Opinion
3-11-0860
2013-10-11
PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT SPIESS, 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 the 12th Judicial Circuit,
Will County, Illinois,
Appeal No. 3-11-0860
Circuit No. 09-CM-4752
Honorable
Marilee Viola,
Judge, Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justice O'Brien concurred in the judgment.
Justice Schmidt specially concurred.
ORDER
¶ 1 Held: The State's evidence did not support defendant's conviction for violation of an order of protection beyond a reasonable doubt. ¶ 2 A jury convicted defendant, Scott Spiess, of two counts of violating an order of protection. 720 ILCS 5/12-30(a)(1) (West 2008). The trial court sentenced defendant to a 364-day term in jail with credit for time served. Defendant appeals, alleging the State did not prove his guilt beyond a reasonable doubt and the trial court abused its discretion by allowing the jury to consider a redacted version of defendant's police interview. We reverse.
¶ 3 BACKGROUND
¶ 4 On December 29, 2009, Terra Spiess, defendant's wife, appeared pro se and petitioned the trial court for an emergency order of protection on behalf of herself and the parties' minor children, H.S., age 13, P.S., age 6 and M.S., age 2, in case No. 09-OP-2339. The face of the emergency order entered by the court on December 29, 2009, indicated the order expired, before the date of issuance, on January 19, 2009. ¶ 5 The record indicates that Will County police served defendant with the emergency order, as entered by the court, shortly after midnight on December 30, 2009. Just over twelve hours later, an officer arrested defendant at the protected residence, where officers originally served defendant, for violating the emergency order of protection by being present at that same location while in the company of his children around 1:30 p.m. ¶ 6 The next day, December 31, 2009, the State charged defendant by information with two counts of unlawful violation of an order of protection. In count 1, the State alleged that on December 30, 2009, defendant made contact with 1616 Moran Dr., Shorewood, Illinois, a protected residence. In count 2, the State alleged that on that same date, defendant made contact with P.S. and M.S., protected minors. Neither count specified the time of the alleged violation. ¶ 7 On October 5, 2011, defense counsel filed a motion in limine requesting the court prohibit the introduction of a copy of the emergency order during defendant's trial. Defense counsel asserted the emergency order was invalid because the face of the order indicated it expired on January 19, 2009. Therefore, counsel argued, the emergency order was not in effect on December 30, 2009, the date of the alleged violations. The State responded the date of January 19, 2009, should have been January 19, 2010, and this mistake was simply a scrivener's error that did not affect the validity of the order. ¶ 8 The trial court agreed with the State. The court stated that "as everyone tends to do towards the end of the year, [it] forg[o]t to change the dating[.]" The court also noted the sheriff's service of process indicated the court entered the emergency order on December 29, 2009, and that it was in effect until January 19, 2010. The court determined the scrivener's error concerning the expiration date did not invalidate the order and denied defendant's motion in limine. ¶ 9 The trial began with the State's first witness, Ronald Elias, who testified he joined his daughter, Terra, his current wife Patricia E., his ex-wife Patricia H. and her current husband at Will County courthouse in December 2009. Ronald stated these family members came to the courthouse to obtain various orders of protection against defendant. The court issued three emergency orders of protection, one to each couple and an order for Terra and the children. Ronald acknowledged the face of the emergency order of protection benefitting Terra and the children misspelled Terra's street name as Morin Drive when the correct spelling was Moran Drive. ¶ 10 Will County police deputy Hester Williams testified that on December 30, 2009, he served defendant with the emergency order of protection together with a copy of the summons. Williams testified that cover sheets are typically given to the recipient when an individual is served with an emergency order of protection. The cover sheet showed that Williams personally served defendant with the order of protection at 12:16 a.m. on December 30, 2009 and it "[e]xpire[d] 01/09/2010." A supervisor and two other officers were present with defendant and Officer Williams in the kitchen of defendant's residence at 1616 Moran Drive when service took place. ¶ 11 According to Williams, at the time he served defendant, he read the order of protection to defendant, announcing that: (1) defendant