Opinion
No. 1-14-2448
08-31-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVIN PAYNE, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 14 CR 02740
Honorable James B. Linn, Judge Presiding.
JUSTICE HOWSE delivered the judgment of the court.
Presiding Justice Ellis and Justice McBride concurred in the judgment.
ORDER
¶ 1 Held: Defendant's conviction for approaching a child in a public park by a child sex offender is reduced to attempt (approaching a child in a public park by a sex offender); the evidence failed to prove beyond a reasonable doubt defendant approached a child while the child was on the grounds of a park; the evidence proved beyond a reasonable doubt defendant intended to approach a child in a park and took a substantial step toward the commission of that offense.
¶ 2 Following a bench trial the circuit court of Cook County found defendant, Marvin Payne, guilty of being present on real property comprising a public park when persons under the age of 18 are present on the grounds and approaching a child under 18 years of age. The trial court
sentenced defendant to one year in prison. Defendant appealed arguing the State failed to prove he made contact with a minor in the park. Although we reject defendant's argument, we reduce defendant's conviction to attempt (approaching a child in a park by a sex offender) and remand for resentencing.
¶ 3 BACKGROUND
¶ 4 The State charged defendant with one count of false personation of an attorney and two counts of violating section 9.3 of the Criminal Code of 2012 (720 ILCS 5/11-9.3(a-10), (c-7) (West 2012)) based on an incident in Levin Park in Chicago. Relevant to this appeal the State charged defendant with knowingly being present in a public park when a person under the age of 18 years old was present, and approaching, contacting, or communicating with a child under 18 years of age after having been convicted of aggravated criminal sexual abuse. The matter proceeded to a bench trial.
¶ 5 Michael H. testified at defendant's trial. Michael was 15 years old when he testified but on the day of the incident with defendant Michael was 14 years old. On the date in question Michael was riding his bicycle to Levin Park for football practice. He stopped for a traffic signal at the intersection of Laramie and Ohio when defendant approached him in a car. Michael testified defendant said "Hi, I'm a mentor," through the car's passenger-side window. Defendant asked Michael if he played sports and Michael responded he played football. Defendant asked Michael if he had a mentor and if he would like one. Michael said "No." Michael testified he was about to ride off when defendant asked where he played football. Michael told defendant, then defendant asked Michael for his mother's phone number so he could call her. Michael gave him the number. Michael testified defendant said he would like to see Michael run. Michael said "Okay." and proceeded to the park.
¶ 6 Michael testified that after he arrived at the park he was talking to his coaches. There were children in the park, in the playgrounds, and on the basketball courts at the time. The State asked Michael:
"Q. Where were you in relation to the playground and basketball courts?
A. By the street.
Q. Were you near the field where you practice football?
A. Yes."
Michael's coaches were in a vehicle parked on the street. At first Michael testified the coaches did not get out of the vehicle to talk to Michael; but on redirect examination, he stated the coaches got out of the vehicle to talk to him. Michael testified that when his coaches got out of the vehicle to talk to him, he was standing on the passenger's side of the vehicle, which was furthest from the park. Michael testified he was on the street when he had the conversation with his coaches. Michael was told football practice was cancelled. Defendant then pulled up behind the coach's vehicle.
¶ 7 Michael testified defendant's arrival made him feel "kind of weird" so he relayed what transpired between defendant and Michael. His coaches then went and spoke to defendant. Michael initially testified the coaches met defendant halfway to defendant's car; and on cross-examination he testified defendant walked up to the coach's vehicle. Michael testified he was on the other side of the coach's vehicle with his bike. Michael testified he saw defendant step on park property. Michael testified defendant had a conversation with his coaches on the park property. Michael left and went to a nearby school. His coaches later found him at the school and took him back to his grandfather's home, where Michael's father picked up Michael and took him to the police station.
