People v. Taylor

          Appeal from the Circuit Court of Cook County No. 14 CR 17533, Honorable Dennis J. Porter, Judge Presiding.

          Attorneys for Appellant: James E. Chadd, Patricia Mysza, and Drew A. Wallenstein, of State Appellate Defender's Office, of Chicago, for appellant.

          Attorneys for Appellee: Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Annette Collins and Veronica Calderon Malavia, Assistant State's Attorneys, of counsel), for the People.

          HARRIS JUSTICE delivered the judgment of the court, with opinion. Justice Connors concurred in the judgment and opinion. Presiding Justice Mikva dissented, with opinion

          OPINION

          HARRIS JUSTICE

         ¶ 1 Following a 2015 bench trial, defendant Michael Taylor was convicted of aggravated stalking and sentenced to four years' imprisonment with fines and fees. On appeal, defendant contends that his conviction for aggravated stalking (720 ILCS 5/12-7.4 (West 2014)) must be vacated because the underlying stalking statute (id. § 12-7.3) is facially unconstitutional due to vagueness. Defendant also contends for the first time on appeal that two of his fees are erroneous and that certain fees are actually fines for which he must receive presentence incarceration credit. For the reasons stated below, we remand for defendant to raise his fines and fees claims in the circuit court and otherwise affirm.

         ¶ 2 I. JURISDICTION

         ¶ 3 On October 8, 2015, the circuit court found defendant guilty of aggravated stalking. On December 4, 2015, the court sentenced defendant to four years' imprisonment with fines and fees. Defendant filed his notice of appeal that day. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. July 1, 2017) governing appeals from a final judgment of conviction in a criminal case.

         ¶ 4 II. BACKGROUND

         ¶ 5 Defendant was charged with two counts of aggravated stalking (720 ILCS 5/12-7.4(a)(3) (West 2014)) for, between August 18 and August 30, 2014, in violation of an order of protection in case No. 14-DV-74667, knowingly engaging in a course of conduct against Tiffany DeShields by, on two or more occasions, surveilling her, calling her, sending her text messages, and threatening her. The counts alleged that defendant knew or should have known that his course of conduct would cause a reasonable person to, in count I, fear for her safety, and in count II, suffer emotional distress. See id. § 12-7.3(a)(1), (2).

         ¶ 6 Defendant was also charged with four counts of stalking allegedly committed between July 12 and August 30, 2014. Two counts (counts III and IV) mirrored the two counts of aggravated stalking except for not alleging that defendant violated an order of protection. Id. Count V alleged that defendant knowingly and without justification followed or surveilled DeShields on or about July 12 and August 23 and transmitted a threat of bodily harm to DeShields by threatening to kill her, while count VI alleged the same two instances of surveillance and alleged that defendant placed DeShields in reasonable apprehension of immediate or future bodily harm. Id. § 12-7.3(a-3)(1), (2).

         ¶ 7 At trial, DeShields testified that, in August 2014, she had been dating defendant for about two months. She broke up with him on July 12, 2014, because she learned that he was not employed. He was at her home when she told him she was breaking up with him, and he left but then began "banging on" the back door. When she told him to go away, he made various remarks including, "I will kill myself. I will kill you," so she called the police. On July 24, defendant came to her home, told her that he had a job, and asked her to "give me another chance." Because he had a job, she "did get back with him at that time." However, on July 29, after defendant borrowed her cell phone, she broke up with him again. He left with her cell phone and took her car. When he returned the car on July 31, he apologized for taking her car and home keys. She asked him to get into her car, and she drove him to the police station. As they were in the car, he said he would kill her and himself "if you don't get back with me." When she brought defendant to the police station, she obtained an emergency order of protection against him.

         ¶ 8 On August 18, 2014, the circuit court granted DeShields a plenary order of protection against defendant. At trial, she identified copies of the August 1 emergency and August 18 plenary orders of protection. On August 23, defendant was at DeShields's home "as usual," talking with her through the back door and stating that he would "kill you" and "kill myself." She told him to leave, reminded him that he was "not supposed to be here," and mentioned calling the police. As he left, she saw him take her daughter's bicycle from the backyard, throwing it over the fence. She called the police, then called defendant to demand the return of the bicycle. When he refused "[be]cause you won't be with me," she said that "we could be together, just bring the bike." She said so to induce him to return the bicycle. He returned the bicycle later that day by bringing it "close" to her home.

