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FIFTH DIVISION
November 1, 2002

No. 1-00-2153

JUSTICE QUINN delivered the opinion of the court:

Following a bench trial, defendant Emil J. Stiles (Stiles) wasfound guilty of violating an order of protection (720 ILCS 5/12-30(West 2000)) issued to Jane Meredith Leggett (Leggett) andsentenced to 18 months' supervision, 10 days in the Sheriff's WorkAlternative Program (SWAP) and fined $150. On appeal, defendantcontends that he was not proved guilty beyond a reasonable doubt. For the following reasons, we affirm.

THE FACTS

At trial, Leggett testified that she and Stiles began datingin December 1998 and lived together until December 1999. OnJanuary 6, 2000, Leggett obtained a temporary emergency order ofprotection against defendant. The order provided that defendantwas not to physically abuse, harass, stalk, interfere withLeggett's personal liberty, or have contact with Leggett by anymeans.

Defendant testified that he went to 28 North Clark Street toobtain an order of protection against Leggett on January 11, 2000. That day, defendant completed the paperwork to obtain an order ofprotection against Leggett and requested that Kelly's Pub be namedas a protected location because he was planning to seek employmentthere. However, the hearing on his order was not held until thefollowing day, on January 12, 2000.

Defendant testified that after completing the paperwork, acourt clerk informed him that an order of protection had beenobtained some days earlier by Leggett. Based on that information,defendant stated that he went to the Daley Center, where he wasserved with Leggett's order of protection. However, defendant hadpreviously indicated in the paperwork for his order of protectionthat there was no other action pending between himself and Leggett. On January 12, the defendant failed, either orally or in hiswritten petition, to inform the court of the existence of Leggett'sorder.

On the night of January 20, 2000, Leggett was at Kelly's Pub, located at 959 West Webster Avenue in Chicago, Illinois, with herfriends George Panothiocas and Greg Sochacki. Leggett testifiedthat the defendant walked into the tavern and upon seeing herscreamed "son of bitch." Defendant then said, "Hi, Jane Meredith. Hi Meredith. What are you doing here? What's up?" The defendant was standing approximately 10 feet from Leggett.

Leggett said that the defendant continued to speak to her,still saying things like "How are you doing?" and "What are youdoing here?" Defendant then said to Panothiocas, "So, I see youmade a new friend." Neither Leggett nor Panothiocas responded todefendant.

Leggett further testified that defendant told her, "I'm goingto get you kicked out of here. Just watch." Defendant then wentto a public telephone where she overheard him call the police andtell the police that he had a restraining order against her, shewas on the premises, and she needed to be removed. When the policearrived, Leggett showed them her order of protection againstdefendant, and the police informed her that defendant had an orderof protection against her as well. When Leggett told the policeshe had not been served with defendant's order, they told her toconsider herself served. The police then told her that defendantwas in violation of her order of protection and would be removedfrom the tavern.

Panothiocas testified that he, Leggett and Sochacki had beenat Kelly's Pub for approximately an hour when the defendant enteredthe bar. When defendant entered he "made some kind of derogatory comment." Panothiocas stated that he thought defendant said, "sonof a bitch or all s***." Panothiocas said that he did not believethat the comment was directed at Leggett but instead was a generalcomment that the defendant made upon seeing Leggett. Defendantthen said, "you should not be here" and "you have to leave." Defendant then "walked to the end of the bar. He took a seat,[and] made a comment to me." The defendant said, "have you founda new friend?" Panothiocas did not respond. Panothiocas statedthat the defendant said, "watch this." The defendant then spoke toa couple of guys at the end of the bar and called the police, whoarrived shortly thereafter.

Sochacki testified that when the defendant walked into thebar, he made a comment after seeing Leggett. Sochacki said that hethought the defendant said, "god damn it or Jesus Christ or son ofa bitch." Defendant then walked to the end of the bar. Sochackisaid that there were some verbal exchanges, none of which he coulddiscern. Sochacki stated that Leggett did not reply. The defendantthen said that he was going to call the police, and he requestedthe phone number or the telephone book and made a phone call. While they were waiting, defendant asked Panothiocas "did you makea new friend or have you made a new friend or something like that." The police arrived next.

Defendant testified that he had been a "regular" at Kelly'sPub for several years before, during and after his relationshipwith Leggett. Defendant testified that on the evening of January 20, 2000, when he saw Leggett at Kelly's Pub, he informed Leggettof his order of protection against her and told her that she shouldleave the tavern, believing that his order meant that he could goto Kelly's Pub but Leggett could not. Defendant then called thepolice. Defendant denied uttering an expletive upon seeing Leggettor going near her in the tavern.

In finding defendant guilty, the court stated that defendant'sorder of protection had been fraudulently obtained and thatdefendant had violated Leggett's order of protection. The courtspecifically stated that the case "really comes down to a matter ofthe documents. *** The order of protection obtained by Ms. Leggett*** indicates no contact by any means."

The trial court entered a finding of guilty on May 30, 2000. Stiles timely filed this appeal.