¶ 8 Terrance Sirleaf, one of Michael's coaches, testified he was at the park with fellow coaches Darryl Holms and Devonte Williams, and the owner of the football club for which Michael played, Glenn Lewis. The coaches were there to let the players know that practice was cancelled that day. They were parked in a conversion van "on the park side" of the street. Sirleaf testified Michael arrived and he had a conversation with Michael. Sirleaf testified that next, defendant arrived at the park, got out of his vehicle, and walked "through the side of the park *** up to the van" he and the other coaches were sitting in. Sirleaf walked up to defendant, introduced himself, and got back into the van while defendant finished a phone call. Defendant then walked up to the van and started a conversation with Lewis. Lewis was sitting in the driver's seat. Defendant walked on the grass between the street and the sidewalk on the side of the park to get to Lewis.
¶ 9 Lewis testified that when defendant arrived at the park, Lewis initially spoke to defendant while sitting in his van. The van was parked on the side of the street closest to the park such that if Lewis stepped out of the van he "would be stepping directly into the park." Defendant walked directly to Lewis's van. The initial conversation with defendant took place at the driver's side door with defendant standing in the park. After their initial conversation Lewis exited the van. Lewis walked around the front of the vehicle to the other side of the van. Lewis testified that the other coaches indicated to him nonverbally that they were not comfortable with the situation. At that time, "Michael was standing on the—in the street with me at the door." On redirect examination, Lewis testified he "eventually got out of [his] car and walked over to the street, *** where Michael was standing." At that point, defendant came "all the way around the vehicle [to] where I was" as they continued to talk. Lewis testified Michael was standing next to Lewis. Defendant eventually left and walked back around the van. Lewis told Michael to get on his bike and go home. Lewis drove to a gas station. While there, he learned that Sirleaf had "pulled up
Marvin Payne on his cell phone," which caused Lewis to "get back to Michael as fast as possible for his safety." Lewis saw on Sirleaf's cell phone that defendant was a sex offender. They found Michael, put his bike in the van, and drove him home.
¶ 10 The parties stipulated defendant was convicted of aggravated criminal sexual abuse and that he completed his duty to register as a sex offender in 2010.
¶ 11 The trial court found defendant guilty of count II for being present on real property comprising a public park when persons under the age of 18 are present on the grounds and approaching a child under 18 years of age. The trial court acquitted defendant of false personation of an attorney and offering services to a minor by a child sex offender. The court stated: "[T]here's no question that he's not supposed to be having contact with people under the age of 18. He did that. I do believe it happened in Levin Park." The court sentenced defendant to one year in prison.
¶ 12 This appeal followed.
¶ 13 ANALYSIS
¶ 14 As it pertains to this appeal, the State charged defendant with violating section 11-9.3(a-10) of the Code, which reads as follows:
"It is unlawful for a child sex offender to knowingly be present in any public park building, a playground or recreation area within any publicly accessible privately owned building, or on real property comprising any public park when persons under the age of 18 are present in the building or on the grounds and to approach, contact, or communicate with a child under 18 years of age, unless the offender is a parent or guardian of a person under 18 years of age present in the building or on the grounds." 720 ILCS 5/11-9.3(a-10) (West 2012).
¶ 15 Defendant asserts he is not challenging the credibility of the witnesses, only whether the settled facts are sufficient to prove every element of the charged offense beyond a reasonable doubt, and asks this court to review his claim de novo. We decline. "A reviewing court, when reviewing the sufficiency of the evidence, must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.]" (Emphasis and internal quotation marks omitted.) People v. Universal Public Transport, Inc., 2012 IL App (1st) 073303-B, ¶ 33. "The trier of fact must determine the witnesses' credibility, decide how much weight to give each witness's testimony, resolve conflicts in the evidence, and draw reasonable inferences from the testimony. [Citations.] We will reverse a trier of fact's findings and credibility determinations only if they are against the manifest weight of the evidence. [Citations.]" Id.
