                               Illinois Official Reports

                                      Appellate Court



                          People v. Cannon, 2015 IL App (3d) 130672



Appellate Court          THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                  TRAVIS L. CANNON, Defendant-Appellant.


District & No.           Third District
                         Docket No. 3-13-0672


Filed                    January 7, 2015


Held                       Defendant’s conviction for unlawful consumption of alcohol by a
(Note: This syllabus minor was reversed where the State failed to prove that defendant did
constitutes no part of the not fall within the exemption of the Liquor Control Act providing that
opinion of the court but the consumption of alcohol by a minor under the direct supervision
has been prepared by the and approval of the parents or parent or those standing in loco parentis
Reporter of Decisions of such person in the privacy of a home is not prohibited by the Act.
for the convenience of
the reader.)


Decision Under           Appeal from the Circuit Court of Will County, No. 12-CM-2573; the
Review                   Hon. Cory D. Lund and the Hon. Rick Mason, Judges, presiding.



Judgment                 Reversed.



Counsel on               Frank P. Andreano and Ted P. Hammel (argued), both of Brumund,
Appeal                   Jacobs, Hammel, Davidson & Andreano, LLC, of Joliet, for appellant.

                         James Glasgow, State’s Attorney, of Joliet, and Laura E. DeMichael
                         (argued), of State’s Attorneys Appellate Prosecutor’s Office, of
                         Ottawa, for the People.
     Panel                   JUSTICE LYTTON delivered the judgment of the court, with opinion.
                             Justice O’Brien concurred in the judgment and opinion.
                             Justice Schmidt concurred in part and dissented in part, with opinion.



                                              OPINION

¶1         Defendant, Travis Cannon, was charged with unlawful consumption of alcohol by a
       minor (235 ILCS 5/6-20(e) (West 2012)). Prior to trial, he filed a motion to suppress
       evidence, arguing that the police violated his fourth amendment rights by entering the back
       deck of his home without a warrant or consent. The trial court conducted a hearing and
       denied the motion. Following a bench trial, the court found defendant guilty and sentenced
       him to 24 months’ probation. On appeal, defendant contends that (1) the trial court erred in
       denying his motion to suppress, and (2) the State did not prove him guilty beyond a
       reasonable doubt. We reverse.
¶2         At the hearing on defendant’s motion to suppress evidence, Denise Byrd, a police officer
       with the Village of Minooka, testified that she was on patrol on August 9, 2012, when she
       received a dispatch of a noise complaint and possible underage drinking at 107 Rivers Edge
       Court in Minooka. When she arrived at that address, she heard loud voices that appeared to
       be coming from the rear of the house. She walked to the back of the house but “couldn’t see
       anything from the ground,” so she walked onto the back deck. She observed six or seven
       people sitting around a table that had numerous beer cans and liquor bottles on it. Byrd said,
       “Hi. Hello.” Defendant responded, “Get off my property. You don’t have a warrant to be
       here.” Defendant then told everyone to go inside the house. Byrd remained on the deck while
       everyone “shuffled inside of the house” through the patio door. Byrd could see defendant’s
       mother, Sandra Cannon, inside the house by the patio door.
¶3         Byrd called for backup and walked toward the front of the house. When she got to the
       yard on the side of the house, she saw defendant running toward her. Defendant said he
       would speak to her on the front porch. Byrd testified that she could detect the odor of an
       alcoholic beverage coming from defendant’s mouth.
¶4         On the front porch, Byrd told defendant she wanted to speak to one of his parents.
       Defendant initially refused, but Sandra eventually came out of the house and onto the front
       porch. When Byrd asked Sandra if she was hosting an underage drinking party, she
       responded, “No, there is nobody drinking in the house.”
¶5         Sergeant Matthew Chinski of the Minooka police department testified that he responded
       to Cannon’s home at Byrd’s request. When he arrived, he went to the front porch of the
       property, where he encountered defendant. Defendant had slurred speech, bloodshot and
       glassy eyes, and a strong odor of an alcoholic beverage coming from his facial area, leading
       Chinski to believe that defendant had consumed one or more alcoholic beverages. Chinski
       asked defendant his age. Defendant said he was 19 years old. Defendant was being
       argumentative and attempted to go back inside the house, but Chinski told him he was not
       free to leave and grabbed his shoulder. Defendant’s mother then tried to pull defendant into
       the house, and Chinski arrested her for obstructing justice. Defendant was arrested for
       unlawful consumption of alcohol by a minor.

