People v. Joyce ( 1992 )

JUSTICE BOWMAN,

dissenting:

I respectfully dissent from that portion of the majority opinion which concludes that there exists sufficient corroborating evidence of defendant’s “unlawful purpose” to sustain the trial court’s guilty verdict.

The majority states that “[t]he totality of the circumstances here provides corroborating evidence that defendant acted for ‘other than a lawful purpose.’ ” (234 Ill. App. 3d at 413.) In support thereof, the majority notes (1) that B.N. was the only child that exited the school bus on the day in question; (2) that defendant, a stranger, asked B.N. if she wanted a ride; (3) that defendant repeated his request with the “enticing” phrase, “I don’t bite”; and (4) that defendant then drove away quickly and squealed his tires. The majority also focuses much of its attention on a subsequent incident, occurring approximately one month after the December 1987 incident for which defendant was indicted, wherein defendant again allegedly followed B.N. on her way home from school.

As to the first circumstance relied upon by the majority, that B.N. was the only child that exited the school bus, I fail to see the connection between that fact and the unlawful intent allegedly harbored by defendant. The second and third circumstances, that defendant, a stranger, asked B.N. if she wanted a ride and then repeated the request by stating, “I don’t bite,” relate directly to the first and third elements of the child abduction statute, i.e., attempt to lure without parental consent. Thus, rather than identifying any independent, corroborative evidence of unlawful purpose, the majority simply relies on the above facts, which actually constitute separate elements of the offense that the State is required to prove, and states that such facts constitute corroborating evidence of the final element of the offense. Moreover, I do not believe the phrase, “[c]ome on, I don’t bite,” to be any more “enticing,” as the majority puts it, or any more indicative of an unlawful purpose than the phrase “[c]ome on, I won’t hurt you” or simply “[c]ome on.”

The fourth circumstance noted by the majority is that, after being rejected, defendant drove away from the area quickly, squealing his tires. Although this is not entirely clear, I must assume the majority mentions this fact as evidence of flight from the alleged crime scene, from which a guilty conscience, and therefore an unlawful purpose, might be inferred. However, evidence of flight is usually related in some way to police confrontation. In fact, this court long ago stated that the word “flight” was “commonly understood as connoting evasive action rather than a mere leaving of the scene.” (People v. Hurley (1968), 100 Ill. App. 2d 167, 170.) The accused must be attempting to avoid arrest or detection, actions which imply a consciousness of guilt. People v. Henderson (1976), 39 Ill. App. 3d 502, 507.

Here, I find the defendant’s actions in leaving the scene to be somewhat ambivalent, and not necessarily indicative of a guilty conscience. Instead, defendant’s actions might actually be viewed as inconsistent with a guilty conscience when one considers the fact that, when B.N. again saw defendant in January 1988, he was, as the majority points out, “almost standing up in the driver’s seat and his upper body was hanging out of the window.” (234 Ill. App. 3d at 400.) These do not appear to be the actions of a person “attempting to avoid arrest or detection.” Henderson, 39 Ill. App. 3d at 507.

However, it is the trial court’s, and the majority of this court’s, treatment of the fifth factor, the January 1988 incident, that to me is most troublesome. Prior to trial, the trial court had granted a defense motion in limine to bar the introduction of other crimes evidence. At trial, the court allowed B.N. to testify, over defendant’s objection, about the January 1988 incident. The trial court explicitly stated, though, that it was allowing the evidence for identification purposes only. In fact, the trial judge made it quite clear that he would not consider the later incident as evidence of defendant’s intent.

In finding defendant guilty of child abduction, however, the trial judge then did exactly that which he had expressly stated he would not do. The court stated, in part:

“The [n]ext issue, therefore, is whether the Defendant acted for or with an unlawful purpose. *** The Defendant was identified approximately a month later very near the same location in a vehicle matching that same description. The testimony was he was identified as he was leaning out of the vehicle. I find that this evidence does meet the standard for proof of an unlawful intent, that would be my finding in the absence of the Statute.”

