
January 28, 1999





NO. 4-97-0757

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,    )   Appeal from

Plaintiff-Appellee,           )   Circuit Court of

v.                            )   Douglas County

BARRY REYNOLDS,                         )   No. 97CF28

Defendant-Appellant.          )

                                        )   Honorable 

                                        )   Frank W. Lincoln,

                                        )   Judge Presiding.

_________________________________________________________________





JUSTICE KNECHT delivered the opinion of the court:

Defendant, Barry Reynolds, was convic­ted after a jury trial of vio­lat­ing an order of protection under sec­tion 12-30 of the Crim­inal Code of 1961 (720 ILCS 5/12-30 (West 1996)).  He ap­

peals, con­tend­ing (1) the statute is vague and overbroad and, there­fore, vio­lative of the first and fourteenth amendments to the United States Con­stitution (U.S. Const., amends. I, XIV) and arti­cle I, sec­tions 2 and 4, of the Illi­nois Consti­tution (Ill. Const. 1970, art. I, §§2, 4); (2) the State failed to prove him guilty be­yond a rea­son­able doubt; (3) the trial court erred in excluding cer­tain evi­dence; and (4) the prosecutor's closing argument vio­lated due process.  We af­firm.

Defendant and JoEllen Thomas were married on February 14, 1982, and separated May 24, 1995.  Their marriage was dis­

solved on May 28, 1996.  JoEllen sought the dissolution and has cus­to­dy of their four chil­dren.  On October 29, 1995, she ob­­tained an order of protec­tion (order) against defendant pur­suant to the Illi­nois Do­mestic Violence Act of 1986 (Act) (750 ILCS 

60/101 
et
 
seq
. (West 1994)).  De­fendant was charged with a viola­

tion of the order of protection because, having notice of the order, he intentionally committed an act prohibited by the order:  send­ing a writ­ten note to the home of JoEllen Reynolds with the in­tent to harass her.   

JoEllen testified at trial an envelope in defendant's handwriting addressed to defendant's and JoEllen's daughter, JoAnna, was re­ceived in the mail.  The post­mark on the enve­lope was April 22, 1997.  JoAnna had her sev­enth birthday on April 13.  JoEllen gave the enve­lope to JoAnna, who opened it and gave the card in­side to her mother be­cause a post-it note was attached with writ­ing in defendant's handwriting.  The note said "Bye the bye, the State dropped all charges	on you and Jerry's bull you tried to pull. Barry."

JoEllen identified Jerry as her fiancé.  He was a wit­

ness to a June 1996 incident about which JoEllen had made a for­

mal complaint to authorities charging defendant with a previous violation of the same order of protection.  JoEllen testified de­

fen­dant did not send any of the children birthday cards in 1996, or to the three other children in 1997, nor did he send them Christ­mas cards.  When JoEllen first saw the post-it note she said, "It made me sick to my stom­ach to see that he had to use that, that he had to do that."  She stated the distress last­ed for a period of time and she started to cry on the witness stand.

JoEllen said in her statement to police she knew the note referred to the June 1996 violation of the order and knew it was "harassment intimidation."  She knew defen­dant had violat­ed the order.  JoEllen stated when she received the note she did not believe what it said.  She knew the charges had not been dropped; defendant spent a weekend in jail and had been fined after plead­

ing guilty.  Therefore, when she got defendant's note she be­

lieved he was harassing and "persecuting" her again.

It was JoEllen's understanding she and defendant could communicate about their children under the order, but she had not communicated with him for any purpose other than visitation and child support.  JoEllen also denied the note was stuck to a let­

ter defendant sent to her that was included in the same enve­lope with the card to JoAnna.

Defendant testified he had agreed to the order.  He admitted writing the note and sending it to JoEllen's address but stated he did not nor would he have put it on JoAnna's birthday card.  Defendant stated he stuck the note on a separate letter to JoEllen that he thought was in the same envelope with the card.  The letter he attached the card to was undated, and defendant could not recall the date he mailed it but stated it was soon after he had received the children's midterm grades and the let­

ter related to their poor grades.  He stated he did not put the note's con­tents on the back of the full-page letter because "I was at the bottom of the page and I wasn't going to flip it over and start messing with it."  

