People v. Robinson , 2013 IL App (2d) 120087 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Robinson, 2013 IL App (2d) 120087Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DEXTER G. ROBINSON, Defendant-Appellant.
District & No. Second District
Docket No. 2-12-0087
Filed August 5, 2013
Held Defendant’s conviction for knowingly failing to report a change of
(Note: This syllabus address to his local police department as required by section 6 of the Sex
constitutes no part of Offender Registration Act was reversed where the State failed to present
the opinion of the court evidence sufficient to establish a specific unregistered address where
but has been prepared defendant stayed for an aggregate period of five or more days in a
by the Reporter of calendar year.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Kane County, No. 09-CF-3318; the
Review Hon. Allen M. Anderson, Judge, presiding.
Judgment Reversed.
Counsel on Thomas A. Lilien and R. Christopher White, both of State Appellate
Appeal Defender’s Office, of Elgin, for appellant.
Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
Bauer and Kathryn E. Kohls, both of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justices McLaren and Zenoff concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, the circuit court of Kane County convicted defendant, Dexter G.
Robinson, of violating section 6 of the Sex Offender Registration Act (Act) (730 ILCS 150/6
(West 2008)), holding that defendant, a sex offender, had knowingly failed to report a change
in his address to the Aurora police department. Defendant appeals, contending that the
State’s proof was insufficient because it failed to present evidence of a specific unregistered
address where defendant stayed for an aggregate period of five or more days in a calendar
year. We agree and reverse.
¶2 I. BACKGROUND
¶3 On October 16, 2008, Richard Cornforth, who registers sex offenders for the Aurora
police department, met with defendant and completed a registration form with him.
Defendant gave an address on Crestwood Drive in Aurora. The reverse side of the form listed
the requirements of registration, including a requirement that defendant report a change of
address within three days. Defendant wrote his initials next to each of these requirements.
Subsequently, in 2009, defendant did not report a change of address or register a new
address.
¶4 On October 16, 2009, Aurora police officer Laura Kolanowski completed a sex offender
registration form with defendant, who again provided his address on Crestwood Drive,
Aurora. Defendant then read and initialed each line of the form that listed his rights and
responsibilities.
¶5 On November 22, 2009, Aurora police officer Maxwell Worchester went to the
Crestwood Drive address and attempted to verify the information defendant provided on the
October 16, 2009, form. Officer Worchester spoke with defendant’s grandfather, Tommy Lee
Rush, the owner of the house. Rush provided a written report stating that defendant had not
lived with him since August 2009 and was working near Davenport, Iowa, at a telemarketing
firm. Officer Worchester did not speak with anyone else at the house or call either contact
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number listed on the form.
¶6 At trial, Rush testified that police officers came to his house in 2009 looking for
defendant, but he could not remember the date. In November 2009, defendant lived at the
house “off and on” and his absences could be longer than a week but shorter than a month.
Rush did not know where defendant was during these absences, but he knew that defendant
stayed with Rush’s son sometimes and possibly had a job in the Davenport area. During this
time, defendant kept his belongings at Rush’s house, and Rush did not recall telling police
on November 22, 2009, that defendant did not have any belongings at his house. Rush
admitted that he gets “mixed up” and could not remember the November 22 meeting with
the police.
¶7 Aurora police officer Laurie Pekich testified that at approximately 11:25 a.m., on
November 22, 2009, she received a call while she was working at the front desk of the police
station. The caller identified himself as defendant, and he said that he had been advised that
police were looking for him at his home. He told her that he sometimes left the area for two
or three days and was on his way back to Illinois.
¶8 Brandi O’Banner, defendant’s sister, testified that she lived at the Crestwood Drive
address with her family, including defendant. They all lived there on November 22, 2009,
and defendant came home every night and kept his clothes and toiletries there. Her
grandfather slept in the back of the house and was often asleep before defendant came home.
Defendant would spend a day or two, once or twice a month, at his girlfriend’s house, but
was never gone as long as a week.
¶9 The trial court determined that Rush was credible and found defendant guilty. The trial
court stated that it had no reasonable doubt that defendant was away from his home for an
aggregate period of five or more days during a calendar year. Defendant timely appeals.
