People v. Leib , 2022 IL 126645 ( 2022 )

2022 IL 126645IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 126645)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DONALD LEIB, Appellant.
Opinion filed June 16, 2022.
JUSTICE OVERSTREET delivered the judgment of the court, with opinion.
Justices Garman, Theis, Michael J. Burke, and Carter concurred in the judgment
and opinion.
Chief Justice Anne M. Burke dissented, with opinion, joined by Justice Neville.
OPINION
¶1 Defendant, Donald Leib, was charged in the circuit court of Cook County with
being a child sex offender in a school zone in violation of section 11-9.3(a) of the
Criminal Code of 2012 (Code). 720 ILCS 5/11-9.3(a) (West 2014). Following a
bench trial, the circuit court found defendant guilty and sentenced him to one year
in prison. He appealed, arguing that he was not proven guilty beyond a reasonable
doubt because the State failed to establish that he was on “real property comprising
any school” (see id.). In the alternative, defendant argued that, even if the property
at issue was properly considered “real property comprising any school,” the State
failed to establish that defendant knew he was on such property. The appellate court
affirmed (2020 IL App (1st) 170837-U), and we allowed defendant’s petition for
leave to appeal. Ill. S. Ct. R. 315 (eff. Oct. 1, 2020). For the following reasons, we
affirm the appellate court’s judgment.
¶2 BACKGROUND
¶3 In September 2015, the State charged defendant with knowingly being present
on real property comprising any school when persons under the age of 18 are
present in the building or on the grounds. See 720 ILCS 5/11-9.3(a) (West 2014).
Defendant executed a jury trial waiver, and a bench trial was held before the circuit
court of Cook County on December 5, 2016.
¶4 At defendant’s trial, the pastor of Queen of Martyrs Parish, Reverend Edward
Mikolajczyk, testified for the State regarding the general layout of the parish’s
property. He testified that the parish includes a church at 103rd Street and Central
Park Avenue, a school with a connected gym building at 3550 West 103rd Street,
and a rectory at 10233 Central Park Avenue. He further testified that the parish
owns a parking lot (the St. Louis Avenue parking lot), which is located at 103rd
Street and St. Louis Avenue, across the street adjacent to the gym. Reverend
Mikolajczyk acknowledged that the school’s name is not displayed on the gym
building but testified that the St. Louis Avenue parking lot, although located across
the street from the gym building, is school property.
¶5 Reverend Mikolajczyk also testified that the parish was hosting an annual
festival between September 24 and September 26, 2015. He stated that the festival,
which included a carnival with rides for children in the St. Louis Avenue parking
lot, was a combined fundraiser for the parish church and school. Reverend
Mikolajczyk testified that the festival’s flyer advertised the event to be “under [the]
auspices of Queen of Martyrs” and that, although the flyer did not refer directly to
the school, “people underst[oo]d that as being the parish and the school fundraiser.”
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¶6 Defense counsel then showed Reverend Mikolajczyk several photographs of
the buildings comprising the parish complex, which were admitted into evidence.
Reverend Mikolajczyk identified the grounds of the parish and the school, a parking
lot immediately behind the school, and the St. Louis Avenue parking lot, which is
across St. Louis Avenue from the gymnasium. He acknowledged that the
gymnasium building contained lettering identifying it as “Queen of Martyrs John
Vitha Hall” and did not contain any lettering or markings indicating that it is a
gymnasium or part of a school.
¶7 Reverend Mikolajczyk identified a photograph of a sign located in a corner of
the St. Louis Avenue parking lot, which reads “Queen of Martyrs Bingo” and gives
the information regarding when bingo is held. He then testified that bingo is held
in the gymnasium building on Thursday evenings and children are not invited.
Finally, he testified that, while a third party would need to ask permission from the
church to use the parking lot, the school would not need permission from the church
because “the church and the school are synonymous so if there’s something that
needs to be used by the school and it [a]ffects the parking lot *** the church would
take care of that.”
¶8 Kathleen Tomaszewski testified that in 2015 she was the principal of Queen of
Martyrs School, which served pre-kindergarten through eighth grade. She testified
that, to her knowledge, the festival was a fundraiser for the school and parish and
consisted of a carnival, games, food, entertainment, and raffle. The carnival and
rides for the younger children were in the St. Louis Avenue parking lot, and the
street between the St. Louis Avenue parking lot and the gymnasium was blocked
off as well for the festival. Other parts of the festival were in the alley between the
school building/gymnasium and a parish convent, leading to the parking lot directly
behind the school. All the festival areas were thus open and connected to each other.
Ms. Tomaszewski testified that she did not know defendant, he was not the parent
or guardian of a student, and he was not given permission to come to the school.
¶9 During cross-examination, Tomaszewski acknowledged that the festival was
open to the public, its proceeds supported the school and church, and the flyer
advertising “Queen of Martyrs Fest” did not mention the school. She noted,
however, that the flyer stated there were “children[’]s games in the St. Joe’s room,”
which she testified is located inside the school. She testified that, while the sign in
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the St. Louis Avenue parking lot advertising bingo does not mention the school, the
church gives some of the bingo proceeds to the school. Tomaszewski further
testified that she told a defense investigator in August 2016 that the school did not
then use the St. Louis Avenue parking lot for recess, only for student drop off and
pickup, parking for athletic events, scout meetings, and car washes. She stated that
she did not believe there was a sign indicating that it was the lot where children
were dropped off. In fact, she testified that, other than the bingo sign, there was no
other signage on the lot that would indicate that it is school property.