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¶6         After the above testimony was presented, the State moved for a directed finding, denying
       defendant’s motion to suppress. The trial court granted the State’s motion and denied
       defendant’s motion to suppress. Defendant filed a motion to reconsider, which the trial court
       also denied.
¶7         Defendant then filed a motion to dismiss the charges against him, arguing that he was not
       guilty of underage consumption because he was drinking in his own home under the
       supervision and approval of his mother. The trial court denied the motion, ruling that there
       were questions of fact regarding whether defendant was under his mother’s supervision while
       drinking.
¶8         Defendant’s case proceeded to a bench trial. Byrd testified to the same facts as she did at
       the hearing on defendant’s motion to suppress. She added that she did not see defendant’s
       mother until after defendant “shuffled” everyone from the back deck inside the house. Byrd
       did not know if Sandra was on the back deck prior to that.
¶9         Byrd testified that she asked defendant if he had consumed any alcohol. He replied,
       “No.” Byrd asked to speak to the “owner of the house.” Defendant told her that she was in
       bed. Several minutes later, Sandra came onto the porch. Sandra never said that she allowed
       defendant to drink alcohol, and Byrd never asked Sandra if defendant had permission to
       drink alcohol. Byrd admitted that she did not know if Sandra supervised defendant drinking
       alcohol.
¶ 10       Chinski testified consistently with his testimony at the suppression hearing. He also said
       that he observed that defendant had “slurred[,] thick-tongued speech, bloodshot glassy eyes,
       [and a] pretty strong odor of alcoholic beverage coming from him.” Based on his training and
       experience, Chinski concluded that defendant had consumed alcohol.
¶ 11       Officer Robert Stukel, Jr., of the Minooka police department testified that he responded
       to a call to 107 Rivers Edge Court at approximately 2:13 a.m. on August 9, 2012. When he
       was at the front of the residence, defendant ran toward him and said something like, “What
       are you guys doing on my property?” or “Get the fuck off of my property.” Stukel could
       smell an odor of alcohol emanating from defendant’s breath.
¶ 12       After all of the evidence was presented, the trial court ruled that the State met its burden
       of proving defendant guilty beyond a reasonable doubt of unlawful consumption of alcohol
       by a minor. The court sentenced defendant to 24 months’ court supervision.

¶ 13                                                 I
¶ 14       Defendant first argues that the trial court erred in denying his motion to suppress
       evidence. He contends that Officer Byrd violated his fourth amendment rights when she
       walked onto the back deck of his home without a warrant or consent.
¶ 15       The fourth amendment of the United States Constitution provides: “The right of the
       people to be secure in their persons, houses, papers, and effects, against unreasonable
       searches and seizures, shall not be violated ***.” U.S. Const., amend. IV. Likewise, under
       our state constitution, “[t]he people shall have the right to be secure in their persons, houses,
       papers[,] and other possessions against unreasonable searches[ and] seizures.” Ill. Const.
       1970, art. I, § 6.
¶ 16       Law enforcement officers may lawfully approach the front door of a residence to conduct
       an investigation. People v. Redman, 386 Ill. App. 3d 409, 418 (2008). They can proceed to a

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       back door after they have knocked on the front door and received no answer but they have
       reason to believe someone is home. See People v. Woodrome, 2013 IL App (4th) 130142,
       ¶ 24; Hardesty v. Hamburg Township, 461 F.3d 646, 654 (6th Cir. 2007). Officers may
       approach the back door of a residence where circumstances indicate that the officers might
       find the homeowner there. Alvarez v. Montgomery County, 147 F.3d 354, 356 (4th Cir.
       1998); see also People v. Redman, 386 Ill. App. 3d 409, 418 (2008) (an officer may approach
       the back of a residence “where a legitimate reason is shown for approaching the back door”).
¶ 17       Here, Byrd testified that she initially proceeded to the back of defendant’s house because
       she heard noise coming from there. She proceeded up the back deck, attempting to find and
       speak to the owner of the house. Since noise was coming from the back deck, it was
       reasonable for Byrd to believe that she might find the homeowner there and talk to him or her
       about the noise complaint she was investigating. Based on these circumstances, Byrd did not
       violate defendant’s fourth amendment rights. See Alvarez, 147 F.3d at 356; Redman, 386 Ill.
       App. 3d at 418. The trial court properly denied defendant’s motion to suppress.