¶ 10 II. ANALYSIS
¶ 11 On appeal, defendant argues that the evidence was insufficient to sustain a conviction
under section 6 of the Act and, more specifically, that the State failed to prove the existence
of a specific address that defendant was required to register. When a defendant challenges
the sufficiency of the evidence in a criminal case, it is not the function of a reviewing court
to retry the defendant. People v. Collins, 106 Ill. 2d 237, 261 (1985). Rather, the proper
standard of review 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 crime
beyond a reasonable doubt.” (Emphasis in original.) Id. (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)). When reviewing the evidence, the reviewing court will not substitute
its judgment for that of the trier of fact on issues concerning the weight of the evidence or
the credibility of the witnesses. People v. Phelps, 211 Ill. 2d 1, 7 (2004). Where the evidence
is so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt (People v. Ehlert,
211 Ill. 2d 192, 203 (2004)), or where proof of an element is wholly lacking (e.g., People v.
Murdock, 321 Ill. App. 3d 175, 177 (2001)), the reviewing court may reverse a conviction
(id.).
¶ 12 Defendant first argues that there are five elements the State was required to prove under
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section 6 of the Act: (1) defendant had been adjudicated to be sexually dangerous or is a
sexually violent person; and (2) he failed to register; (3) in person; (4) within three days; (5)
of establishing a new “fixed residence” or “temporary domicile.” 730 ILCS 150/6 (West
2008).
¶ 13 We do not agree with defendant that a conviction of a violation of section 6 requires
proof that the defendant was previously adjudicated as sexually dangerous or is a sexually
violent person. Although the statute first addresses sexually dangerous and sexually violent
persons, it goes on to state:
“If any other person required to register under this Article changes his or her residence
address, *** he or she shall report in person, to the law enforcement agency with whom
he or she last registered *** his or her new address ***.” Id.As defendant conceded in oral argument, section 6 applies to anyone required to register
under the Act, not only to sexually dangerous or sexually violent persons. A person is
required to register under the Act if he is a sex offender, meaning that he has been convicted
of a sex offense as defined by section 2 of the Act (730 ILCS 150/2 (West 2008)), which lists
the various qualifying offenses. 730 ILCS 150/3 (West 2008).
¶ 14 Thus, to prove a violation of the duty to report a change of address, the State was
required to prove that defendant: (1) was previously convicted of an offense subjecting him
to the Act; and (2) established a new “fixed residence” or “temporary domicile”; (3) which
he knowingly failed to report in person to the law enforcement agency with whom he last
registered. 730 ILCS 150/6 (West 2008); see People v. Harris, 333 Ill. App. 3d 741, 745
(2002) (citing 730 ILCS 150/6 (West 2000)) (to sustain a conviction under section 6, the
State was required to prove: (1) defendant was previously convicted of aggravated criminal
sexual assault; (2) defendant changed his residence address; and (3) defendant failed to report
the change; (4) in writing to the Chicago police department; (5) within 10 days of the
change). Although both parties contend that reporting must be done within three days, the
statute does not establish a time period. However, we need not address this issue, as we
dispose of this case on other grounds.
¶ 15 With respect to the established elements, defendant argues that evidence is lacking to
sustain his conviction beyond a reasonable doubt on elements (1) (eligibility) and (2)
(residence). Regarding the first element, defendant argues that the State failed to present any
evidence that he was convicted of an offense requiring compliance with the Act. However,
defendant makes only a conclusory assertion with respect to the first element and fails to
develop any supporting argument until his reply brief. In other words, defendant does not
develop this argument until the reply brief, where he argues that People’s Exhibit No. 1, by
which the State purported to show his qualifying conviction, was insufficient because it was
not a certified copy of the conviction. No authority is cited for this proposition. Illinois
Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013) requires that the appellant’s brief include
“[a]rgument, which shall contain the contentions of the appellant and the reasons therefor,
with citation of the authorities and the pages of the record relied on.” Further, arguments
raised for the first time in a reply brief are deemed forfeited. People ex rel. Village of Vernon
Hills v. Village of Lincolnshire, 283 Ill. App. 3d 266, 271 (1996). Although defendant’s
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argument might have merit, an appellant must present clearly defined issues to the court,
supported by relevant authority: this court is “not simply a repository in which appellants
may dump the burden of argument and research.” People v. Chatman, 357 Ill. App. 3d 695,
703 (2005). Because defendant fails to make any argument to support his contention in the
original brief, and fails to cite any authority to support his new argument in the reply brief,
defendant has forfeited his contention.