¶ 10 Defendant’s neighbor, Jeanne Cassidy, testified for the State that on the evening
of September 26, 2015, she attended the annual Queen of Martyrs Fest and observed
defendant standing in front of a carnival ride in the St. Louis Avenue parking lot.
Knowing defendant to be a registered sex offender, Cassidy informed a uniformed
police officer who was attending the festival of defendant’s presence and showed
the officer a photograph of defendant on her phone. Cassidy watched the officer
escort defendant out of the festival, and later that evening, Cassidy filed a police
report. Cassidy testified that when she informed defendant the next morning that
she had filed the report, he responded that he “understood what [her] concerns
were.” She testified on cross-examination that, although she is not a parishioner of
the church, she identified the carnival as “the school carnival.” She admitted,
however, that on direct examination she had identified it as “the Queen of Martyrs
Parish Carnival.” Finally, she testified that she never saw defendant on the side of
St. Louis Avenue on which the gymnasium is located.
¶ 11 Chicago police officer Daniel McGreal testified that he attended the Queen of
Martyrs Fest to see his family during his shift that evening. Officer McGreal
described the event as a carnival held by the school, Queen of Martyrs, and the
church that is located on that corner, which extended through the back of the school
into a parking lot in the back on St. Louis Avenue. He testified that there were other
rides for kids behind the gymnasium and the school “and then you walk through a
door that goes through the school to the back parking lot,” where there were bands
and food vendors.
¶ 12 Officer McGreal stated that, as he was walking through the St. Louis Avenue
parking lot, Jeanne Cassidy approached and notified him that defendant was at the
festival. Eventually, Officer McGreal confronted defendant, requested
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identification, and asked defendant to walk to his squad car while he ran
defendant’s information. Officer McGreal told defendant that “he shouldn’t be
here, and [defendant] agreed” and left without incident.
¶ 13 Following Officer McGreal’s testimony, the parties stipulated that defendant
was convicted in 2007 of child abduction pursuant to section 10-5(b)(10) of the
Code (720 ILCS 5/10-5(b)(10) (West 2006)), for attempting to lure a child under
the age of 16 years into a vehicle without parental consent. A certified statement of
defendant’s conviction, from the circuit court of Cook County, was admitted into
evidence.
¶ 14 After the State rested, defendant filed a motion for a directed verdict, arguing
that the State had not established beyond a reasonable doubt that defendant knew
the St. Louis Avenue parking lot is “real property comprising any school,” when
“for all appearances” the parking lot is church property. Defense counsel argued
that the St. Louis Avenue parking lot “at best” may have been used by students but
that “dual usage” did not suggest that the lot is school property. The State responded
that the festival was a school fundraiser on property used for school functions. The
circuit court denied the motion.
¶ 15 Thereafter, defendant called Robert Pellegrini, chairperson of the Queen of
Martyrs Fest planning committee and a parishioner of 47 years. Pellegrini identified
a photograph of the St. Louis parking lot with the bingo sign on the corner.
Pellegrini acknowledged that the flyer did not state that the festival was for a
“school purpose” and described the St. Louis Avenue parking lot as the “school,
church, parish parking lot.”
¶ 16 Defendant’s brother, Robert, testified that he invited defendant to attend the
festival with him and his family. A parishioner of Queen of Martyrs for seven years,
Robert testified that he believed the St. Louis Avenue parking lot is “part of the
church” and “not school property.” Robert testified that he was aware that his
brother is not supposed to be around children in a school area and claimed that he
would not have brought defendant if he did not believe the festival was a church
function and on church property.
¶ 17 Irene Ahern Smith, the business manager at Queen of Martyrs Parish for 20
years, similarly testified that the St. Louis Avenue parking lot where the carnival
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was held is owned by the Queen of Martyrs Parish and that “[y]ou can’t really
differentiate between the parish and the church or the church and the school because
the Federal Government identifies us under one Federal ID number. *** We’re all
one Federal ID number.”
¶ 18 Defendant also presented the stipulated testimony of Evergreen Park detective
Anthony Signorelli that his police report of the offense described the “place of
incident” as a “church, synagogue, or *** temple.” The defense also moved to
admit its exhibits, including the photographs of the parish complex, into evidence,
which the circuit court permitted.
¶ 19 The circuit court found defendant guilty of being a child sex offender
knowingly present on real property comprising any school. 720 ILCS 5/11-
9.3 (West 2014). The circuit court noted that, although the defense theory of the
case was that a difference existed between school and church property, Reverend
Mikolajczyk was “pretty clear” that it was “all one.” The circuit court also noted
that the title of section 11-9.3 of the Code included the phrase “[p]resence within
[a] school zone by a child sex offender” (see id.) and that testimony established St.
Louis Avenue was blocked off for the festival, which to the circuit court meant that
the St. Louis Avenue parking lot was part of the school zone for the day.