¶ 16 Initially, we note we agree with defendant's assertion that to convict under this statute the State had to prove beyond a reasonable doubt defendant approached, contacted, or communicated with a minor, and mere presence in a park while children are also present is not enough to violate the statute. Defendant's sole contention on appeal is that the State failed to prove an element of the offense with which he was charged.
¶ 17 The parties have focused on the "approach, contact, or communicate" element of the statute. Defendant argues there is no evidence he approached, contacted, or communicated with Michael in Levin Park. Instead, he argues, the evidence establishes defendant only made contact with Michael at the intersection, and approached only Lewis and Sirleaf at the park. Consequently, defendant argues, the State failed to prove every element of the offense, so his conviction must be reversed. The State responds the evidence proves defendant did approach Michael in the park because Lewis testified defendant walked toward him and Michael on the
driver's side of Lewis's car, and there is no requirement in the statute that defendant actually speak to Michael to commit the offense, only that he approach (to come or go near or nearer to in place or time) Michael.
¶ 18 The State needed to prove that defendant approached Michael on the grounds of a park. On appeal the State argues that defendant's argument he did not approach Michael in a park "ignores Lewis'[s] testimony that [] defendant walked towards him and [Michael] on the driver's side of his car ***." Lewis testified earlier that the driver's side of the van was parked right against the actual park. In their brief, the State wrote "Lewis exited the passenger side door of the car and walked around to the driver's side of the car, where M.H. stood with him." That is incorrect. Lewis was asked "So, when you were sitting in your van, were you in the driver's seat?" and he responded "Yes, I was." Lewis also testified he exited the vehicle and walked around the car where "Michael was standing on the—in the street with me at the door." (Emphasis added.) Michael testified that when his coaches got out of the vehicle to talk to defendant, Michael was standing on the passenger's side of the vehicle, which was furthest from the park. Michael testified he was on the street when he had the conversation with his coaches before defendant arrived. Michael was asked the following questions and gave the following answers:
"Q. When they [(the coaches)] got out of the car and they talked to you, where were you standing in relation to the street?
A. I was on the passenger's side.
Q. Of the car?
A. Yes.
Q. And the passenger's side of the car, was that closest to the park or furthest from the park?
A. Further.
Q. And when you had the conversation with your coaches, were you in the car or on the street?
A. On the street.
Q. When the Defendant pulled up, where did he come to, behind the car or in front of their car?
A. Behind."
¶ 19 The evidence proves that defendant entered the park. Michael testified defendant entered the park; Sirleaf testified defendant walked on the grass on the side of the park; and Lewis testified he spoke to defendant from the driver's side of his van with defendant standing in the park. We also construe the term "approach" in the statute such that regardless whether defendant spoke to Michael, defendant's actions constitute "approaching" Michael. "In interpreting a statutory provision, words should be given their plain and ordinary meaning. [Citation.] The dictionary can be used as a resource to ascertain the ordinary and popular meaning of words. [Citation.]" People v. Ellis, 296 Ill. App. 3d 862, 865 (1998). Merriam-Webster defines "approach" as "to draw closer to." We find defendant approached Michael within the meaning of the statute because defendant exited his vehicle and intentionally went closer to where Michael was with his coaches and spoke to the coaches about Michael.
