                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




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




Appellate 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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