¶ 16 Even if defendant had not forfeited this argument, there would be no way for us to review
whether People’s Exhibit No. 1 was sufficient to prove defendant’s prior conviction, because
the exhibit included in the record is not what the parties represent it to be, and, apparently,
neither party has reviewed the record in its entirety. As a result, defendant has failed to
provide a record from which we could decide this issue, as we explain. In their briefs, both
the State and defendant reference People’s Exhibit No. 1 from the trial, yet neither party has
ensured that People’s Exhibit No. 1 from the trial is part of the record. Instead, the exhibit
provided appears to be from the sentencing hearing, rather than the trial, and there is nothing
in the record to demonstrate that the two exhibits were the same. An appellant is responsible
for providing a record that shows the errors claimed. People v. Hamilton, 64 Ill. App. 3d 276,
278 (1978). Where the record is incomplete, a reviewing court will presume that the trial
court ruled or acted correctly. Id. As the appellant, defendant had the burden of providing a
complete record. As the record is incomplete, we presume that the trial court acted correctly
in accepting the exhibit offered at trial as adequate proof of defendant’s prior conviction. Id.Furthermore, we note that there was no objection to the exhibit at trial, and, in fact,
defendant’s motion in limine requested that the State’s Attorney be precluded from
presenting evidence of his prior conviction of “Criminal Sexual Assault,” a conviction that
apparently subjected defendant to the registration requirements of the Act. See 730 ILCS
150/2 (West 2008) (listing qualifying offenses).
¶ 17 With respect to element (2), defendant makes two arguments. Defendant first argues that
the State offered no evidence establishing that his “fixed residence” did not remain the
Crestwood Drive address. Second, defendant argues that the State failed to prove that any
other location he visited constituted a “fixed residence.”
¶ 18 In response to defendant’s first argument, the State asserts that a person can be required
to register multiple addresses under the Act, and directs us to the Act’s language defining a
“fixed residence” as “any and 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 2008); see People v.
Peterson, 404 Ill. App. 3d 145, 154 (2010). The State is correct, and defendant concedes, that
the clear language of section 2(I) allows for registration of multiple addresses. Thus, the fact
that the Crestwood Drive address may have been defendant’s “fixed residence” does not
preclude that defendant had another “fixed residence,” at a different address, that would
trigger registration requirements. We reject defendant’s first argument with respect to
element (2).
¶ 19 In response to defendant’s second argument, the State avers that from the evidence of
defendant’s absences, including the testimony of Rush and O’Banner, it can be reasonably
inferred that he had established another “fixed residence.” The State further argues that it was
not required to prove the specific amount of time that defendant resided at the new address.
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¶ 20 A defendant’s change of address and the amount of time he resided at the new address
are elements of the offense of failing to register pursuant to section 6 of the Act. Harris, 333
Ill. App. 3d at 752. In People v. Evans, 365 Ill. App. 3d 374 (2006), we upheld a conviction
of failing to register within 10 days of establishing a residence (730 ILCS 150/6 (West
2002)). There, the State presented evidence that on October 26, 2003, the defendant was
released from jail and moved in with his girlfriend at 805½ W. Third Street in Dixon, but did
not register that address until December 8, 2003. Evans, 365 Ill. App. 3d at 376. The
apartment manager, who lived next door to the defendant’s girlfriend, testified that, during
this period, defendant was at the address “ ‘all of the time’ ” and “every evening.” Id. The
State further presented testimony from police officers who were informed by the defendant
himself that he was living in Dixon at 805½ W. Third Street and needed to register.
Defendant was also stopped on multiple occasions by police and, on each occasion, his
address was listed as 805½ W. Third Street on citations he was issued. Id.