was ordered to stay away from Terra and "other protected persons"; (2) protected persons included Terra and the "minor children" later identified in the order as H.S., P.S., and M.S.; (3) he must stay "000" feet away from Terra, the protected children, and their residence; and (4) Terra was granted exclusive possession of the residence at 1616 Morin Drive and defendant could not enter or remain present there. ¶ 12 The prosecutor asked Williams if the children were present when he served defendant with the orders of protection and other documents, and he responded that "one individual [was present] on the couch." Williams and the other officers left the residence after serving defendant with the orders of protection, but returned a short time later to ensure defendant did not have any firearms. Williams acknowledged the officers did not remove the children from the residence at the time they served defendant with the orders of protection. ¶ 13 Matthew Aharrah testified he worked as a patrol sergeant with the Village of Shorewood. Around 1:24 p.m. on December 30, 2009, Aharrah observed defendant on the front porch of 1616 Moran Drive talking on his cellular telephone with two patrol officers present. According to Aharrah, defendant indicated he was confused but acknowledged that Will County deputies served him with an order of protection earlier that day and also stated his two younger children were inside. Aharrah placed defendant under arrest for violating the order of protection. At the same time, another officer located two children, P.S. and M.S., who appeared to be safe, in the living room and kitchen area of the residence. ¶ 14 Shorewood police detective Brian Poulsen testified that on December 30, 2009, defendant's family came to the Shorewood police station for an escort to attempt to retrieve P.S. and M.S. from defendant's custody. According to Poulsen, the family did not know defendant or the children's whereabouts and believed that luggage and diapers were missing from the residence, so the chief of police instructed Poulsen to contact the Illinois State Police to issue an "[A]mber [A]lert" for the children. Poulsen testified that less than one hour later, the police located defendant and the children at approximately 1 p.m. on December 30 at 1616 Moran Drive and placed defendant under arrest. ¶ 15 Thereafter, Poulsen recorded an interview with defendant at the Shorewood police station after reading defendant his Miranda rights. Defendant informed Poulsen that the officers came to his residence around 1 a.m. and "provide[d] him with the emergency orders of protection." According to defendant, these officers "advised him of the orders[,]" and "served [him] with the papers [and] were very nice." The officers returned an hour later to make sure defendant did not have any guns and then left again. ¶ 16 Poulsen reported defendant initially stated he did not understand the orders of protection, but during the course of the conversation, defendant stated that after reading and discussing the orders with some friends, defendant "knew that he was not supposed to be at the residence and he was not supposed to be with the children, that the order specifically stated that." Poulsen also stated defendant "told [Poulsen] basically that he understood that the children and the house were protected on the orders of protection." Defendant nonetheless was under the impression that he could stay at the protected residence because the Will County police left him there after they initially served him with the orders of protection, and also left P.S. and M.S. with him after they served the orders of protection. ¶ 17 According to Poulsen, defendant then explained that one of the children woke him around 7:30 a.m. Defendant told Poulsen he took the children with him to CVS where he purchased cigarettes, traveled to McDonald's for breakfast, and then took the children with him to a bar. At the bar, defendant discussed the orders of protection with his friends and "what [defendant] could and couldn't do as far as what the directions of the order stated." Defendant informed Poulsen that he read through the orders of protection and "noticed the boxes had been checked." After Poulsen's testimony the State played a redacted version of the DVD interview for the jury. ¶ 18 Following the publication of the DVD, the State rested. The defendant moved for a directed verdict, which the trial court denied. The defense rested without presenting any evidence. ¶ 19 The jury convicted defendant of both counts of violating an order of protection. The cause proceeded immediately to sentencing. The court sentenced defendant to a 364-day jail term with day-for-day credit for 182 days of time served. Defendant filed a motion for a new trial, which the court heard and denied. Defendant appeals.