Defendant testified the circuit clerk's office in­formed him the prior charge was dismissed.  After he sent the note he spent two days in jail as a result of a plea agreement in which he plead­ed guilty to contempt of court based on the same prior inci­dent.  Defendant testified he wrote the note "[t]o let [JoEllen] know that she can't cry wolf all the time, and that the charges were dismissed. *** I wanted my [ex-]wife to know that she cannot keep harassing me."  He wanted "[t]o show her that she can't come in here and cry wolf every time I look at her wrong, and she's going to have me arrested."  Defendant was angry and upset with JoEllen both at the time he wrote the note and on the day of his testimony.  He stated he did not intend to harass JoEllen.

The jury returned a verdict of guilty.  Defendant was sentenced to 24 months' probation with a 30-day jail sentence subject to work release and an additional 120 days in jail sub­

ject to remission in the event he fully complied with the order of probation.  This appeal followed.

Defendant asserts first the term "harassment" in the Act is vague and overbroad.  To prevail on a vagueness challenge to a statute, a party must demonstrate the statute was vague as applied to the conduct for which the party is being prosecuted.  
People v. Bailey
, 167 Ill. 2d 210, 228, 657 N.E.2d 953, 962 (1995).  To withstand a challenge for vagueness, a stat­ute must give a person of ordinary intelligence a reasonable opportu­nity to know what conduct is lawful and what conduct is unlawful.  
People v. Anderson
, 148 Ill. 2d 15, 27-28, 591 N.E.2d 461, 467 (1992); 
People v. Bales
, 108 Ill. 2d 182, 188, 483 N.E.2d 517, 520 (1985).  

Although the term "harassment" in the Act has already been upheld as not unconstitutionally vague (see 
People v. Whit­

field
, 147 Ill. App. 3d 675, 682, 498 N.E.2d 262, 267 (1986)), defendant con­tends the term "harassment" as used in sec­tion 103(7) of the Act is vague because his con­duct does not fit into any of the six types of conduct the Act states are 
pre­sumed
 to cause emo­tional dis­tress, an element of harass­ment.  The Act states in pertinent part:

"(7) 'Harassment' means knowing conduct which

is not necessary to accomplish a purpose that

is reasonable under the circumstances; would 

cause a reasonable person emotional distress;

and does cause emotional distress to the pe-

titioner.  Unless the presumption is rebutted

by a preponderance of the evidence, the fol-

lowing types of conduct shall be presumed to

cause emotional distress:

(i) creating a disturbance at petitioner's place of employment or school;

(ii) repeatedly telephoning peti-

tioner's place of employment, home 

or resi­dence;

(iii) repeatedly following peti-

tioner about in a public place or 

places;

(iv) repeatedly keeping petitioner 

under surveillance by remaining pre-

sent out­side his or her home, school, 

place of employment, vehicle or other 

place occu­pied by petitioner or by 

peering in petitioner's windows;

(v) improperly concealing a minor 

child from petitioner, repeatedly 

threat­ening to	improperly remove a 

minor child of petitioner's from the 

juris­dic­tion or from the physical care

of petitioner, repeatedly threatening

to conceal a minor child from petitioner, 

or making a single such threat following 

an actual	or attempted improper removal 

or con­cealment, unless respondent was 

fleeing an incident or pattern of 

domestic vio­lence; or

(vi) threaten­ing physical force, 

confinement or restraint on one or more 

occasions."  750 ILCS 60/103(7) (West 1996).

Defendant argues he could not have known his conduct fell within the definition of harassment because it is so differ­

ent in type and quality from the acts enumerated in the statute as to be unclassifiable under the statute.  He contends the types of conduct set forth in section 103(7) of the Act are inca­pable of informing him or anyone else the writing of a note with the words he used would constitute harassment.  

The types of conduct set forth in section 103(7) of the Act are not exhaustive.  The list describes only conduct which, absent rebutting evidence, establishes emotional distress.  While defendant's specific conduct is not described by the subsec­tions of section 103(7), this is not indicative of whether it consti­

tutes ha­rass­ment.  The Act also defines "harassment" as knowing conduct that is not necessary to accomplish a reasonable pur­pose, would cause a reasonable person emotional distress, and does cause the petitioner emotional distress.  750 ILCS 60/103(7) (West 1996).  It results from intentional acts that cause some­one to be worried, anxious, or uncomfortable.  
People v. Zarebski
, 186 Ill. App. 3d 285, 294, 542 N.E.2d 445, 452 (1989). 

