Opinion
No. 1-15-0852
11-29-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY ALLEN, 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 13560
Honorable Charles P. Burns, Judge, presiding.
JUSTICE FITZGERALD SMITH delivered the judgment of the court.
Presiding Justice Cobbs and Justice Howse concurred in the judgment.
ORDER
¶ 1 Held: Defendant's conviction for failing to register pursuant to section 3(a)(1) of the Sex Offender Registration Act (730 ILCS 150/3(a)(1) (West 2014)) is reversed, because the evidence presented was insufficient to prove beyond a reasonable doubt that he established a residence or temporary domicile in the city of Chicago.
¶ 2 Following a bench trial, defendant Terry Allen was convicted of failure to register with the Chicago Police Department within three days of establishing a residence or temporary domicile in the city of Chicago in violation of the Sex Offender Registration Act (SORA) (730
ILCS 150/3(a)(1) (West 2014)). Defendant appeals, arguing that the State did not prove beyond a reasonable doubt that: (1) he failed to meet the registration requirements of SORA because he attempted to register, but was turned away as he did not have a State identification card or the $100 registration fee; (2) he established a residence or temporary domicile; and (3) he was not registered elsewhere in Illinois. Because we find that the State failed to prove beyond a reasonable doubt that defendant established a residence or temporary domicile in the city of Chicago, we reverse his conviction.
¶ 3 Defendant was charged with one count of violating section 3 of SORA (730 ILCS 150/3 (West 2014)) in that he, "having previously been convicted of aggravated criminal sexual abuse under case number 00CR-28597, knowingly failed to register, in person, as a sex offender with the Chicago police department within 3 days of establishing a residence or temporary domicile in the city of Chicago, Cook County, Illinois." Defendant waived his right to a jury trial and, on December 29, 2014, the case proceeded to a bench trial.
¶ 4 The parties stipulated that, if called, Victor Ohl, of the Illinois Department of Corrections, would testify that, on February 7, 2014, prior to defendant's release from prison, he met with defendant and went over an Illinois Sex Offender Registration Act notification form. On the form, defendant provided the address of 3048 West Flournoy Street. Ohl admonished defendant regarding his obligation to register, by February 10, 2014, with the police agency where he was going to reside. Defendant initialed and signed both pages of the SORA notification form.
¶ 5 Officer Patrick Loftus testified that, on February 11, 2014, defendant came to the criminal registration unit and attempted to register as a sex offender. Loftus identified a copy of
the registration log from February 11, 2014, and the portion of that log which indicated that defendant was prevented from registering because he did not have an official State identification card (ID) and did not have money for the $100 registration fee. Loftus testified that, at the time, the criminal registration unit accepted State identification cards as valid forms of identification, but would also accept letters from probation or parole agents to verify a registrant's address. He also stated that fee waivers would be given to individuals who claimed to be indigent and that defendant did not request a waiver. To persons unable to register, officers of the criminal registration unit "explained what they needed in order to become registered. And there was no point in coming back if they did not have, a, the fee, the waiver, or the ID." Based on his review of defendant's registration file, Loftus testified that defendant did not complete a registration form in Chicago between the dates of February 10, 2014 and June 9, 2014. He also testified that 3048 West Flournoy Street is within 500 feet of a school, and that defendant would not have been able to register this address even if he had otherwise been able to register.
¶ 6 On cross-examination, Loftus testified that registrants had to request a fee waiver in order to be given one. He also testified that "based on [defendant's] IDOC form, it says he was residing at the Flournoy address." Loftus acknowledged that he did not have personal knowledge of where defendant was residing at the time, and that he did not "do any type of corroboration" to determine whether defendant was living at the Flournoy address.
¶ 7 Officer John Guettler testified that, on July 8, 2014, he and his partner received an assignment to arrest an individual who was being released from Cook County jail. At the jail, Guettler placed defendant, whom he identified in-court, into custody for non-compliance with
SORA registration requirements. As defendant was being processed at the police station, he told officers that his address was 3053 West Warren Boulevard, Chicago, Illinois.