¶ 20 Nonetheless there is another element of the offense with which we have concerns in this case. As applied to these facts, the pertinent language in the statue is the following: "It is unlawful for a child sex offender to knowingly be present *** on real property comprising any public park when persons under the age of 18 are present *** on the grounds and to approach *** a child under 18 years of age ***." (Emphasis added.) 720 ILCS 5/11-9.3(a-10) (West 2012). The plain language of the statute requires the minor to be on grounds of the park when
the defendant approaches the minor. However, the evidence proves that when defendant pulled up behind the van, exited his vehicle, stepped on the park property, and walked toward the van, Michael was standing in the street. In fact, the evidence proves that Michael was in the street throughout the entire encounter with defendant at Levin Park. Michael testified on redirect that when he had a conversation with his coaches (before defendant arrived) he was "[o]n the street." On redirect examination Michael also testified that when the coaches got out of the car, after defendant pulled up in his vehicle, Michael was on the passenger's side of the car, which was furthest from the park. Lewis and Sirleaf testified defendant approached the van and spoke to Lewis. Lewis was on the driver's side of the car, which was closest to the park; and Sirleaf specified that defendant walked on the grass next to the sidewalk on the side of the park. But Michael testified on cross-examination that when defendant approached the van Michael was "on the other side with [his] bike." Lewis testified the driver's side of his van was right against the actual park. Lewis testified that after talking to defendant from the driver's seat he got out of his van and walked over to the street where Michael was standing, and at that point defendant came "all the way around the vehicle" to where Lewis and Michael were standing.
¶ 21 We will not construe the statute to mean that a sex offender is prohibited from being on the real property comprising a park while children are present on the grounds of the park and approaching a child who is not on the grounds of the park. "The primary rule of statutory construction is to ascertain and give effect to legislative intent." Ellis, 296 Ill. App. 3d at 864. The legislature's intent was to protect children on the grounds of parks from sex offenders. See People v. Leroy, 357 Ill. App. 3d 530, 534-35 (2005) ("the prohibitive subsections of section 11-9.4 of the Criminal Code of 1961 (720 ILCS 5/11-9.4 (West 2002)) [(which included the statutory language at issue in this case)] are intended to protect children from known child sex offenders"). The interpretation of the statute that would be required to convict defendant would
be contrary to that intent. Had the legislature intended to extend the protections of section 11-9.3(a-10) to this circumstance, it could have done so, just as it did in other parts of this statute. See, e.g., 720 ILCS 5/11-9.3(b), (b)(2) (West 2014) ("It is unlawful for a child sex offender to knowingly loiter within 500 feet of a school building or real property comprising any school while persons under the age of 18 are present in the building or on the grounds;" "It is unlawful for a child sex offender to knowingly loiter on a public way within 500 feet of a public park building or real property comprising any public park while persons under the age of 18 are present in the building or on the grounds and to approach, contact, or communicate with a child under 18 years of age, unless the offender is a parent or guardian of a person under 18 years of age present in the building or on the grounds" (Emphases added.)). "[A] court must consider every statutory provision and attach a reasonable meaning to every word or phrase. [Citation.] When a statute is unambiguous, it must be enforced as enacted, and a court may not depart from its plain language by reading into it exceptions, limitations, or conditions not expressed therein. [Citation.]" People v. Herman, 347 Ill. App. 3d 525, 529 (2004).
¶ 22 We construe section 11-9.3(a-10) to prohibit a sex offender from approaching a child who is on the grounds of a public park. Defendant was present in a public park and approached Michael. However, the evidence does not prove beyond a reasonable doubt that Michael was on the grounds of the park when defendant entered the park or when defendant approached Michael. Therefore, the State failed to prove an element of the offense beyond a reasonable doubt, and defendant's conviction for violating section 11-9.3(a-10) cannot stand.
¶ 23 Nonetheless, but for the happenstance that Michael rode his bike to the passenger side of Lewis's van rather than the driver's side, defendant's conviction would be affirmed.