At defendant's trial, the court took judicial notice of the case file in regard to the previous charge of violating the order filed against defendant.  While that specific charge was dismissed as part of a plea agreement, defendant pleaded guilty to con­tempt of court for the same behavior and served two days in jail.  De­fen­dant stated his purpose in writing the note was to show JoEllen she could not charge him with violating the order every time she wanted to.  The note was not factually cor­rect be­

cause the State did not drop "all charges."  Defendant's conduct in stat­ing oth­er­wise in his note coupled with his stated purpose to deter JoEllen from filing more charges results in the infer­

ence defendant's conduct was an at­tempt­ to intim­i­date JoEllen into not enforcing the order against him.  The order it­self pro­

hibited defendant from intimidating JoEllen, defendant should have known his objective was not a rea­son­able pur­pose and, hence, the con­duct fell under the defi­ni­tion of ha­rass­ment at the begin­

ning of sec­tion 103(7).  Section 103(7) and its defi­nition of harassment are not vague.    

As for being overbroad, the Act has already been held not to be overbroad.  See 
People v. Blackwood
, 131 Ill. App. 3d 1018, 1023-24, 476 N.E.2d 742, 745-46 (1985).  Further, the doc­

trine of over­breadth is designed to pro­tect first amend­ment free­

dom of expres­sion from laws writ­ten so broad­ly the fear of pun­

ishment might discourage taking advan­tage of that freedom.  
Bailey
, 167 Ill. 2d at 226, 657 N.E.2d at 961.  Here, the element of ex­pres­sion that may come under the defini­tion of harassment is not constitution­ally pro­tected.  As the Act pro­vides, the speech that section 103(7) would inhibit must be unnecessary to accom­

plish a reason­able purpose, would cause an­other reasonable per­son emo­tional dis­tress, and actually does cause the petitioner emo­

tional dis­tress.  Such speech, pun­ishable under the Act, would not be con­stitution­ally protected and, there­fore, the statute would not be overbroad.  See 
Blackwood
, 131 Ill. App. 3d at 1024, 476 N.E.2d at 746.  

Defendant next contends the State failed to prove him guilty beyond a reasonable doubt of harassing JoEllen.  When reviewing a challenge to the sufficiency of the evidence, it must be viewed in the light most fa­vorable to the State and, if it is sufficient to allow a rational trier of fact to find all the elements of the of­fense of a violation of an order of protection by harassment beyond a rea­sonable doubt, it must be affirmed.  See 
People v. Gee
, 276 Ill. App. 3d 198, 200, 658 N.E.2d 508, 509-10 (1995).

To prove harassment, the State must prove con­duct on the part of defendant that is not neces­sary to accom­plish a pur­

pose that is reasonable under the circum­stances; caus­es a reason­

able person emotional distress; and does cause emo­tional distress to the petitioner.  750 ILCS 60/103(7)(West 1996).  These must be intentional acts that cause someone to be worried, anxious, or un­com­fortable and need not involve any overt act of violence.  
Zarebski
, 186 Ill. App. 3d at 294, 542 N.E.2d at 452.  

In this case, defendant testified he agreed to the order initially.  He was fully aware of the existence of the order and its constraints on his conduct.  He admitted writ­ing the note in question to JoEllen in which he stated all charg­es against him were dropped.  While he knew the initial charge to which he re­ferred, a violation of the order, had been dropped in a plea agreement, he also knew he was to serve two days in jail on the con­tempt of court charge to which he had pleaded guilty in the agreement.  Defendant also admitted he was very angry with JoEllen when he wrote the note and his purpose in doing so essen­

tially was to let her know she could not keep "ha­rass­ing" him by tak­ing action to enforce the order when he vio­lated it.

