                         No. 3--08--0583
               (Consolidated with No. 3--08--0780)
_________________________________________________________________
Filed June 22, 2010
                              IN THE

                     APPELLATE COURT OF ILLINOIS

                           THIRD DISTRICT

                             A.D., 2010

THE PEOPLE OF THE STATE         ) Appeal from the Circuit Court
OF ILLINOIS,                    ) of the 12th Judicial Circuit,
                                ) Will County, Illinois,
     Plaintiff-Appellee,        )
                                )
     v.                         ) No. 08--CM--741
                                )
WILLIAM L. HINTON,              ) Honorable
                                ) Bennett J. Braun,
     Defendant-Appellant.       ) Judge, Presiding.
_________________________________________________________________

       JUSTICE CARTER delivered the opinion of the court:
_________________________________________________________________

     Following a jury trial, the defendant, William L. Hinton,

was found guilty of violating an order of protection (720 ILCS

5/12--30 (West 2006)) and sentenced to 364 days in jail and fines

and costs.   The defendant appeals, contending that his conviction

should be reversed because the State failed to prove that he had

notice or knowledge of the order of protection.    We reverse.

                                FACTS

     The complaint charged the defendant with violating an order

of protection by making contact with a protected residence on

February 24, 2008.   The subject order of protection was a plenary

order that was entered on November 14, 2007, extending a

previously issued emergency order of protection.    The defendant
declined appointed counsel, and represented himself in the

pretrial proceedings and the jury trial.

     The evidence at trial consisted of two exhibits and the

testimony of Will County Sheriff's Deputy James O'Halloran.    The

State's first exhibit was a certified copy of the emergency order

of protection, which was issued on October 24, 2007.    It ordered

the defendant to stay away from 329 West Oak Avenue, Lockport,

Illinois.    It also ordered the defendant to stay away from

protected persons George Hinton, the defendant's brother, and

Mary Hinton, the defendant's mother.    It provided that the

emergency order was effective until November 14, 2007, and that

there would be a hearing on the entry of a plenary/interim order

of protection on that date.    The first exhibit also contained a

certified copy of the plenary order of protection, entered on

November 14, 2007, extending the emergency order of protection

under the same terms and conditions until November 13, 2009.

     O'Halloran testified that he was dispatched to the residence

at 329 West Oak Avenue on February 24, 2008.    George informed

O'Halloran that he had an order of protection against the

defendant.    O'Halloran contacted Will County communications and

verified that there was an order of protection in effect.

O'Halloran found the defendant in the basement of the residence

and arrested him.    O'Halloran testified that the State's second

exhibit, which was a cover sheet for orders of protection kept in


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the ordinary course of business by the sheriff's department,

showed that the defendant was personally served on October 24,

2007, with the emergency order of protection while in the Will

County jail.   The defendant remained in jail until January 10,

2008.   The defendant did not present any evidence.

     The jury found the defendant guilty.   The trial court

sentenced the defendant to 24 months of conditional discharge,

364 days in the county jail, and fines and costs of $250.

Subsequently, however, the defendant filed a petition for relief

from judgment in the trial court, which was granted in part.    The

parties agreed that the original sentence was illegal, and the

order of conditional discharge was vacated.   The defendant

appealed.

                              ANALYSIS

     The defendant contends that his conviction must be reversed

because the State failed to prove that he had notice or knowledge

of the extended, plenary, order of protection, as required by

section 12--30(a)(2) of the Criminal Code of 1961 (Code) (720

ILCS 5/12--30(a)(2) (West 2006)). Although the defendant claims

he is not contesting the facts and argues this court should

review the matter de novo (See People v. Smith 191 Il. 2d 408,

732 N.E.2d 513 2000)), he is contesting the inferences that can

be drawn from the evidence.   Thus, the defendant's challenge is

to the sufficiency of the evidence supporting the jury verdict.


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When a defendant challenges the sufficiency of the evidence, the

applicable 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

a crime beyond a reasonable doubt.   People v. Collins, 106 Ill.

2d 237, 478 N.E.2d 267 (1985).   Under this standard, a reviewing

court resolves all reasonable inferences in favor of the State.

Collins, 106 Ill. 2d 237, 478 N.E.2d 267.

     A person commits the offense of violating an order of

protection when he commits an act prohibited by a valid order of

protection and has been served notice of the contents of the

order "or otherwise has acquired actual knowledge of the contents

of the order."   720 ILCS 5/12--30(a)(2) (West 2006).   Under

section 223(d)(4) of the Illinois Domestic Violence Act of 1986,

actual knowledge can be shown by service, notice, or "[b]y other

means demonstrating actual knowledge of the contents of the

order."   750 ILCS 60/223(d)(4) (West 2006).   The defendant does

not deny that he was found in the basement of the residence at

329 West Oak Avenue, which was subject to the stay away order of

both the emergency and plenary orders of protection.    Rather, the

focus of defendant's argument is that he had no notice or actual

knowledge of the plenary order of protection.