¶ 8 On cross-examination, Guettler testified that he did not have firsthand knowledge of defendant's compliance status. He also testified that he did not have firsthand knowledge as to whether defendant lived at 3053 West Warren Boulevard, and did not go to that location to verify defendant's residential status. The State offered into evidence a certified copy of defendant's 2001 conviction for aggravated sexual abuse and indecent solicitation.
¶ 9 After argument, the trial court found defendant guilty as charged. In doing so, the court noted that "[w]hile it does appear to me that he did attempt to register on February 11th and wasn't able to do so, that does not end his obligations. That is not a defense that he tried to register one time." The court denied defendant's motion for a new trial, which argued (1) that SORA does not require a State identification card to register as a sex offender; (2) that the Chicago police department should have registered defendant as homeless instead of preventing him from registering; and (3) that the State failed to prove that defendant had established a residence or temporary domicile in Chicago. After a hearing, the court sentenced defendant to 39 months' imprisonment. Defendant filed a timely notice of appeal.
¶ 10 On appeal, we initially note that both parties argue at length whether defendant in fact failed to register pursuant to SORA where the record shows that he attempted to register but was turned away for failure to provide a State ID and pay the $100 registration fee. In doing so, the parties dispute whether SORA requires a defendant to provide a State ID and pay the fee in order to register. However, we need not address that argument here because defendant contends, and
we agree, that the State failed to prove beyond a reasonable doubt that he established a residence or temporary domicile in Chicago, and therefore that he was required to register.
¶ 11 The due process clause of the fourteenth amendment protects defendants against conviction in state courts except upon proof beyond a reasonable doubt of every fact necessary to constitute the charged crime. People v. Brown, 2013 IL 114196, ¶ 48; Jackson v. Virginia, 443 U.S. 307, 315-16 (1979). When a court reviews the sufficiency of evidence, it must determine " 'whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.' " People v. Cunningham, 212 Ill. 2d 274, 279 (2004) (quoting Jackson, 443 U.S. at 318). A reviewing court must decide 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 offense beyond a reasonable doubt. People v. Lloyd, 2013 IL 113510, ¶ 42. This means that we must draw all reasonable inferences from the record in favor of the prosecution, and that " '[w]e will not reverse a conviction unless the evidence is so improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of defendant's guilt.' " Id. (quoting People v. Collins, 214 Ill. 2d 206, 217 (2005)).
¶ 12 SORA was designed to aid law enforcement agencies in monitoring the whereabouts of sexual offenders by allowing " 'ready access to crucial information' " about their residency and movements. People v. Molnar, 222 Ill. 2d 495, 499 (2006) (quoting People v. Adams, 144 Ill. 2d 381, 388 (1991)). Section 3(a) of SORA imposes upon sex offenders and sexual predators the duty to register with the chief of police or sheriff in the jurisdiction where they reside or are "temporarily domiciled for a period of time of 3 or more days." 730 ILCS 150/3(a) (West 2014). Section 2 of SORA defines a fixed residence as "all places that a sex offender resides for an
aggregate period of time of 5 or more days in a calendar year." 730 ILCS 150/2(I) (West 2014). " ' Inherent in each definition is the idea of a specific location.' " People v. Gomez, 2017 IL App (1st) 142950, ¶ 15 (quoting People v. Robinson, 2013 IL App (2d) 120087, ¶ 23). Thus, to establish a violation of Section 3 of SORA, "the State was required to prove both (1) that the defendant resided or was temporarily domiciled at a specific location within Chicago, and (2) that the defendant failed to register there." Gomez, 2017 IL App (1st) 142950, ¶ 16.
¶ 13 After viewing the evidence in the light most favorable to the State, we find it insufficient to prove beyond a reasonable doubt that defendant established a residence or temporary domicile in the city of Chicago. Although the evidence presented at trial shows that defendant attempted to register a Chicago address and was turned away, the evidence does not establish that he actually resided at that address for one or more days before he attempted to register, or, for that matter, how long he remained at the address after being denied registration. The record shows that defendant, upon his release from prison on February 7, 2014, listed 3048 West Flournoy as his address on his SORA notification form. When he was arrested at the Cook County jail on July 8, 2014, he told officers that his address was 3053 West Warren Boulevard in Chicago.