¶ 20 ANALYSIS
¶ 21 Defendant contends the State's evidence was insufficient to establish, beyond a reasonable doubt, that he knowingly or intentionally violated a valid emergency order of protection on December 30, 2009. The State contends the evidence presented supports defendant's guilt because defendant received the order of protection which clearly informed defendant he should not be present at the protected residence or near his children. ¶ 22 When faced with a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the prosecution and determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985). Reversal is warranted only if the evidence is so palpably contrary to the weight of the evidence or so unreasonable, improbable, or unsatisfactory as to justify reasonable doubt of defendant's guilt. People v. Leach, 398 Ill. 515, 524-25 (1948). ¶ 23 A person commits the offense of violating an order of protection if he commits an act that was prohibited by a trial court in a valid order of protection and that act occurs after the offender has been served notice of the contents of the order or otherwise has acquired actual knowledge of the contents of the order. 720 ILCS 5/12-30(a)(1) (West 2008); People v. Hinton, 402 Ill. App. 3d 181, 183 (2010). The statutory language incorporates a trial court's order as an element of the offense. People v. Davit, 366 Ill. App. 3d 522, 527 (2006). ¶ 24 In this case, the State charged defendant, in count I, with making contact with 1616 "Moran" Dr. in Shorewood, Illinois, a protected residence, on December 30, 2009. The State also charged defendant, in count II, with making contact with P.S. and M.S., protected persons, on December 30, 2009, in contravention of the emergency order of protection. ¶ 25 The trial court found the emergency order of protection contained obvious typographical errors that did not invalidate the emergency order. The court's finding is supported by existing case law with respect to other types of court orders. See People v. Wyzgowski, 323 Ill. App. 3d 604, 606 (2001) (this court upheld defendant's statutory summary suspension and concluded an erroneous date in an officer's sworn report was a scrivener's error that did not affect the validity of the sworn report); see also Dauderman v. Dauderman, 130 Ill. App. 2d 807, 810 (1970) (trial court's amendment of a divorce decree was proper where the failure to include the omitted term was a clerical error and the correction reconciled that term with the rest of the decree). We agree the emergency order of protection was valid on December 30, 2009, in spite of the scrivener's errors with respect to the termination date and the misspelling of "Moran." Thus, we reject the notion that the State's evidence did not establish, beyond a reasonable doubt, a valid emergency order of protection was served on defendant before his arrest approximately 12 hours later. ¶ 26 In addition to proving the validity of the emergency order of protection, the State must also prove defendant knowingly violated the terms of the emergency order after service. This court has previously noted that knowledge is "the awareness of the existence of facts that make a defendant's conduct unlawful." Hinton, 402 Ill. App. 3d at 184, citing People v. Gean, 143 Ill. 2d 281 (1991). ¶ 27 In this case, the officers had knowledge of the contents of the emergency order and, in spite of this knowledge, allowed defendant to remain at the protected address with his children on two separate occasions during the early morning hours of December 30, 2009. On each occasions, the officers left the protected address without arresting defendant or advising him that his decision to remain at that address with the children could be construed as an unlawful act. ¶ 28 Here, it is undisputed the officers failed to remove the children or arrest defendant when they returned to the residence to check for firearms approximately one hour after serving the order at 12.16 a.m. It appears the officers either shared defendant's confusion regarding the terms of the emergency order of protection or, like defendant, did not perceive defendant's decision to remain at the protected address with his children after service constituted violated the provisions to stay "000" feet away the protected children and the protected residence. ¶ 29 The undisputed facts reveal that the officers returned to the protected residence an hour after service, discovered defendant present at the location with his children, but did not arrest defendant for violating the order or instruct defendant to leave. Based on these unique circumstances, we fail to see how a rational trier of fact could conclude this particular defendant should have known what the officers failed to recognize, that defendant's continued presence with his children at the protected residence after service violated the terms of the emergency order of protection. ¶ 30 Therefore, we conclude the evidence was insufficient to show defendant knowingly violated the emergency order of protection. Due to our conclusion on this issue, we elect not to consider defendant's contention that the trial court erred when it admitted the redacted version of the DVD interview with Poulsen.
¶ 31 Conclusion
¶ 32 For the foregoing reasons, we reverse the judgment of the circuit court of Will County. ¶ 33 Reversed. ¶ 34 JUSTICE SCHMIDT, specially concurring. ¶ 35 I concur in the judgment of the majority, but write separately to point out the Hobson's choice presented to defendant by the emergency order of protection and police actions. Police officers served defendant with an emergency order of protection in the middle of the night while his two children were with him at the residence. This left defendant with the choice of remaining with the children in violation of the order, or driving the children somewhere, also in violation of the order. The State argued that he should have driven the children to the police station or to someone else's home. How? First of all, the police had been at defendant's home twice and had not taken the children. Secondly, one would have to speculate that if he were stopped while driving the children to the police station, that he would not have been arrested and charged with having contact with the children. He would have been in violation of the order. That is, it would be impossible for defendant to drive the minor children anywhere without violating the order of protection, just as it was impossible for him to remain in the home with the children without violating the order of protection. He was in violation of the order the moment police walked out the door the first time. Ironically, the only thing defendant could have done to avoid being in violation of the order was to abandon the protected children in the middle of the night. It will remain a mystery to me as to why police, when they served the order of protection, did not either call someone to pick up the children, or take custody of the children, and advise defendant that he needed to vacate the premises. ¶ 36 The fact that it was several hours later when defendant was ultimately arrested is of no moment. Defendant was served with this order while in the protected premises and with two protected children. Police left him there, in the protected premises, with the protected children; there was simply nothing the defendant could do that would not either violate the order, or expose the children to the risks associated with being left alone in the middle of the night.