¶ 18                                                 II
¶ 19        Defendant next argues that the trial court erred in finding him guilty of unlawful
       consumption of alcohol by a minor because the State failed to prove that his mother was not
       supervising him when he drank alcohol in his home.
¶ 20        The Liquor Control Act of 1934 (Act) provides that “[t]he consumption of alcoholic
       liquor by any person under 21 years of age is forbidden.” 235 ILCS 5/6-20(e) (West 2012).
       However, the Act further provides that “the consumption [of alcoholic liquor] by a person
       under 21 years of age under the direct supervision and approval of the parents or parent or
       those persons standing in loco parentis of such person under 21 years of age in the privacy of
       a home, is not prohibited by this Act.” 235 ILCS 5/6-20(g) (West 2012).
¶ 21        Section 6-20(g) is an exemption to the Act. People v. Finkenbinder, 2011 IL App (2d)
       100901, ¶ 10. When a criminal statute contains an exemption and the legislature intends the
       burden of proving the exemption to be on the defendant, the legislature specifically sets forth
       that intent in a provision of the statute. People v. Perkins, 225 Ill. App. 3d 405, 408 (1992)
       (citing section 24-2(h) of the deadly weapons statute (Ill. Rev. Stat. 1989, ch. 38, ¶ 24-2(h)
       (now 720 ILCS 5/24-2 (West 2012))); section 506 of the Illinois Controlled Substances Act
       (Ill. Rev. Stat. 1989, ch. 56½, ¶ 1506) (now 720 ILCS 570/506 (West 2012))); and section 16
       of the Cannabis Control Act (Ill. Rev. Stat. 1989, ch. 56½, ¶ 716 (now 720 ILCS 550/16
       (West 2012)))). Where a criminal statute contains an exemption and the legislature has not
       set forth a provision within the statute allocating the burden of persuasion as to the
       exemption, we presume that the burden is on the State, not the defendant. Id. The Act does
       not contain a provision indicating who has the burden of proving the exemption set forth in
       section 6-20(g). See 235 ILCS 5/6-1 et seq. (West 2012). As such, the burden of proving that
       the exemption does not apply should be on the State. See Perkins, 225 Ill. App. 3d at 408.1

           1
            The dissent cites People v. Smith, 71 Ill. 2d 95 (1978), for the proposition that defendant bears the
       burden of proving the exemption. However, the deadly weapons statute at issue in Smith stands in stark
       contrast to the Act. The deadly weapons statute states: “The defendant shall have the burden of proving
       *** an exemption.” 720 ILCS 5/24-2(h) (West 2012). The Act contains no provision placing the burden
       of proving its exemption on the defendant. Thus, Smith is not controlling.

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¶ 22       The exemption requires that a parent supervise the minor’s actual consumption of
       alcohol, not all of the minor’s activities while the alcohol is still in his system. People v.
       Haase, 2012 IL App (2d) 110220, ¶ 15. The term “supervise” means “ ‘to coordinate, direct,
       and inspect continuously and at first hand the accomplishment of’ ” an act. Finkenbinder,
       2011 IL App (2d) 100901, ¶ 12 (quoting Webster’s Third New International Dictionary 2296
       (1993)). It is not enough for a parent to approve of the defendant’s consumption of alcohol
       and merely be present in the same house while the defendant is consuming the alcohol. Id.
       ¶ 13. The parent must be “conducting a continuous and first-hand coordination, direction,
       [and] inspection of defendant’s alcohol consumption” so that she is aware of how much
       defendant drank, the type of alcohol defendant drank, and where defendant is at all times
       when drinking. Id.
¶ 23       Here, the State established that defendant was drinking alcohol in his home while his
       mother was present. Although defendant initially told Byrd that his mother could not come to
       the door because she was in bed, the evidence does not support that statement. Officer Byrd
       testified that she saw Sandra awake and inside the house just minutes earlier when all of the
       individuals from the deck shuffled into the house. A few minutes later, Sandra came to the
       front door. No one testified that she looked like she has just gotten out of bed.
¶ 24       It was the State’s burden to establish that defendant was not directly supervised by his
       mother while he was drinking alcohol. Officer Byrd testified that she did not know if Sandra
       was on the back deck or inside the house supervising defendant while he drank alcohol. No one
       testified that they saw defendant drinking outside the presence and supervision of his mother.
       Under the facts of this case, the State failed to meet its burden of proving that defendant did
       not fall within the exemption of the Act. The trial court erred in finding defendant guilty
       beyond a reasonable doubt of unlawful consumption of alcohol by a minor.

¶ 25                                              III
¶ 26      The judgment of the circuit court of Will County is reversed.