"[W]hen the evidence fails to prove beyond a reasonable doubt an element of the convicted offense, a reviewing court may enter judgment on a lesser-included
offense, even where the lesser-included offense was not charged at trial. [Citation.] The authority to enter judgment on a lesser charge comes from common law and Illinois Supreme Court Rule 615(b)(3) ('the reviewing court may *** reduce the degree of the offense of which the appellant was convicted'). [Citation.] In determining whether judgment may properly be entered on an uncharged lesser-included offense, we must use the charging instrument approach. [Citation.] Under this test, an offense may be deemed a lesser-included offense even though every element of the lesser offense is not explicitly contained in the indictment so as long as the missing element can be reasonably inferred from the indictment allegations. [Citation.] The charging instrument approach consists of two steps. [Citation.] First, the court determines whether the offense is a lesser-included offense by reviewing the charging instrument. We examine the indictment and determine whether the factual allegations provide a 'broad foundation' 'main outline' of the lesser offense. [Citation.] If the charging instrument describes the lesser offense, the court then considers whether the evidence at trial sufficed to uphold a conviction on the lesser offense. [Citation.]" (Internal quotation marks omitted.) People v. Sanchez, 2014 IL App (1st) 120514, ¶ 20.
¶ 24 Applying the rationale required for this court to exercise its authority under Rule 615(b)(3), we find that a conviction may properly be entered on the offense of attempt. "A person commits attempt when, with intent to commit a specific offense, he or she does any act which constitutes a substantial step towards committing that offense. 720 ILCS 5/8-4(a) (West 2012)." People v. Freneey, 2016 IL App (1st) 140328, ¶ 20. "Precisely what is a substantial step must be determined by evaluating the facts and circumstances of each particular case."
People v. Smith, 148 Ill. 2d 454, 459 (1992). "By statute, attempt to commit a crime is a lesser included offense of the substantive charge. [Citation.]" People v. Kincaid, 21 Ill. App. 3d 851, 856 (1974) (citing now 720 ILCS 5/2-9(b) (West 2014)). Further, the charging instrument charging defendant with approaching a child in a park as a sex offender sets out the "main outline" of the offense of attempt to commit that crime. Sanchez, 2014 IL App (1st) 120514, ¶ 20. The evidence is sufficient to uphold a conviction for attempt (approaching a child in a park by a sex offender). It is clear defendant had the specific intent to approach Michael in a public park. Defendant spoke to Michael at the intersection and learned he was going to football practice at a public park. Defendant then drove to that public park where he saw Michael talking to four adult men. Defendant exited his vehicle, stepped onto the real property comprising the park, and drew closer in physical proximity to Michael. Defendant's arrival at the park and walking toward Michael and his coaches put defendant in "dangerous proximity" to successfully committing the charged offense. People v. Hawkins, 311 Ill. App. 3d 418, 423 (2000) ("A substantial step should put the accused in a 'dangerous proximity to success.' [Citation.]"). See also Smith, 148 Ill. 2d at 462 ("In each case, the defendant's physical proximity to an identified, settled target enabled the fact finder to conclude beyond a reasonable doubt that the defendant had gone beyond preparation and achieved dangerous proximity to success.").
¶ 25 "A court of review *** will not reduce the degree of offense purely out of merciful benevolence. There must exist some evidentiary weakness upon which the court can rely in reducing the degree of the offense. [Citation.]" People v. Mau, 88 Ill. App. 3d 924, 925 (1980). In this case, we have identified the evidentiary weakness in the State's case against defendant for approaching a child in a public park. The State failed to prove the child was on the grounds of the public park when defendant entered the park and approached him. But for the fortuity of where Michael stood with his bike, defendant's conviction likely would have been affirmed.
Defendant put himself in dangerous proximity to successfully approaching Michael in a public park, and attempt is a lesser included offense of the crime charged. Accordingly, we exercise our authority under Illinois Supreme Court Rule 615(b) to reduce the offense for which defendant was convicted to attempt (approaching a child in a park by a sex offender). We remand to the trial court to resentence defendant in light of our holding. People v. Williams, 267 Ill. App. 3d 870, 880 (1994) ("we believe it appropriate to remand to the trial court for resentencing in light of the fact that the degree of the offense of which defendant was convicted has been reduced").
¶ 26 CONCLUSION
¶ 27 For the foregoing reasons, we reduce defendant's conviction and remand for proceedings consistent with this order.
¶ 28 Reduced and remanded.