¶ 21 Here, the only satisfactory evidence presented was regarding defendant’s absence from
his registered Crestwood Drive address, whereas in Evans the State presented competent
evidence regarding the defendant’s presence at an unregistered address. Evans supports
defendant’s position that a conviction under section 6 required the State to prove a specific
location that defendant was required to register. Id. at 376-77. Although in Evans we did not
require the State to prove the exact number of days at which the defendant stayed at an
unregistered address, there was sufficient evidence of his presence at a specific location.
Here, the State appears to have simply assumed that defendant violated section 6, rather than
meeting its affirmative obligation to investigate the charge. The record lacks evidence of any
specific address at which defendant stayed for an aggregate period of five days or more, let
alone any specific amount of time he stayed at various locations.
¶ 22 The evidence, viewed in the light most favorable to the prosecution, shows that (1)
defendant was away from the Crestwood Drive address for more than five days, and (2)
defendant was at “his girlfriend’s house” two nights a month. The State offered no evidence
of a lease with defendant’s name, the city or street where defendant stayed, his phone
records, his girlfriend’s name, or even that “his girlfriend” referred to only one person and
was the same person he stayed with each time. Lacking, other than the vague reference to
“his girlfriend’s house,” is evidence of defendant’s specific location when he was away from
the Crestwood Drive address. While we allow reasonable inferences from the record in favor
of the judgment, the quantum of proof here is insufficient to support an inference that
defendant was at one specific address, for the requisite period of time. As the Act allows for
the possibility that a registered offender will “game” the system by residing at multiple
addresses while away from his registered address, the State had the burden to prove that he
was at one location for the requisite period. Here, the lack of any solid evidence of
defendant’s whereabouts when he was away from his Crestwood Drive address is so
unsatisfactory that it gives rise to a reasonable doubt of defendant’s guilt. While we can
envision a scenario where the proof of a defendant’s stay at a girlfriend’s house would be
sufficient, it is not so here.
¶ 23 Under the Act, a “fixed residence” is defined as “any and 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
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(West 2008)), while a “temporary domicile” is “any and all places where the sex offender
resides for an aggregate period of time of 3 or more days during any calendar year”1 (730
ILCS 150/3 (West 2008)). Inherent in each definition is the idea of a specific location. See
Peterson, 404 Ill. App. 3d at 152 (defining “fixed residence,” “place of residence,” and
“temporary domicile” all as “places an offender stays [for a certain amount of time] in a
calendar year” (emphasis added)). The State did not prove that defendant had a “fixed
residence” or a “temporary domicile” other than his Aurora address. Instead, the State
concentrated on proof that defendant was away from his Aurora address and present at some
other place, requiring multiple inferences to fit this other place into the definition of a “fixed
residence” or a “temporary domicile.” The State would have us begin with evidence that
defendant was away from his Aurora address and the vague statement that he was at his
girlfriend’s house, and then infer the rest of the elements: both “girlfriend” and “girlfriend’s
house” are singular; his stay was at least five aggregate days in one year; O’Banner’s basis
of knowledge was sufficient to testify as to defendant’s whereabouts; and so on until we
would affirm defendant’s conviction, not because the State proved him guilty beyond a
reasonable doubt, but because the State proved that he was absent from his registered address
beyond a reasonable doubt. This is indeed what the State proved at trial, evidenced by the
trial court’s statement that it was convinced beyond a reasonable doubt that defendant was
away from his home for the requisite period. However, this did not violate section 6 of the
Act. The State failed to prove that defendant established another “fixed residence” or
“temporary domicile” that he was obligated to register under section 6, because it offered
unsatisfactory evidence that defendant was at a specific place for the requisite period.
Accordingly, because proof of an essential element of the offense was wanting, no reasonable
fact finder could have found this element of the offense beyond a reasonable doubt, and
defendant’s conviction must be reversed.
¶ 24 III. CONCLUSION
¶ 25 Accordingly, for the foregoing reasons, we reverse defendant’s conviction.
¶ 26 Reversed.
1
While we note the discrepancy in the amount of time triggering a registration requirement
depending on whether an address is defined as a “fixed residence” or a “temporary domicile,” both
parties have used “fixed residence” throughout their briefs, and for the purposes of this argument
we assume that the State intended to show that defendant had established a “fixed residence.”
Nevertheless, because the State did not present evidence showing a specific location, it also failed
to prove that defendant was at any “temporary domicile” for the requisite three days.
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