¶ 27      Reversed.

¶ 28       JUSTICE SCHMIDT, concurring in part and dissenting in part.
¶ 29       I agree with the majority’s finding that the officer did not violate defendant’s fourth
       amendment rights when she approached the back porch of the house. This is where my
       agreement begins and ends. I would find that defendant had the burden of proving that he
       was entitled to the exemption.
¶ 30       The State bears the burden of proving each element of the crime beyond a reasonable
       doubt. However, at issue here is whether an exemption applied, not whether the State proved
       every element of the crime. The majority equates the exemption to an affirmative defense by
       finding that the State has the burden of proving that the exemption does not apply. Supra
       ¶ 21. I disagree. Affirmative defenses require that the State disprove the affirmative defense
       beyond a reasonable doubt once the defendant presents sufficient evidence to raise such
       defense. People v. Washington, 326 Ill. App. 3d 1089, 1093 (2002) (citing People v. Smith,
       237 Ill. App. 3d 901, 907 (1992)).


                                                  -5-
¶ 31       Contrary to the majority’s position, our supreme court has held that exemptions are
       distinct from affirmative defenses under our statutory scheme. People v. Smith, 71 Ill. 2d 95,
       105 (1978). Where the legislature intends a provision to qualify as an affirmative defense, it
       has labeled it as such. Id. at 106; People v. Jones, 75 Ill. App. 3d 214, 227 (1979).
       Furthermore, the court held that exemptions have never been an issue for the State to prove.
       Smith, 71 Ill. 2d at 105. In fact, “the State need never negate any exemption.” (Emphases
       added.) Id. at 105-06. Requiring the State to disprove an exemption “would place impossible
       burdens upon effective prosecution.” Id. at 105. Furthermore, if the State need disprove an
       exemption, then someone needs to explain to me how an exemption differs from an
       affirmative defense. If the majority is correct, an exemption is no different than an
       affirmative defense. The legislature avoided this problem by requiring the State to prove
       every element of the offense beyond a reasonable doubt, while requiring defendant to prove
       his entitlement to the exemption. Id. Moreover, our supreme court held that placing the
       burden on defendant to prove that he is exempt does not violate fundamental principles of
       justice or due process. Id. at 107.
¶ 32       Here, section 6-20(g) is an exemption to the Act, which forbids the consumption of
       alcohol by a minor. 235 ILCS 5/6-20(g) (West 2012); People v. Finkenbinder, 2011 IL App
       (2d) 100901, ¶ 10. The State was not required to negate that exemption. Evidence established
       that defendant was a minor and consumed alcohol. Defendant failed to present evidence to
       establish that he was entitled to the exemption. Therefore, the court did not err in finding
       defendant guilty of unlawful consumption of alcohol by a minor.
¶ 33       Assuming, arguendo, that the State had the burden of proving that the exemption did not
       apply, I would find that defendant did not provide sufficient evidence to even raise the
       exemption. The statute and case law make it clear that the exemption requires direct
       supervision by a parent; mere presence in the same house is not enough. People v. Haase,
       2012 IL App (2d) 110220; People v. Finkenbinder, 2011 IL App (2d) 100901; 235 ILCS
       5/6-20(g) (West 2012). In Finkenbinder, the defendant’s parents hosted a party; defendant’s
       mother allowed him “to consume alcohol.” Finkenbinder, 2011 IL App (2d) 100901, ¶ 3.
       “During the party, defendant and his mother were not in the same room at all times ***.” Id.
       Police officers later stopped defendant while he was walking in the middle of a street. Id. ¶ 4.
       Defendant admitted to consuming shots of alcohol and three beers. Id. Defendant’s mother
       did not know that he had left the house or that defendant had consumed shots of alcohol. Id.
       ¶ 5. The court found that the mother’s mere presence at the party did not amount to
       “supervision–much less the direct supervision” of the defendant’s consumption of alcohol.
       Id. ¶ 13.
¶ 34       Here, defendant did not present evidence establishing that his mother approved of or
       directly supervised his consumption of alcohol. The evidence merely established that
       defendant’s mother was in the house while defendant consumed alcohol either inside and/or
       outside on the back porch. Therefore, even if the State had to prove that the exemption did
       not apply, I would find that defendant did not present sufficient evidence to raise the
       exemption. The mother’s mere presence in the home during this party was insufficient to
       raise the issue of defendant’s entitlement to the exemption.
¶ 35       For the foregoing reasons, I respectfully dissent.




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