ANALYSIS

Stiles argues that the State failed to prove that he violatedLeggett's order of protection beyond a reasonable doubt. Stilesasserts that he did not possess the requisite intent to violateLeggett's order of protection because he mistakenly believed thathis order of protection allowed him to remain in Kelly's Pub.

"[T]he State carries the burden of proving beyond a reasonabledoubt each element of the offense and the defendant's guilt." People v. Maggette, 195 Ill. 2d 336, 353 (2001), citing People v.Ware, 23 Ill. 2d 59, 62 (1961). A reviewing court will not setaside a criminal conviction on grounds of insufficient evidenceunless the proof is so improbable or unsatisfactory that thereexists a reasonable doubt of the defendant's guilt. Whenconsidering the sufficiency of the evidence, it is not the functionof a reviewing court to retry the defendant. Rather, the relevant question is whether, after reviewing all of the evidence in thelight most favorable to the prosecution, any rational fact findercould have found beyond a reasonable doubt the essential elementsof the crime. Maggette, 195 Ill. 2d at 353.

It is well-settled that when a case is tried without a jury, it is the responsibility of the trial judge to determine thecredibility of the witnesses and weight to be given theirtestimony, and where the evidence is merely conflicting, areviewing court will not substitute its judgment for that of thetrier of fact who heard the evidence. People v. Anderson, 325 Ill.App. 3d 624, 634 (2001).

"A person violates an order of protection of which he hasnotice when he commits an act prohibited by a court in a validorder of protection." People v. Priest, 297 Ill. App. 3d 797, 800-01 (1998), citing People v. Gee, 276 Ill. App. 3d 198, 200 (1995). "The common law recognized that a crime required both actus reus,a guilty act, and mens rea, a guilty mind, and, with the exceptionof certain absolute liability offenses, the Criminal Code of 1961(the Criminal Code) (720 ILCS 5/1-1 et seq. (West 2000)) retainsthis distinction. Compare 720 ILCS 5/4-1 (West 2000) ('VoluntaryAct') with 720 ILCS 5/4-3 (West 2000) ('Mental State')." People v.Mandic, 325 Ill. App. 3d 544, 547 (2001). Here, the State wasrequired to prove that: (1) defendant committed an act prohibitedby an order of protection or failed to perform an act required byan order of protection, and (2) defendant had been served notice ofor otherwise acquired actual knowledge of the contents of theorder. Mandic, 325 Ill. App. 3d at 547, citing 720 ILCS 5/12-30(a)(West 2000).

It is undisputed that defendant had notice of Leggett's order of protection. The question for the trial court was whetherdefendant committed an act prohibited by Leggett's order ofprotection. Leggett's order of protection clearly stated that"Respondent is further ordered and/or enjoined as follows: NOCONTACT BY ANY MEANS." As to the incident in question, Leggett,Panothiocas and Sochacki all testified that when defendant sawLeggett he used profanity and then he spoke to her. Defendant'sactions constituted a violation of the order of protection'sprovision that he was to have "no contact by any means" withLeggett.

In People v. Mandic, 325 Ill. App. 3d 544, this court affirmedthe defendant's conviction for violating an order of protectionwhich provided that he was to "stay away" from his ex-wife andtheir children. The defendant violated the order of protection bygoing to the church that his ex-wife and their children attended. The defendant knew they would be there and the trial court foundthat defendant had physical contact with his children at thechurch. Mandic, 325 Ill. App. 3d at 549. "Whether a defendant whois otherwise lawfully present in a public place comes withinsufficient proximity of a protected person who is also presentthere to constitute a violation of a stay-away order will depend ona variety of factors. See Bailey, 167 Ill. 2d at 229. A courtshould consider factors including, but not limited to, the size ofthe public area, the total number of people present, thedefendant's purpose for being present, the length of time, and whenthe defendant knew or should have known that a protected partywould be present." Mandic, 325 Ill. App. 3d at 549.

In People v. Bailey, 235 Ill. App. 3d 1, 2 (1992) this courtaffirmed the defendant's conviction for violating an order ofprotection which provided that the defendant was to have "nocontact with Terri Bailey." After reviewing the language of theorder of protection, this court affirmed the defendant's convictionand rejected his defense that he had a right to be in the parkinglot where he exchanged words with his ex-wife and her boyfriend. "Even if they met accidentally, the burden would fall upon him toget away from her. ***When he pulled his auto in front of thevehicle occupied by Terri and then confronted her companion, heviolated the court order." Bailey, 235 Ill. App. 3d at 3-4. Applying the holdings in Mandic and in Bailey to the facts in theinstant case, it is abundantly clear that defendant violatedLeggett's order of protection.