¶ 20 Defendant filed a posttrial motion requesting a new trial, in which he argued
that the circuit court improperly found the word “zone” important, when that word
was only mentioned in the title of the statute, not the section under which he was
charged and convicted. Defendant also argued that the circuit court improperly
focused on what he “should have known,” rather than what he knew. The circuit
court denied defendant’s motion. After a sentencing hearing, the circuit court
sentenced defendant to 12 months in prison.
¶ 21 On appeal, defendant argued his conviction should be reversed because the
State did not prove beyond a reasonable doubt that the St. Louis Avenue parking
lot is “real property comprising any school.” In the alternative, he argued that, if
the St. Louis Avenue parking lot constituted school property within the meaning of
the statute, the State nonetheless failed to prove his knowledge beyond a reasonable
doubt.
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¶ 22 In a split decision, the appellate court affirmed. 2020 IL App (1st) 170837-U.
As a matter of law, the appellate court found that, because the Code’s “definition
of school includes its grounds, i.e., the area around and belonging to school
buildings,” “the parking lot of a school would qualify as part of the school grounds”
and, thus, as “ ‘real property comprising any school.’ ” Id. ¶ 26. The majority
further rejected defendant’s argument that real property comprising any school
must be contiguous with the school (i.e., not separated by a public street), reasoning
that defendant’s interpretation runs “counter to [both] the statute’s intent[ ] to
prevent the presence of child sex offenders on school grounds where children
congregate” and “the reality of urban school campuses.” Id. ¶ 27. The majority then
found that, “taking the evidence in the light most favorable to the State, a rational
trier of fact could have found that the St. Louis [Avenue] parking lot qualified” as
school property: among other things, the “evidence established that it was used for
student dropoff and pickup, recess, and parking for athletic events, scout meetings,
and car washes.” Id. ¶ 28.
¶ 23 As to the knowledge element of section 11-9.3(a), the majority held that “a
rational trier of fact could have found that defendant knew that he was present on
real property comprising a school.” Id. ¶ 31. The majority based its reasoning on
multiple witnesses testifying that the school and the church were a single entity,
that the festival’s purpose was to raise funds for a parish that included a parochial
elementary school, and that “ ‘hundreds’ of children were present.” Id.
¶ 24 Presiding Justice Mikva dissented, arguing that, although the parking lot where
the festival occurred was part of the grounds of the school and that defendant was
prohibited from being there under section 11-9.3(a), the State failed to prove
beyond a reasonable doubt that defendant knew he was on real property comprising
any school. Id. ¶¶ 38-46 (Mikva, P.J., dissenting). We granted defendant’s petition
for leave to appeal. See Ill. S. Ct. R. 315 (eff. Oct. 1, 2019).
¶ 25 ANALYSIS
¶ 26 On appeal, this court is asked to resolve two issues: (1) whether the St. Louis
Avenue parking lot is properly considered “real property comprising any school”
within the meaning of section 11-9.3(a) of the Code (720 ILCS 5/11-9.3(a) (West
2014)) and, (2) if so, whether the evidence is sufficient to prove that defendant was
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present on the St. Louis Avenue parking lot knowing that it was “real property
comprising any school” on the evening in question. We address these issues in turn.
¶ 27 “Real Property Comprising Any School”
¶ 28 The parties agree that the issue of whether property constitutes “real property
comprising any school” for the purposes of section 11-9.3(a) of the Code (id.) is a
question of first impression in Illinois. 1 Issues of statutory construction are
questions of law subject to de novo review. In re Jarquan B., 2017 IL 121483, ¶ 21.
The primary objective of statutory interpretation is to ascertain and give effect to
the intent of our legislature. Id. ¶ 22. This inquiry begins with examining the plain
and ordinary meaning of the statutory language, which is the surest and most
reliable indicator of legislative intent. Id. We construe the statute as a whole and
afford the language of the statute its plain and ordinary meaning. People v. Legoo,
2020 IL 124965, ¶ 14. Where that language is clear and unambiguous, we must
apply the statute without further aids of statutory construction. Id. Thus, we begin
our analysis with the language of section 11-9.3(a) of the Code, which provides, in
relevant part, as follows:
“It is unlawful for a child sex offender to knowingly be present in any school
building, on real property comprising any school, or in any conveyance owned,
leased, or contracted by a school to transport students to or from school or a
school related activity when persons under the age of 18 are present in the
building, on the grounds or in the conveyance ***.” (Emphases added.) 720
ILCS 5/11-9.3(a) (West 2014).
¶ 29 Defendant argues that the St. Louis Avenue parking lot does not constitute “real
property comprising any school” because it is separated from the school building
and connected gymnasium building by a public street and, thus, is not contiguous
with the school buildings. In support of his argument, defendant cites three cases
from other jurisdictions. Of course, while this court is open to consideration of such
1
We note that while this case was on appeal before this court the Appellate Court, Second
District, found that a high school field house parking lot was “real property comprising any school”
for purposes of section 11-9.3(a) of the Code (720 ILCS 5/11.9.3(a) (West 2018)). People v. Lowe,
2022 IL App (2d) 190981, ¶ 1.
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cases to benefit from any wisdom that may be contained therein, we are not bound
by those decisions insofar as their applicability is argued on issues relating solely
to state law. Sundance Homes, Inc. v. County of Du Page, 195 Ill. 2d. 257, 276
(2001). With these principles in mind, we turn to these three cases.