¶ 14 Based on this record, the State essentially argues that it is reasonable to infer that defendant resided at the Flournoy address, or elsewhere in Chicago, for at least three days. Officers conducted no investigation into, and the State presented no corroborating evidence regarding, whether defendant actually stayed at the Flournoy or Warren address. Officer Loftus testified that he did not have personal knowledge of where defendant was residing at the time and that he did not do "any type of corroboration" to determine whether defendant was living at the Flournoy address that he had attempted to register. Moreover, while defendant was arrested
in Chicago, and told officers that he lived at 3035 West Warren Boulevard, Officer Guettler testified that he did not go to that location to determine if defendant actually lived there. Without any sort of corroborating evidence, it is speculative to conclude that defendant stayed at the Flournoy address, the Warren address, or anywhere else in Chicago, for the three days that is required to establish a "temporary domicile" as defined by SORA. See People v. Evans, 365 Ill. App. 3d 374, 376 (2006) (where the State proved the defendant's residence at a specific location through testimony of a building manager who stated that the defendant had moved into his girlfriend's apartment and that he saw him in the building "every evening."). As such, even drawing all reasonable inferences from the record in favor of the prosecution, we cannot say that this evidence reasonably supports a finding of guilt beyond a reasonable doubt. See Gomez, 2017 IL App (1st) 142950, ¶ 24 ("Reasonable inferences are one thing, but we will not fill in the gaps in the State's evidence with conjecture").
¶ 15 In support of this conclusion, we note that this court recently considered a similar challenge to the sufficiency of the evidence in Gomez, 2017 IL App (1st) 142950. There, the State charged the defendant with one count of failing to register pursuant to section 3(a)(1) of SORA, alleging that the defendant "knowingly failed to register, in person, as a sex offender with the Chicago police department within 3 days of establishing a residence or temporary domicile in the city of Chicago." Gomez, 2017 IL App (1st) 142950, ¶ 4. At trial, the State presented evidence that (1) the defendant was notified of his duty to register as a sex offender upon release from prison; (2) that defendant attempted to register a Chicago address but was prevented from registering because the address was located too close to a school; (3) that defendant did not register in the City of Chicago, or any other jurisdiction in Illinois, for a period
of 11 months; and (4) that defendant had been arrested in Chicago on an unrelated offense. Gomez, 2017 IL App (1st) 142950, ¶¶ 5-9. The trial court found defendant guilty as charged. Gomez, 2017 IL App (1st) 142950, ¶ 10.
¶ 16 On appeal, this court reversed the defendant's conviction, finding that the State failed to prove beyond a reasonable doubt that defendant had established a residence or temporary domicile within the City of Chicago. Gomez, 2017 IL App (1st) 142950, ¶ 20. In doing so, this court reasoned that, while the State proved that the defendant attempted to register a Chicago address and was turned away, "we [did] not know if defendant resided at that address for one or more days before he attempted to register, or how long he remained at that address after being denied registration, if at all." Gomez, 2017 IL App (1st) 142950, ¶ 23. Here, as in Gomez, there was no evidence regarding where defendant resided or how long he remained at a particular address.
¶ 17 The State nevertheless contends that the evidence was sufficient to prove that defendant "failed to register as a sex offender" because the evidence suggests that he did not register in anywhere in Illinois. We agree that, as the trial court pointed out, defendant was not completely relieved of his duty to register as a sex offender simply because he attempted to register once and was turned away. However, defendant was not charged with failing to register within three days of his release from prison (730 ILCS 150/3(c)(4)(West 2014)) or failing to register as a person without a fixed address (730 ILCS 150/6 (West 2014)). Rather, defendant was specifically charged with failing to register after establishing a residence or temporary domicile in Chicago. As we determined above, the State failed to prove beyond a reasonable doubt that he had established a residence or temporary domicile in Chicago. Accordingly, the State failed to prove
defendant guilty of the offense with which he was charged. See Gomez, 2017 IL App (1st) 142950, ¶ 2 ("Whatever might be said about defendant's failure to register, and regardless of whether he may have violated other provisions of state law, the State presented no evidence that he violated section 3(a)(1)").
¶ 18 For the foregoing reasons, we reverse defendant's conviction.
¶ 19 Reversed.