From these remarks, I think it is obvious that the trial court did in fact consider the evidence of the second incident, not only for identification purposes, but also as evidence of defendant’s intent, contrary to the court’s earlier ruling. The majority only compounds the trial court’s error when it too relies on the second incident as corroborating evidence of an unlawful purpose.

In People v. Thingvold (1989), 191 Ill. App. 3d 144, the defendant, who was charged with solicitation in connection with the murder of his wife, successfully moved in limine to exclude evidence of the murder from the trial. As the defense neared the end of its case in chief, however, the trial court, pursuant to a State motion to reconsider its prior ruling, held that evidence of the murder could be admitted for the limited purpose of judging witness credibility. As a basis for reversing the defendant’s conviction, this court found, in part, that the defendant had been prejudiced by the manner in which the evidence of the murder was admitted. (Thingvold, 191 Ill. App. 3d at 152.) Noting that prejudice may result when a decision at trial is made in reliance on an evidentiary ruling that is later reversed, we held that the defendant was in fact prejudiced where the trial court reversed its previous ruling at the end of defendant’s case and where defendant’s trial strategy relied on the court’s order excluding evidence of the murder. 191 Ill. App. 3d at 152; see also People v. King (1986), 109 Ill. 2d 514, 534.

I believe the prejudice to defendant in this case to be even more apparent than it was to the defendant in Thingvold. Here, not only is it altogether likely that decisions were made at trial in reliance on the court’s in limine ruling, the basis for that reliance was reinforced during trial, when the court assured defendant that evidence of the second incident would not be considered as evidence of his intent. Moreover, while the court in Thingvold changed its ruling toward the end of the defendant’s case in chief, here it was not until the court had heard all the evidence and was rendering its verdict that the court apparently changed its ruling to allow and consider evidence of the January incident on the question of defendant’s intent. Under these circumstances alone, I believe a new trial would be warranted. Thingvold, 191 Ill. App. 3d at 152.

In its brief, the State relies on the same evidence as did the trial court in support of its argument that defendant was proved guilty beyond a reasonable doubt. However, neither the State nor the trial court identified any specific, corroborative evidence of defendant’s unlawful intent. Rather, the trial court simply concluded, based on the evidence supporting the other elements, that such intent existed. The State argues that defendant’s actions “certainly smack of insidious design” and that defendant himself offered no evidence that his purpose was lawful. In addition, the State argues that there is a “rational connection” between defendant’s conduct, attempted luring without parental consent, and the inference of unlawful intent. The State also contends it is “more likely than not” that defendant harbored an unlawful intent. I believe it is clear from these statements that the State simply ignores the standard of proof necessary, even with permissive inferences, where no corroborating evidence is presented. People v. Hester (1989), 131 Ill. 2d 91, 100.

Based on the record before this court, I would conclude that there was insufficient evidence to support the trial court’s guilty verdict. There is simply no independent, corroborating evidence that defendant acted for “other than a lawful purpose,” and I fail to see how the trial court could have reached such a conclusion without reliance on the statutory presumption, the trial judge’s statement that he did not so rely notwithstanding. As such, the statutory inference, though constitutionally sound on its face, was impermissibly applied to defendant under the circumstances of this case. Absent corroborating evidence, the “leap from the proved fact to the presumed element” must still be proved beyond a reasonable doubt. (Hester, 131 Ill. 2d at 100.) The State has failed in this regard, as evidenced by its continued reliance on the “rational connection/more likely than not” standard of proof.

As a final observance, I would note that in Joyce I this court held, “without unnecessarily protracted comment,” that defendant was proved guilty beyond a reasonable doubt. (People v. Joyce (1991), 210 Ill. App. 3d 1059, 1069.) In that case, however, the State introduced evidence of three statements made by defendant, before and after his arrest, which suggested a sexual purpose for defendant’s conduct. (Joyce, 210 Ill. App. 3d at 1063-64.) As indicated, no such corroborative evidence was presented in the instant case.