¶ 30 In two of the cases cited by defendant, courts in other states found that property
that was contiguous to the school did constitute “property comprising any school”
for the purposes of those states’ statutes, which prohibited certain activities within
1000 feet of such property. See Commonwealth v. Paige, 768 N.E.2d 572, 573-74
(Mass. App. Ct. 2002); State v. Peterson, 490 N.W.2d 53, 53 (Iowa 1992).
However, we note that a holding that contiguous property does qualify as “property
comprising any school” is not tantamount to a holding that property that is not
contiguous cannot qualify as “property comprising any school.” Accordingly, we
find these cases to be of little value in evaluating the case before us.
¶ 31 In the third case cited by defendant, a Florida appellate court found, with little
analysis, that “an overflow parking lot owned by a school” (but separated from it
by a soccer field) was not “property comprising any school” under Florida law
prohibiting the purchase of cocaine within 1000 feet of such property. Stamps v.
State, 620 So. 2d 1033, 1033 (Fla. Dist. Ct. App. 1993). In so holding, the court
reasoned that the terms “own” and “comprise” are not synonymous and that the rule
of lenity applied. For the following reasons, we find Stamps to be unpersuasive to
our analysis of section 11-9.3 of the Code.
¶ 32 While section 11-9.3(c)(4) of the Code (720 ILCS 5/11-9.3(d)(15) (West 2014))
defines the term “school” as “a public or private preschool or elementary or
secondary school,” the phrase “real property comprising any school” is undefined
in the statute. In this situation, we may look to the dictionary to discern an undefined
term’s plain and ordinary meaning. Cooke v. Illinois State Board of Elections, 2021
IL 125386, ¶ 78. In doing so, we note that the plain meaning of the word
“comprising” is not synonymous with “contiguous.” For property to be
“contiguous” with a school, it must be “touching along a boundary or at a point.”
Merriam Webster Online Dictionary, https://www.merriam-webster.com/
dictionary/contiguous (last visited Apr. 26, 2022) [https://perma.cc/UY3J-TQZS].
In contrast, property can be “comprising” a school in multiple situations, as
“comprising” has multiple meanings. See Merriam Webster Online Dictionary,
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https://www.merriam-webster.com/dictionary/comprise (last visited Apr. 26, 2022)
[https://perma.cc/DX7W-TWML]. Under these definitions, property can be
“comprising” a school if (1) it is “made up of” the school, (2) it constitutes the
school, or (3) it is “include[d] especially within a particular scope” of the school.
Id. Thus, there is nothing in the plain language of the statute that requires that
property be contiguous with the school for it to be within the scope of the statute’s
requirements.
¶ 33 In interpreting a statute, each word, clause, and sentence must be given a
reasonable construction, if possible. See Slepicka v. Illinois Department of Public
Health, 2014 IL 116927, ¶ 14. We agree with the State that, by providing that a sex
offender is prohibited from being present on “real property comprising any school”
when children are present “on the grounds,” the legislature intended that these terms
refer to the same area. Any other construction would defy logic. The applicable
definitions of the term “grounds” include (1) “an area used for a particular purpose”
and (2) an “area around and belonging to a house or other building.” Merriam
Webster Online Dictionary, https://www.merriam-webster.com/dictionary/grounds
(last visited Apr. 26, 2022) [https://perma.cc/EQ5P-E5HL].
¶ 34 Here, there is evidence that the St. Louis Avenue parking lot is used for school
purposes and is owned by the parish, which owned the church and school. In
addition, there is evidence that the church and school were connected to each other
and considered to be synonymous. Accordingly, we find that the St. Louis Avenue
parking lot is “real property comprising any school” for purposes of section 11-
9.3(a) of the Code. 720 ILCS 5/11-9.3(a) (West 2014). Having determined that the
St. Louis Avenue parking lot is a prohibited location for a sex offender pursuant to
section 11-9.3(a), we next consider whether the evidence was sufficient to support
defendant’s conviction.
¶ 35 Sufficiency of the Evidence
¶ 36 In reviewing the sufficiency of the evidence in a criminal case, our inquiry is
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. Brand, 2021 IL 125945, ¶ 58. It is the
responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the
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evidence, and to draw reasonable inferences from basic facts to ultimate facts.
People v. Siguenza-Brito, 235 Ill. 2d 213, 224 (2009). Regardless of whether
defendant received a bench or jury trial, a criminal conviction will not be set aside
unless the evidence is so improbable or unsatisfactory as to create a reasonable
doubt of defendant’s guilt. Id. at 225.
¶ 37 Here, defendant argues that the evidence was insufficient to convict him
because there was no evidence that, by attending the carnival on the St. Louis
Avenue parking lot, he was “knowingly” on “property comprising any school.”
