 On cross-examination, Officer Chambers admitted that although Soberu had told her that his assailants had tried to cover their faces with their white T-shirts, she never included this fact in her incident report. Officer Chambers also acknowledged that the police never reviewed a nearby camera video. She agreed that when she first observed the respondent sitting on the sidewalk, he had significant injuries to his head. She also noticed that there were a few girls outside of the building next to where the respondent was sitting, but admitted that she never interviewed them. Officer Chambers also admitted that her incident report reflected that when she spoke to Soberu, he told her that the co-respondent "punched him in the head, at which time [respondent] ordered him to the ground at gunpoint."

         ¶ 17 After the State rested, the trial court heard and denied the respondent's motion for a directed finding. The defense then called Monique J., the respondent's cousin and corespondent's sister. Monique testified that on August 2, 2016, she lived with her mother, sisters, and brothers, including the co-respondent, at 7942 South Eberhart Avenue. At about 2:40 p.m. that day, Monique and her sister, Erica, were walking back home from a gas station located at 79th Street and King Drive, when a man, she had never met before, grabbed her left arm and asked her if she was the girl from MeetMe (a dating website). Monique identified the man as Soberu. Monique told Soberu that she was not the girl from the website, but he kept insisting that she was. Monique then started yelling "stop" and "let me go." At the same time, Erica yelled for the respondent, and the respondent came out of their home. Monique stated that the respondent never had a weapon and was not covering his face with anything. The respondent told Soberu to leave Monique alone, but Soberu refused and told the respondent to go back into the house.

         ¶ 18 Monique testified that Soberu eventually let her go but continued to argue with the respondent. At some point, he became angry and started pushing the respondent, and the respondent pushed him back. A fight ensued and punches were thrown, but Soberu eventually ran off, and the respondent chased him toward 79th Street and Vernon Avenue. Monique lost sight of both of them and went into her house. When, a minute later, the respondent returned, his head "was busted, " there was blood all over his face, he was "turning colors, " and began vomiting. She stated that Erica then called for assistance. Instead of an ambulance showing up first, however, a police sergeant pulled up and asked what was wrong with the respondent.

         ¶ 19 On cross-examination, Monique admitted that at the time of the incident, there were many people inside her house, including her four brothers and their friends, but only the respondent and his friend, Armani, came out when Erica called for help. She denied that corespondent ever went outside of the building or even saw Soberu. Monique also admitted that Erica did not call for police after the respondent fought with and chased Soberu. Instead, Erica called for help only after the respondent returned injured. Monique also admitted that when the police sergeant arrived she never told him that she had been attacked or assaulted by Soberu.

         ¶ 20 After the attorneys were finished questioning Monique, the trial court asked her whether she ever attempted, in any way, to have the man that grabbed her arrested, detained, or spoken to by the police, and she stated that she did not. The only explanation Monique offered for failing to tell the police Soberu grabbed her after her brother and cousin were arrested in connection with the incident was that "it was not that big of a deal."

         ¶ 21 After closing arguments, the trial court found the respondent guilty of all three charged offenses and adjudicated him delinquent. In doing so, the court found Monique's testimony not credible and Soberu's testimony to be credible, despite the "language barrier." The trial court acknowledged that Soberu's testimony on cross-examination about what buses and trains he took prior to the incident confusing, but stated that this confusion only added to his credibility as it showed that he "had no idea where he was."

         ¶ 22 On May 2, 2017, the cause proceeded to a dispositional hearing. Prior to that hearing the court reviewed the April 27, 2017, social investigation report prepared by the respondent's probation officer. Among other things, that report reflected that the respondent had three prior referrals to the juvenile court. On January 9, 2014, he was charged with armed robbery, robbery, and theft, but all of the charges were nol-prossed. On April 19, 2014, he was charged with residential burglary, burglary, knowing damage to property and criminal trespass to field/motor vehicle, but all charges were again nol-prossed. On September 8, 2015, the respondent was charged with criminal trespass to vehicles but was found not guilty. In addition, the social ...

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