     The State presented evidence that the defendant was

personally served with the emergency order of protection while he


                                 4
was in the Will County jail.    The State also showed that the

emergency order was extended on November 14, 2007.    The State

failed, however, to present any evidence to show that the

defendant received notice of the plenary order.    Although the

emergency order warned the defendant that a plenary order could

be entered against him by default if he failed to appear at the

hearing, the defendant was still in jail on the date of the

hearing.   The State did not show that the defendant was brought

to court for the hearing or that he was later served with notice

of the plenary order.

     The focus of our inquiry, then, is whether there was

sufficient evidence for the jury to find that the defendant had

otherwise acquired actual knowledge of the order of protection

that he was charged with violating.    People v. Ramos, 316 Ill.

App. 3d 18, 735 N.E.2d 1094 (2000).    In general, knowledge is the

awareness of the existence of facts that make a defendant's

conduct unlawful.    People v. Gean, 143 Ill. 2d 281, 573 N.E.2d

818 (1991).    Section 4--5(a) of the Code, defining knowledge,

states that:

           "[a] person knows, or acts knowingly or with knowledge

     of:

           (a) The nature or attendant circumstances of his or her

     conduct, described by the statute defining the offense, when

     he is consciously aware that his conduct is of such nature


                                  5
     or that such circumstances exist.       Knowledge of a material

     fact includes awareness of the substantial probability such

     fact exists."   720 ILCS 5/4--5(a) (West 2006).

     Section 12--30 of the Code (720 ILCS 5/12--30 (West 2006))

requires "actual knowledge," which is defined by Black's Law

Dictionary as:

          "Direct and clear knowledge, as distinguished from

     constructive knowledge[.] ***       Knowledge of such information

     as would lead a reasonable person to inquire further."

     Black's Law Dictionary 876 (7th ed. 1999).

The State argues that the defendant had constructive knowledge of

the plenary order of protection.       Constructive knowledge,

however, is defined as:

          "[k]nowledge that one using reasonable care or

     diligence should have, and therefore that is attributed by

     law to a given person."   Black's Law Dictionary 876 (7th ed.

     1999).

Considering the definitions of actual and constructive knowledge,

and the legislature's specific use of the word "actual," we find

that proof of constructive knowledge is insufficient under

section 12--30 of the Code.

     The question remains, then, whether the State's evidence

proved that the defendant actually knew about the plenary order,

i.e., whether there was evidence that showed that the defendant


                                   6
was aware that the plenary order had been entered or that there

was at least a substantial probability that the order had been

entered, which would have led a reasonable person to inquire

further.

     Actual knowledge can be, and is often, proven by

circumstantial evidence.    People v. Austin, 123 Ill. App. 3d 788,

463 N.E.2d 444 (1984).    "Circumstantial evidence is proof of

facts or circumstances that give rise to reasonable inferences of

other facts that tend to establish guilt or innocence of the

defendant."   People v. Saxon, 374 Ill. App. 3d 409, 417, 871

N.E.2d 244, 251 (2007).    Whether based on circumstantial or

direct evidence, however, the inference of knowledge must "based

on established facts and not pyramided on an intervening

inference."   People v. Pinta, 210 Ill. App. 3d 1071, 1078, 569

N.E.2d 1255, 1260 (1991).    Proof of actual knowledge cannot be

based on circumstances that give rise only to conjecture and

suspicion.

     In this case, even construing the evidence in the light most

favorable to the prosecution, we cannot find sufficient facts to

support the jury's finding that the defendant had actual

knowledge of the November 14, 2007, plenary order of protection.

The evidence at trial was limited to a showing that the defendant

had notice of the emergency order, so that he knew that a plenary

order could be entered after the hearing on November 14, 2007.


                                  7
Although the plenary order was in fact entered, the State offered

no evidence of facts that would tend to show the defendant's

knowledge that the order was entered.      The State had the burden

to present some evidence from which the jury could find that the

defendant was aware and conscious of the order of protection,

i.e., that he had actual knowledge.    Thus, we conclude that there

was insufficient evidence for the jury to find beyond a

reasonable doubt that the defendant knew that the plenary order

had been entered and was in full force and effect on the date he

entered the protected residence.

                              CONCLUSION

     For the foregoing reasons, the judgment of the circuit court

of Will County is reversed.

     Reversed.

     LYTTON and WRIGHT, J. J. concurring.




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