Pursuant to section 4-5 of the Code (720 ILCS 5/4-5 (West 2014)) a person acts
knowingly when he is consciously aware that the circumstances described by the
statute defining the offense exist. Moreover, knowledge of a material fact includes
awareness of the substantial probability that the fact exists. Id. Thus, if there is
circumstantial evidence in the record from which a reasonable fact-finder could
find that defendant had an awareness of the substantial probability that the St. Louis
Avenue parking lot was part of the grounds of the Queen of Martyrs Parish school,
then we will not disturb the circuit court’s judgment. Knowledge is often proven by
circumstantial evidence rather than direct proof because it is the mental element of
an offense and, as such, is rarely proven by direct evidence. People v. Jasoni, 2012
IL App (2d) 110217, ¶ 20 (citing People v. Faginkrantz, 21 Ill. 2d 75, 80 (1960)).
An admission by a defendant is not required for the trier of fact to conclude that a
defendant had knowledge of something. Id.¶ 38 With these principles in mind, we review the evidence of record to determine
whether circumstantial evidence exists that supports a reasonable inference that
defendant had an awareness of the substantial probability that the St. Louis Avenue
parking lot is part of the grounds of the Queen of Martyrs Parish school. In so doing,
we find such evidence in the record. The Queen of Martyrs Parish has a large
campus consisting of a church, school, and gymnasium. Defendant’s brother had
been a parishioner there for seven years, and while he testified that he thought the
St. Louis Avenue parking lot is “church property” and not “school property,” it is
within the circuit court’s province to determine the credibility of that testimony.
The reverend testified that people considered the church and school to be
synonymous, and both Officer McGreal and Ms. Cassidy, who were not
parishioners, testified consistently with that notion, that they believed the festival
to be a school function. In addition, the St. Louis Avenue parking lot is located
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closer to the school and gymnasium than it is to the church, which is on the opposite
side.
¶ 39 The layout of the festival itself also lends support to the proposition that
defendant was aware of a substantial probability that the St. Louis Avenue parking
lot is located on school grounds. There were children’s rides in that parking lot, and
there is evidence that the children’s rides continued across the street, which had
been blocked off for the festival, to the alley behind the gymnasium and school and
that the school was open to where one could walk through to the back of the school,
where there was music and food vendors. In fact, there is testimony in the record
that all these areas of the festival were open and connected to each other. While the
evidence showed that defendant stayed in the St. Louis Avenue parking lot, by the
maps in evidence it can be inferred that he would have been able to see that the
rides continued across the street and behind the gymnasium and school.
¶ 40 Finally, there is evidence of defendant’s conduct that a reasonable fact-finder
could find to support the proposition that he was aware of the substantial probability
that he was present on school grounds. When Officer McGreal told defendant that
he should not be there, defendant agreed and left without protest. Also, when Ms.
Cassidy informed defendant the next morning that she had filed a police report, he
responded that he understood what her concerns were. While there is also evidence
in the record to suggest that at least some parishioners and members of the public
understood the St. Louis Avenue parking lot to be “church property,” we will not
substitute our judgment for that of the circuit court on issues involving the weight
of the evidence or the credibility of witnesses. See Siguenza-Brito, 235 Ill. 2d at
224-25. For these reasons, we find that the evidence presented in the bench trial is
not so improbable or unsatisfactory as to create a reasonable doubt of defendant’s
awareness of the substantial probability that he was on the grounds of the
St. Martyrs Parish school when he attended the festival on September 26, 2015.
¶ 41 CONCLUSION
¶ 42 For the foregoing reasons, we affirm the decision of the appellate court, which
affirmed defendant’s conviction for a violation of section 11-9.3(a) of the Code
(720 ILCS 5/11-9.3(a) (West 2014)).
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¶ 43 Judgments affirmed.
¶ 44 CHIEF JUSTICE ANNE M. BURKE, dissenting:
¶ 45 I agree with the majority that a rational trier of fact could have found, viewing
the evidence in the light most favorable to the State, that the parking lot where
defendant was present constituted “real property comprising any school” (720 ILCS
5/11-9.3(a) (West 2014)). I part ways with the majority on its second holding—that
the trial evidence was sufficient to prove beyond a reasonable doubt that defendant
was “knowingly” present on real property comprising a school when persons under
the age of 18 were present. Id. None of the evidence the majority cites is relevant
or probative of the knowledge element of the offense. The complete lack of
evidence at trial that defendant either knew or was aware of the substantial
probability that the St. Louis Avenue parking lot was school property is fatal to the
prosecution’s case. For this reason, I respectfully dissent.
¶ 46 ANALYSIS
¶ 47 Defendant was charged with, and convicted of, violating section 11-9.3(a) of
the Criminal Code of 2012, which provides: “It is unlawful for a child sex offender
to knowingly be present *** on real property comprising any school *** when
persons under the age of 18 are present *** on the grounds ***.” Id.¶ 48 At trial, defendant’s brother, Robert Leib, testified that he invited defendant to
attend the “Queen of Martyrs Fest” with Robert’s family on Saturday, September
26, 2015. On that date, at approximately 8 p.m., Robert; defendant; and Robert’s
son, daughter, and grandson parked one block away from the fest and walked to a
parking lot containing carnival rides and games. The parking lot was at the
northeast corner of 103rd Street and St. Louis Avenue in Evergreen Park, across
the street from the Queen of Martyrs Parish hall, church, and school. A sign posted
at the corner of the parking lot advertised bingo and raffles on Thursday evenings
for the Queen of Martyrs Parish. Witness testimony was uniform that the bingo sign
was the only sign in the parking lot and there were no other signs indicating what
the property was used for or who owned the property.