         ¶ 9 On August 25, defendant was again in DeShields's backyard cursing, begging, and "banging" on her back door "trying to break down the door." In his begging, he repeated that he would kill himself if they were not together. She called the police, and he left. On the afternoon of August 29, defendant called her on the telephone; she recognized his voice. He said he was outside her home and asked her to come outside and "please be together." She called the police, but he was gone when they arrived. That night, two back windows of her home were broken by thrown bricks, and she saw defendant in the backyard with another brick in his hand that he threw "but missed." She called the police, and he fled.

         ¶ 10 Defendant sent DeShields "a lot" of text messages in the latter half of August 2014, using the cell phone he borrowed from her. Many of his messages said that he would "get back with" her, and some were threatening, including one threatening to kill DeShields and break her car windows. DeShields was shown a copy of an August 12 message in which defendant threatened to kill DeShields and Shavon Clash, her neighbor and babysitter; she agreed that the copy was accurate. The copy includes messages that DeShields should "[w]atch car before it blow up" and "d[o]nt get yo[ur] nieghbor [sic] killed." This threat left her "very terrified for me and my children." Indeed, all of these incidents left her feeling "threatened for my safety because of the defendant [a]ll the time" and also afraid for her two children.

         ¶ 11 On cross-examination, DeShields testified that defendant was "bothering me those whole two weeks" between the July 12 breakup and July 24 but she did not call the police because she was open to resuming the relationship if he had a job, as he did on July 24. She broke up with him on July 29 because, when he borrowed her cell phone, she saw texts between himself and various women referring to "how he slept with them." When he left that day, she unsuccessfully asked for the return of her cell phone but did not know he was leaving with her keys as well. When he returned her car on July 31 and she drove him to the police station, she did not mention to him at first where they were going. Once she did, he said he had to be with her, threatened to kill her if she was not with him, and asked her not to bring him to the station. He did not try to leave the car until they reached the station and he fled, but the police caught him immediately.

         ¶ 12 When DeShields filed for an emergency order of protection, she mentioned his death threats but not taking her cell phone or car, explaining that he returned the car by then and that he did not take the cell phone but failed to return it after borrowing it. When asked if she told police on the night of August 29 to 30 that she saw defendant in her yard with a brick in hand, she replied "I thought I did." She could not recall if she called police after the August 12 text message, though she called police about 30 times and filed about 20 reports. She admitted that she replied "okay" to one of defendant's text messages but explained that "that's the only time I was nice to him, the day he stole my daughter's bike" and that she tried to be calm when dealing with defendant "because you don't know what they're capable of."

         ¶ 13 Clash, DeShields's neighbor and babysitter in August 2014, testified that DeShields was dating defendant then, identifying defendant at trial. She saw him walking with DeShields in the latter half of August 2014. In the same period, she saw him "hop" the fence separating her home from DeShields's home and then heard him "banging and knocking" at DeShields's door and asking her to let him it. On another occasion, Clash saw him "verbally abusing" DeShields on the street in front of her home. On "[n]umerous" occasions, Clash saw defendant enter DeShields's backyard, stand outside her back door, and ask to be let in.

         ¶ 14 Following arguments, the court found defendant guilty of aggravated stalking under count II, based on causing emotional distress by his course of action. It also found him guilty of all four counts of stalking and merged them into aggravated stalking.

         ¶ 15 Defendant filed a general posttrial motion, claiming without particular allegations that he was denied due process, equal protection of the laws, and a fair trial. Counsel stood on the motion and his closing arguments regarding the sufficiency of the evidence, and the court denied the motion without further findings.

         ¶ 16 Following a sentencing hearing, the court entered a final judgment on count II only (720 ILCS 5/12-7.4(a)(3), 12-7.3(a)(2) (West 2014)) and sentenced defendant to four years' imprisonment with $449 in fines and fees. This appeal timely followed.

         ¶ 17 III. ANALYSIS

         ¶ 18 On appeal, defendant challenges his aggravated stalking conviction and ...