                       Illinois Official Reports

                              Appellate Court



                  People v. Crabtree, 2015 IL App (5th) 130155



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           ISSAC B. CRABTREE, Defendant-Appellant.



District & No.    Fifth District
                  Docket No. 5-13-0155



Filed             July 30, 2015



Decision Under    Appeal from the Circuit Court of Richland County, No. 12-CF-92; the
Review            Hon. Larry D. Dunn, Judge, presiding.



Judgment          Affirmed.



Counsel on        Michael J. Pelletier, Jacqueline L. Bullard, and Allen H. Andrews, all
Appeal            of State Appellate Defender’s Office, of Springfield, for appellant.

                  David Hyde, State’s Attorney, of Olney (Patrick Delfino, Stephen E.
                  Norris, and Patrick D. Daly, all of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE GOLDENHERSH delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Cates and Justice Chapman concurred in the
                  judgment and opinion.
                                              OPINION

¶1        After a jury trial in the circuit court of Richland County, defendant, Issac B. Crabtree, was
     convicted of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2010)) in
     that defendant, who was 17 years or older, placed his hand on the body near the vagina of R.F.,
     the victim, who was under 13 years of age. Defendant was sentenced to 180 days in the county
     jail and a term of 48 months’ probation. As conditions of his probation, defendant was ordered
     inter alia to (1) refrain from communicating with or contacting via the Internet any person he
     reasonably believes is under 18 years of age and not related to him, (2) refrain from accessing
     or using a social networking website, and (3) not use any computer “scrub” software on a
     computer that he uses. The issue raised in this appeal is whether the three conditions of
     defendant’s probation which restrict his use of computers are proper in light of the fact that a
     computer was not used in the commission of the underlying offense. We affirm.

¶2                                               FACTS
¶3       On March 11, 2012, defendant, age 22, was charged with aggravated criminal sexual abuse
     after the victim (date of birth September 12, 2001) told her fourth-grade teacher that defendant
     inappropriately touched her. Defendant was a friend of the victim’s family and previously
     lived with the family for over a year, oftentimes babysitting for the victim and her younger
     sister. At the time of the alleged offense, however, defendant had moved out of the home after
     the victim’s mother and stepfather had another baby and their house became too small.
¶4       On the day of the alleged incident, the victim’s family held a cookout, and there were
     several guests, including defendant. Because defendant did not have a ride home, the victim’s
     family invited him to spend the night on the couch and the victim’s mother offered to drop him
     off at his home the next morning on her way to work. Several witnesses testified that it was
     common for defendant to spend the night.
¶5       The victim testified she shared a room with her younger sister and was asleep on her
     mattress in their bedroom when she woke up after hearing her blanket rustle. She felt a hand
     moving inside her underwear by her vagina. She said she “squinted” her eyes and saw
     defendant on his knee by her bed. She was frightened and was not sure what to do. Ultimately,
     she lurched up, causing defendant to jump up and twirl one way and then another and jump out
     of her room. The following morning she woke up to go to school and defendant was asleep on
     the couch. Defendant woke up and made a hand gesture toward her in which he pointed his
     index finger at her and moved his thumb and said, “Bang.”
¶6       The victim testified she gave defendant a “mean” look and stomped her foot. The victim
     then went to school. The victim testified she was scared and did not tell her mother or
     stepfather what happened during the night. At school, she asked to talk privately with her
     teacher and told her teacher defendant touched her inappropriately. The teacher took the victim
     to the school nurse. The authorities were notified, and a police officer interviewed the victim at
     the Child Advocacy Center. The interview was recorded on a DVD and played for the jury.
¶7       The victim’s mother and stepfather testified. The victim’s stepfather, who admitted he was
     previously convicted of aggravated robbery, testified that several weeks before the incident in
     question defendant babysat the children while he and his wife went out for drinks. After
     coming home, the stepfather passed out on the couch. At some point, he woke up and saw