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¶ 49 Robert testified that he and defendant went to buy tickets at a ticket booth
because his grandson wanted to ride a roller coaster. They then met Robert’s
daughter and grandson in front of the roller coaster. Shortly afterward, a police
officer approached them and asked defendant whether he was a sex offender. The
officer then asked them to go with him to his police vehicle across the street. Robert
testified that he had been a parishioner at Queen of Martyrs Parish for seven years.
He stated he was aware of his brother’s sex offender restrictions and would not
have invited him if he did not believe the fest was a church function on church
property.
¶ 50 One of defendant’s neighbors, Jeanne Cassidy, was at the fest when she saw
defendant in the parking lot with his family in front of the roller coaster. She
testified that she knew defendant was a registered sex offender and believed he was
not allowed to be at the fest. She therefore notified a nearby police officer as to
defendant’s presence.
¶ 51 Chicago police officer Daniel McGreal testified that, after speaking with
Cassidy, he approached defendant and asked for his name and identification.
Defendant cooperated and showed his identification. Officer McGreal asked
defendant to walk with him to his police vehicle so that he could run his name.
Defendant did so. A search of defendant’s name did not reveal any warrants or
information about defendant’s background as a registered sex offender. Officer
McGreal then testified:
“So as I talked to him I told him I believe he shouldn’t be here, and he
agreed. And he agreed to leave.
Q. And he agreed to leave, and then he did leave that area from the carnival?
A. Yes, correct.”
¶ 52 Robert testified consistently with Officer McGreal’s testimony as to
defendant’s actions. He testified that, after Officer McGreal took defendant’s
information, he “told us to leave because people were uncomfortable we were
there.” They left immediately afterward.
¶ 53 The following day, Cassidy went to defendant’s house and knocked on his door.
She told defendant that she had made a formal complaint to the Evergreen Park
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Police Department stating that he was present at the fest. Cassidy testified that
defendant “said he understood what my concerns were.”
¶ 54 Following the presentation of evidence and closing arguments, the circuit court
found defendant guilty of the charged offense and sentenced him to one year in
prison. On appeal, defendant argued that the evidence was insufficient to convict
him beyond a reasonable doubt. A divided appellate court panel affirmed
defendant’s conviction. 2020 IL App (1st) 170837-U. This appeal followed.
¶ 55 In a case involving a challenge to the sufficiency of the evidence, such as this
one, “a reviewing court must determine whether, after viewing the evidence in the
light most favorable to the State, any rational trier of fact could have found the
required elements of the crime beyond a reasonable doubt.” People v. Gonzalez,
239 Ill. 2d 471, 478 (2011).
¶ 56 Section 11-9.3(a) provides, in relevant part, that “[i]t is unlawful for a child sex
offender to knowingly be present *** on real property comprising any school ***
when persons under the age of 18 are present *** on the grounds.” (Emphasis
added.) 720 ILCS 5/11-9.3(a) (West 2014). “The State must present sufficient
evidence from which an inference of knowledge can be made, and any inference
must be based on established facts and not pyramided on intervening inferences.”
People v. Weiss, 263 Ill. App. 3d 725, 731 (1994). Accordingly, if the State failed
to introduce established facts to prove that defendant knew he was on real property
comprising a school within the meaning of the statute, defendant’s conviction
should be overturned.
“A person knows, or acts knowingly or with knowledge of:
(a) The nature or attendant circumstances of his or her conduct,
described by the statute defining the offense, when he or she is consciously
aware that his or her conduct is of that nature or that those circumstances
exist. Knowledge of a material fact includes awareness of the substantial
probability that the fact exists.
(b) The result of his or her conduct, described by the statute defining the
offense, when he or she is consciously aware that that result is practically
certain to be caused by his conduct.” 720 ILCS 5/4-5 (West 2014).
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¶ 57 A defendant commits an offense “knowingly” when he “knows all of the facts
that make his conduct illegal.” McFadden v. United States, 576 U.S. 186, 194-95
(2015). Knowledge may be proven through direct evidence or circumstantial
evidence. People v. Ortiz, 196 Ill. 2d 236, 260 (2001). Importantly, “knowledge”
in a criminal prosecution involves conscious awareness; “ ‘knowledge’ is not the
same as ‘should have known.’ ” People v. Nash, 282 Ill. App. 3d 982, 986 (1996).
For this reason, at least one court has held that a registered sex offender who
unknowingly enters a restricted area is not in violation of a statute that prohibits
“knowingly” being present there, so long as he leaves the area immediately upon
learning that he is in fact in a restricted area. See Does 1-5 v. Cooper, 148 F. Supp.