Defendant argues that he should not have been found guiltybecause he was acting pursuant to a valid order of protection whichprohibited Leggett from "entering or remaining at Kelley's Pub, atavern defendant frequented. We disagree. 12-30 (a) of theCriminal Code provides in part: "There shall be a presumption ofvalidity where an order is certified and appears authentic on itsface." 720 ILCS 5/12-30(a) (West 2000). However, section 215 of theIllinois Domestic Violence Act of 1986 (Domestic Violence Act)provides:

"Mutual orders of protection are prohibited.  Correlative separate orders of protection undermine the purpose of this Act and are prohibited unless both parties have properly filed written pleadings, proved past abuse by the other party, given prior written notice to the other party unless excused under Section 217, satisfied all prerequisites for the type of order and each remedy granted, and otherwise complied with this Act. In these cases, the court shall hear relevant evidence, make findings, and issue separate orders in accordance with Sections 214 and 221. The fact that correlative separate orders are issued shall not be a sufficient basis to deny any remedy to petitioner or to prove that the parties are equally at fault or equally endangered." 750 ILCS 60/215 (West 2000).

The defendant secured his order of protection in violation of section 215 of the Domestic Violence Act. See In re Marriage ofGordon, 233 Ill. App. 3d 617, 648 (1992). The trial court in theinstant case specifically stated: "I find the order of protectionwas fraudulently obtained by Mr. Stiles." While section 12-30 ofthe Criminal Code provides that orders are presumed to be validwhen they are certified and appear authentic on their face, thispresumption may be overcome, as the trial court in the instant casefound. Assuming arguendo that Stiles' order of protection was valideven though it was fraudulently obtained and not served uponLeggett, the existence of that order in no way voided Leggett'sorder of protection, which provided that Stiles was to have "nocontact by any means" with Leggett. If defendant wished to enforcethe proscription, in his order of protection barring Leggett fromdefendant's favorite tavern, defendant should have gone directly toa phone and called the police to remove Leggett. Defendant was notfree to violate the provisions of Leggett's order of protection.

For the foregoing reasons, defendant's conviction and sentenceare affirmed.

Affirmed.

GREIMAN, J., concurs.

REID, J., dissents.

JUSTICE REID, dissenting:

I disagree with the majority's conclusion that Stiles violatedLeggett's order of protection. In my humble opinion, Stiles didnot violate Leggett's order of protection because he lacked therequired scienter. Since violating an order of protection is nota strict liability offense (Mandic, 325 Ill. App. 3d at 548), thequestion for this court is whether the defendant possessed therequisite intent to be found guilty beyond a reasonable doubt.

Section 12-30 states: "There shall be a presumption ofvalidity where an order is certified and appears authentic on itsface." 720 ILCS 5/12-30(West 2000) Further, section 215 provides:

"Mutual orders of protection are prohibited. Correlativeseparate orders of protection undermine the purposes ofthis Act and are prohibited unless both parties haveproperly filed written pleadings, proved past abuse bythe other party, given prior written notice to the otherparty unless excused under Section 217, satisfied allprerequisites for the type of order and each remedygranted, and otherwise complied with this Act. In thesecases, the court shall hear relevant evidence, makefindings, and issue separate orders in accordance withSections 214 and 221. The fact that correlative separateorders are issued shall not be a sufficient basis to denyany remedy to petitioner or to prove that the parties areequally at fault or equally endangered." 750 ILCS 60/215(West 2000).

Here, the defendant had what he believed to be a valid orderof protection. At the hearing held on January 12, 2000, Stilesshould have informed the trial judge that the paperwork for hisorder of protection needed to be amended. The defendant shouldhave informed the trial judge that since the time he had initiallyfilled out the paperwork for his order of protection, he had cometo learn of the existence of Leggett's order of protection. Thiswas not done.

Stiles was a layman and not an experienced attorney. It wouldnot be appropriate to hold a layman to the same standards as anattorney. It does not appear that Stiles attempted to fraudulentlyobtain his order of protection. When he initially filled out theforms for his order of protection, the defendant provided truthfulinformation. However, the defendant was unable to appear before ajudge.

The next day at the hearing, Stiles failed to inform the courtthat he had learned of Leggett's order of protection. Thisomission did not appear to be intentional, but rather the mistakeof a layman. Had the court questioned him and he then gave anuntrue answer, this would be a different case.

Situations like this, where individuals basically race to thecourthouse to acquire ex parte orders of protection, are notuncommon. At the hearing held on January 12, the trial judge shouldhave asked the defendant from the bench if Leggett held a separateorder of protection against him. This simple question from thejudge would have prevented this situation from occurring. Thereneeds to be an administrative measure taken by trial courts toprevent events like this from happening. Here, because Leggett hadonly just come to the courthouse six days earlier to get an orderof protection, the court clerk remembered her name and related thisinformation to Stiles. Why is this important information notavailable to the judge who is issuing the orders of protection? Had this occurred, only one order of protection would have beenissued instead of two.

When defendant entered Kelly's Pub, he possessed an order ofprotection that prohibited Leggett from being there. Even if thatorder was voidable, it was valid until a judge vacated it. Stilesbelieved that he could rightfully remain at Kelly's Pub. Thedefendant told Leggett that she could not be there based on hisorder of protection and then he called the police. Under theseundisputed facts, the defendant did not violate the Leggett orderof protection because he did not have the requisite scienter.

For the foregoing reasons, therefore, I respectfully dissent.