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       defendant walking down the hallway into the victim’s room. Ultimately, he found defendant
       standing near his younger daughter’s bed. Defendant explained that the daughter dropped her
       blanket and he was covering her.
¶8         The victim’s mother testified she did not notice anything unusual about the victim’s
       behavior the morning after the cookout. She testified she was not feeling well and called in sick
       to work. Her husband took her to the clinic to see a doctor and they dropped defendant off at his
       home on their way back from the clinic.
¶9         After learning about the victim’s allegations, defendant agreed to be interviewed by the
       police. The interview was recorded on a DVD and played for the jury. During the interview,
       defendant denied inappropriately touching the victim. At trial, defendant testified in his own
       defense. He again denied touching the victim. He admitted he was in the victim’s room on the
       night in question, but explained he was looking for the victim’s sister, who was not in her bed.
¶ 10       After hearing all the evidence, the jury convicted defendant of the offense. The trial court
       sentenced defendant to 180 days in jail and 48 months’ probation. The trial court also ordered
       defendant to comply with numerous conditions contained on a preprinted form titled
       “Supplemental Order of Conditions of Probation for Sex Offenses,” including the following
       three conditions:
                    “4. COMMUNICATING BY INTERNET. If convicted of an offense committed
                on or after June 1, 2008[,] that would qualify defendant as a child sex offender as
                defined in Section 11-9.3 or 11-9.4 of the Criminal Code of 1961, you shall refrain
                from communicating with or contacting, by means of the Internet, a person who is not
                related to you and whom you reasonably believe to be under 18 years of age; for
                purposes of this paragraph, ‘Internet’ has the meaning ascribed to it in Section 16J-5 of
                the Criminal Code of 1961; and a person is not related to you if the person is not: (i)
                your spouse, brother, or sister; (ii) a descendent of yours; (iii) a first or second cousin;
                or (iv) your step-child or adopted child;
                    ***
                    6. SOCIAL NETWORKING WEBSITES PROHIBITED. If convicted of a sex
                offense as defined in the Sex Offender Registration Act [(730 ILCS 150/1 et seq. (West
                2010))] committed on or after January 1, 2010, you shall refrain from accessing or
                using a social networking website as defined in Section 16D-2 of the Criminal Code of
                1961 [(720 ILCS 5/16D-2 (West 2010) (repealed by Pub. Act 96-1551, art. 5, § 5-6
                (eff. July 1, 2011))). Social networking website is now defined by section 17-0.5 of the
                Criminal Code of 2012. 720 ILCS 5/17-0.5 (West 2012)].
                    ***
                    8. SCRUB SOFTWARE PROHIBITED. If convicted of a sex offense as defined
                in Section 2 of the Sex Offender Registration Act committed on or after January 1,
                2010, that requires the person to register as a sex offender under that Act, the defendant
                may not knowingly use any computer scrub software on any computer that the sex
                offender uses.”
       In this direct appeal, defendant does not challenge his conviction, but objects to the above three
       conditions of probation.




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¶ 11                                             ANALYSIS
¶ 12       The issue on appeal is whether the three conditions of defendant’s probation restricting his
       use of computers are proper in light of the fact that a computer was not used in the commission
       of the underlying offense. Defendant contends the conditions are not mandatory, and, even if
       they are, the statute is unconstitutional as applied to him. Defendant insists the conditions are
       overly broad because he did not use a computer to commit the offense and, therefore, the trial
       court abused its discretion in imposing them. After careful consideration, we agree with the
       State that the conditions of probation are mandatory, and, further, they are not unconstitutional
       as applied to defendant.
¶ 13       Section 5-6-3(a) of the Unified Code of Corrections (Code) specifically provides for the
       three conditions of probation now in question as follows:
                    “(a) The conditions of probation and of conditional discharge shall be that the
               person:
                                                     ***
                        (8.7) if convicted for an offense committed on or after June 1, 2008 (the
                    effective date of Public Act 95-464) that would qualify the accused as a child sex
                    offender as defined in Section 11-9.3 or 11-9.4 of the Criminal Code of 1961 or the
                    Criminal Code of 2012, refrain from communicating with or contacting, by means
                    of the Internet, a person who is not related to the accused and whom the accused
                    reasonably believes to be under 18 years of age; ***
                        ***
                        (8.9) if convicted of a sex offense as defined in the Sex Offender Registration
                    Act committed on or after January 1, 2010 (the effective date of Public Act
                    96-262), refrain from accessing or using a social networking website as defined in
                    Section 17-0.5 of the Criminal Code of 2012;
                                                     ***
                        (11) if convicted of a sex offense as defined in Section 2 of the Sex Offender
                    Registration Act committed on or after January 1, 2010 (the effective date of Public
                    Act 96-362) that requires the person to register as a sex offender under that Act,
                    may not knowingly use any computer scrub software on any computer that the sex
                    offender uses[.]” (Emphasis added.) 730 ILCS 5/5-6-3(a)(8.7), (8.9), (11) (West
                    2012).
       We point out that subsection (a) specifically describes probationary conditions that “shall” be
       imposed.
¶ 14       The primary rule of statutory interpretation is to determine legislative intent, the best
       indicator of which is the statutory language, which should be given its plain and ordinary
       meaning. Nowak v. City of Country Club Hills, 2011 IL 111838, ¶ 11, 958 N.E.2d 1021. In
       general, use of the word “shall” indicates that the legislature intended to impose a mandatory
       obligation. Schultz v. Performance Lighting, Inc., 2013 IL 115738, ¶ 16, 999 N.E.2d 331.
       Subsection (b) of the statute specifically describes probationary conditions “[t]he Court may in
       addition to other reasonable conditions” order. (Emphasis added.) 730 ILCS 5/5-6-3(b) (West
       2012). Legislative use of the word “may” is generally recognized as indicating a permissive or
       directory reading. When the legislature uses both “may” and “shall” in the same statute, we
       may infer that the legislature knew the difference and intended each word to carry its ordinary