3d 477, 487-88 (M.D.N.C. 2015) (interpreting a North Carolina state statute
providing that a sex offender cannot “knowingly be at” one of the restricted zones
specified in the statute (N.C. Gen. Stat. § 14-208.18(a) (2011))).
¶ 58 In this case, the evidence admitted at trial does not support the proposition that
defendant either knew or was aware of the substantial probability that the St. Louis
Avenue parking lot was school property. See 720 ILCS 5/11-9.3(a) (West 2014);
id. § 4-5(a). Indeed, the State introduced no affirmative evidence, either
circumstantial or direct, to establish defendant’s knowledge of the facts making his
conduct illegal. Rather, all the evidence introduced at trial refutes that defendant
was aware he was present on real property comprising a school.
¶ 59 No evidence was introduced at trial of any visible signifiers that would have put
defendant on notice that he was in a school parking lot. The witnesses uniformly
testified that there were no signs, banners, or markings of any kind in the vicinity
of the parking lot indicating that it was school property. The witnesses testified that
the only sign advertised a church function—bingo and raffles on Thursday
evenings. In addition, the flyer for the fest advertised the “Queen of Martyrs Fest”
and listed attractions including live music, food, beer, carnival rides, and games.
The flyer did not mention the school at all. Nor was there any evidence that
defendant was familiar with the property or had ever set foot on the property before
that night. Thus, there were no external, objective indicators that would have
notified defendant that he was present on property comprising a school.
¶ 60 Despite the total lack of evidence that defendant was aware he was on school
property, the majority nevertheless reaches the opposite conclusion. The majority
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cites the following evidence: (1) testimony that some witnesses considered the
parking lot to be school property, (2) the layout of the fest, and (3) the fact that
defendant left the fest without protest and told Cassidy the next day that he
understood her concerns. None of this evidence is probative of defendant’s
knowledge that he was present on school property, let alone sufficient to establish
the mens rea element of the offense beyond a reasonable doubt. In fact, the
evidence of defendant’s conduct supports his claim that he was unaware of the
nature of the parking lot.
¶ 61 The majority first cites the testimony of Reverend Mikolajczyk, who testified
that “people considered the church and school to be synonymous,” as well as that
of Officer McGreal and Cassidy, who testified “that they believed the festival to be
a school function.” Supra ¶ 38. This testimony is not relevant to the issue of
defendant’s knowledge. “Relevant evidence is evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the
action more probable than it would be without the evidence.” People v. Lewis, 165
Ill. 2d 305, 329 (1995). The fact that several witnesses testified to their personal
belief that they considered the parking lot to be school property is not relevant to
defendant’s knowledge. There was no evidence that defendant knew any of the
State’s witnesses or was privy to their personal beliefs or perceptions as to whether
the parking lot was school property or church property.
¶ 62 The only scenario in which this testimony might be slightly relevant would be
if there were evidence that everyone in the parish and neighborhood knew that the
parking lot was school property. This was clearly not the case. Irene Smith, the
parish business manager for the past 20 years, testified that the parking lot had been
considered church property for as long as she had worked there. Robert Pellegrini,
the chairperson for the fest, testified that the parking lot was a parish lot and the
fest was a church function. Defendant’s brother, Robert, a parishioner for seven
years, testified that he considered the parking lot to be the church parking lot. He
also testified that he would not have invited defendant to the fest had he known that
the property was school property. Finally, the police report referred to the place of
incident as a “church, synagogue, or temple.”
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¶ 63 Thus, the evidence shows there was considerable disagreement as to the nature
of the parking lot. On this point, I agree with the dissenting justice in the appellate
court that
“[t]he fact that there was a genuine disagreement by disinterested witnesses as
to whether or not this parking lot was part of a school or part of a church
undermines any suggestion that [defendant] knew that this was school
property.*** In short, there is simply no way that [defendant] can be charged
with knowledge of something which was not marked by any signage and on
which even the witnesses and the church employees could not agree.” 2020 IL
App (1st) 170837-U, ¶ 41 (Mikva, P.J., dissenting).
¶ 64 The majority also finds that the location of the parking lot and the layout of the
fest “lends support to the proposition that defendant was aware of a substantial
probability that the St. Louis Avenue parking lot is located on school grounds.”
Supra ¶ 39. The majority cites evidence that there were children’s rides in the
parking lot, that the rides continued across the street to the alley behind the school,
and that the school was open to where one could walk through to the back of the
school, where there were food vendors and music. Supra ¶ 39. The majority finds,
“[w]hile the evidence showed that defendant stayed in the St. Louis parking lot, by
the maps in evidence it can be inferred that he would have been able to see that the
rides continued across the street and behind the gymnasium and school.” Supra
¶ 39. This inference is wholly misinformed and unsupported by the evidence.
¶ 65 There was no witness testimony as to whether the school or the other rides were
visible from the St. Louis Avenue parking lot or whether they were obstructed by
the parish hall across the street. Nor was there evidence that defendant, specifically,
was aware of the other areas of the fest or could see the school from the parking
lot. The majority’s finding that “it can be inferred that [defendant] would have been
able to see that the rides continued across the street and behind the gymnasium and
school” (supra ¶ 39) is pure speculation and conjecture. Therefore, no inference
can be drawn from this evidence. See People v. Jones, 174 Ill. 2d 427, 429-30
(1996) (a sufficiency of evidence finding must be based on evidence of record and
not on guess, speculation, or conjecture).