Defendant's purpose in writing the note was not to in­

form her charges had been dropped because that would not have been necessary as she already knew the outcome of that case.  Further, his characterization of the outcome was inaccurate.  The jury could have legitimately concluded the note was an at­tempt to re­tal­i­ate against her for filing the former charge and to intimi­date her into not fil­ing any charges in the future.  The note, as an act of retali­a­tion and an intimidation tactic, might cause a rea­sonable per­son emo­tional distress and did cause such dis­tress to JoEllen, who became upset anew while testifying.  The parties had very limited contact.  They apparently agreed to communicate only about the children and visitation.  The defendant chose to write a note about his criminal prosecution to the victim of his earlier behavior.  The jury could have reasonably concluded the note was meant to be both sarcastic and distressing to JoEllen.  Evi­dence was sufficient for the jury to find de­fen­dant guilty be­

yond a rea­son­able doubt.  

Next defendant argues the trial court erred in exclud­

ing evidence.  The birthday card defendant sent his daughter to which JoEllen testified the offensive note was attached was ad­

mit­ted into evi­dence with­out ob­jec­tion on the first day of trial.  Defense counsel attempted to ask defendant what he had writ­ten on the inside of the card to his daughter.  The prosecutor object­ed, stating it was irrelevant to the issue at trial, the sending of the post-it note to JoEllen.   Defense counsel, in attempting to ex­plain the relevance of the message, stated "the card is a 
non
 
sequitur
 to anything that would have to do with a note of this kind" and "I think the jury is entitled to know what the card said that had the note that [the prosecutor] says is the viola­

tion of the [o]rder of [p]rotection."  The trial court sus­tained the objection.  

The next day when the ex­hib­its to be sent to the jury were gath­ered, de­fense coun­sel discov­ered the card was sealed in a plastic enve­lope and the jury would not be able to read the hand­written mes­sage to his daughter de­fendant had added to the inside of the card.  He ob­jected and asked the court to allow the jury to read the inside message because it was important to de­

fendant's case the jury see the type of card to which the State claimed he had attached his post-it note as opposed to defendant's testi­mony he had attached the note to a separate letter to JoEllen.  The trial court denied defendant's motion.  

Evidence is relevant only if it tends to prove any material fact in issue.  
In re A.T.
, 197 Ill. App. 3d 821, 833, 555 N.E.2d 402, 410 (1990).  Defendant admitted sending the post-

it note to JoEllen.  It is irrelevant to what other writ­ten com­

muni­cation he at­tached the note.  The send­ing of the note itself constituted ha­rassment, not the nature of the other commu­nication to which it was attached.  The inside message of the card did not tend to prove any fact in controversy or render any issue more or less probable.  Thus, the trial court did not err in fail­ing to admit the inside con­tents of the birth­day card into evi­dence.      		Finally, defen­dant argues the prosecutor's comments in clos­ing argument were violative of due process.  Specifically, defen­dant objects to the statement and actions made by the prose­

cutor:

"Harassment is a form of abuse that carries

with it the force of a fist, [counsel makes

a smacking sound with her hands] just as 

surely as if that victim is being struck

with that closed and clenched fist."

Defendant contends this comment and action deprived him of a fair trial.

The State contends defendant has waived this issue because he failed to object at trial as well as specify to what he referred in his posttrial motion when he simply stated "[t]he State's Attorney made inflammatory statements during the [f]inal [a]rgument."  To sustain an argument for appeal, both an objec­

tion at trial and a written posttrial motion raising the objec­

tion are required.  
People v. Enoch
, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988).  Defendant failed to object at trial and has clearly waived this issue.  Further, on the merits the issue does not amount to error.

The State's argument was not inflammatory.  The State was em­pha­siz­ing the seri­ousness of this offense in response to defendant's contention he simply sent a note to his ex-wife, and his words stating he had beat­en a pre­vious charge could not upset her when she knew they were not true.  

The jury may well have inferred defendant sent the note false­ly claim­ing he had beat­en the pre­vi­ous charge against him to thumb his nose at both JoEllen and the existence of the order it­

self.  It was an at­tempt to dem­on­strate he could con­tact her with impu­ni­ty.  It in­clud­ed the im­plied threat she should not try making a com­plaint against him again because it was futile.  Read­ing defendant's note could be analogized to a slap in the face to JoEllen.  The prosecutor's words and ac­tions in clos­ing argu­ment were well cho­sen to con­vey this concept to the jury.  The prosecutor's clos­ing argu­ment did not deprive defen­dant of a fair trial.

The judgment of the trial court is affirmed.

Affirmed.

COOK and STEIGMANN, JJ., concur.



 

   

              