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       meaning. Commonwealth Edison Co. v. Illinois Commerce Comm’n, 2014 IL App (1st)
       132011, ¶ 41 n.2, 16 N.E.3d 801.
¶ 15       Here, the three conditions complained of by defendant are specifically enumerated in
       subsection (a), which uses the word “shall,” indicating the probationary conditions contained
       therein are mandatory. The issue now becomes whether the conditions are unconstitutional as
       applied to defendant. After careful consideration, we believe the conditions are reasonable and
       the value to the public in imposing the restrictions outweighs any impairment to defendant’s
       constitutional rights.
¶ 16       Probation serves as a form of punishment and as a method for rehabilitating the offender.
       People v. Meyer, 176 Ill. 2d 372, 379, 680 N.E.2d 315, 318 (1997). A condition of probation is
       permissible so long as there is some connection between the condition and the underlying
       offense. People v. Whittington, 87 Ill. App. 3d 504, 506, 409 N.E.2d 150, 151 (1980). In
       evaluating whether a probationer’s rights should be restricted, courts determine whether (1) the
       condition of probation reasonably relates to the intended purpose of fostering rehabilitation,
       (2) the value to the public in imposing the condition manifestly outweighs any impairment of
       the probationer’s constitutional rights, and (3) there are any alternative means less subversive
       to the probationer’s constitutional rights that would still comport with the purposes of the
       legislation conferring the benefit of probation. In re J.G., 295 Ill. App. 3d 840, 843, 692 N.E.2d
       1226, 1228-29 (1998).
¶ 17       Defendant fails to identify and we fail to find any protected constitutional right of a person
       to use a computer, the Internet, or a social networking website. In support of removing the
       conditions, defendant cites several federal cases, including United States v. Baker, 755 F.3d
       515 (7th Cir. 2014), and United States v. Goodwin, 717 F.3d 511 (7th Cir. 2013). All are
       distinguishable because they deal with discretionary conditions imposed upon supervised
       release rather than mandatory conditions of probation imposed here pursuant to section
       5-6-3(a) of the Code. In the instant case, although defendant’s crime did not include use of a
       computer or a social networking website, it involved the sexual abuse of a young girl. Thus, the
       conditions of probation appear reasonably related to the goals of deterrence, protection of the
       public, and rehabilitation of defendant.
¶ 18       The first two probationary restrictions complained of essentially bar defendant from
       making contact with an unrelated child through the use of a computer, while the third bars
       defendant from using “scrub software” which could be used to destroy computer evidence of
       violating the first two conditions. A review of the three conditions shows they are limited and
       do not completely bar defendant from using a computer. For example, defendant can still apply
       for jobs via the Internet or do general searches. What he cannot do is contact anyone unrelated
       to him and under the age of 18, nor can he access social networking sites often used by minors.
       Given the nature of the offense of which defendant was convicted, we do not believe these
       mandatory conditions are unreasonable.
¶ 19       For the foregoing reasons, we hereby affirm the judgment of the circuit court of Richland
       County.

¶ 20      Affirmed.




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