¶ 66 The majority also seems to imply that the fact there were children’s rides in the
parking lot indicated that it was real property comprising a school. This implication
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is false. The fest was advertised as an event for adults as well as children. The flyer
listed food, beer, and live music, and the fest was scheduled to end at midnight. It
was not an event exclusively for children. Moreover, the statute does not bar a
registered sex offender from attending carnivals or festivals where children and
children’s rides are present. Accordingly, nothing about the mere fact that the lot
contained children’s rides would have put defendant on notice that he was on real
property comprising a school.
¶ 67 The remaining evidence cited by the majority in support of the knowledge
element is defendant’s actions in agreeing to leave the fest at the request of Officer
McGreal and telling his neighbor that he understood her concerns. Not only is this
evidence not probative of defendant’s knowledge, but it supports his defense that
he was not aware the parking lot was school property. There was no testimony that
Officer McGreal discussed with defendant the fact that he was on school property.
Rather, McGreal told defendant that people were “uncomfortable” that he was at
the fest and that he should not be there. The only reasonable inferences that can be
drawn from defendant’s conduct are that he agreed he should not be present at a
place where he was making people uncomfortable and that he complied with the
officer’s request to leave. Likewise, the only reasonable inference from his
statement to Cassidy when she knocked on his door and told him she had filed a
police report is that he understood she was concerned about his presence at the fest.
No consciousness of guilt can be inferred from these actions or statements.
¶ 68 Defendant simply accompanied his family to a parish fest at his brother’s
invitation. Defendant was standing out in the open with his family members, in
plain view of the public, people in the local community, and at least one police
officer. He displayed no evasiveness and did not attempt to hide or conceal his
identity. Upon being confronted by Officer McGreal, defendant gave his name and
showed his identification. He did not flee, nor did he object to the officer running
his name through the system. He then promptly left the fest as requested.
Furthermore, the parties stipulated at trial that defendant was compliant with all the
requirements of the sex offender registration laws for eight years prior to these
events. None of this evidence would reasonably justify the inference of knowledge
of the circumstances comprising the offense. On the contrary, defendant’s conduct
shows a lack of knowledge. See, e.g., Does 1-5, 148 F. Supp. 3d at 487-88 (holding,
under North Carolina state law, that a registered sex offender who unknowingly
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enters a restricted zone is not in violation of a statute that prohibits “knowingly”
being present in that zone, so long as he leaves the area immediately upon learning
that he is in fact in a restricted zone). Thus, this evidence completely contradicts
the majority’s conclusion that defendant “knowingly” violated the statute.
¶ 69 The majority’s reliance on defendant’s conduct as evidence of his knowledge
also places defendant in a no-win situation. Typically, where a defendant is
cooperative and compliant with police instructions, it suggests an absence of
consciousness of guilt. See, e.g., Ortiz, 196 Ill. 2d at 260 (evidence supporting
defendant’s lack of culpability included the fact that he allowed police to search his
vehicle after being told he was free to leave); People v. Chatha, 2015 IL App (4th)
130652, ¶ 55 (evidence of defendant’s demeanor and willingness to comply with
sheriff’s requests during investigation buttressed the conclusion that he did not
know the products he sold contained a controlled substance). By contrast, where a
defendant is evasive, visibly nervous, conceals his activities, or flees the scene, a
consciousness of guilt can be inferred by the trier of fact. See, e.g., McFadden, 576
U.S. at 192 n.1; Ortiz, 196 Ill. 2d at 266; Lewis, 165 Ill. 2d at 349-50; People v.
Monteleone, 2018 IL App (2d) 170150, ¶ 34; 29 Am. Jur. 2d Evidence § 527 (May
2022 Update); Hoerauf v. State, 941 A.2d 1162, 1180 (Md. Ct. Spec. App. 2008).
¶ 70 The majority’s holding traps a defendant into a Catch-22, whereby a defendant
can be charged with knowledge based on his cooperation with a law enforcement
officer but, presumably, can also be charged with knowledge based on his evasion
or flight from a law enforcement officer. Under the majority’s holding, a defendant
has a guilty mind if he complies with police and a guilty mind if he refuses to
comply. The majority does not support this proposition with caselaw, nor am I
aware of any caselaw that infers guilt from a defendant’s cooperation with police.
The implications of the majority’s holding are deeply troubling.
¶ 71 Where a conviction is based on evidence that is so improbable, unconvincing,
or contrary to human experience as to justify a reasonable doubt of defendant’s
guilt, it is this court’s duty to reverse the judgment of conviction. Ortiz, 196 Ill. 2d
at 259, 267. The State failed to meet its burden of proving that defendant either
knew or was aware of the substantial probability that he was present on property
comprising a school. Since the State failed to introduce any credible evidence that
defendant knowingly violated section 11-9.3(a) of the Criminal Code of 2012,
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defendant’s conviction should be reversed. For the foregoing reasons, I respectfully
dissent.
¶ 72 JUSTICE NEVILLE joins in this dissent.
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