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On September 16, 1998, the defendant was charged by indictmentwith one count of residential burglary (720 ILCS 5/19--3 (West 1998)) and one count of violating an order of protection (720 ILCS5/12--30 (West 1998)). The latter charge alleged that on July 17,1998, the defendant violated an order of protection by entering theresidence of his former wife, Claudia Ramos.

At trial, the State introduced into evidence a copy of anemergency order of protection that had been entered by the circuitcourt of Kane County on July 10, 1998. The order prohibited thedefendant from entering or remaining in Claudia Ramos's residencelocated at 1269 Nantucket Road in Aurora. The order was in effectbetween July 10, 1998, and July 28, 1998. The trial court admittedthe copy of the order into evidence.

Claudia Ramos testified that on July 12, 1998, at 8:30 p.m.,she telephoned her sister and learned that the defendant was on hisway to her home. Claudia ran out her front door and got into hercar. At that time, the defendant had arrived at the residence andhad gotten out of his car. The defendant then got into Claudia'scar and told her that he knew that she had obtained an order ofprotection and that she was going to try to put him in jail.

Claudia further testified that on July 15, 1998, she placed atelephone call to her residence and that the defendant answered thecall. Claudia had not given the defendant permission to be in herresidence on that date. Claudia telephoned the police to advisethem that she had an order of protection and that the defendant wasnot supposed to be in her residence.

On July 17, 1998, when Claudia arrived home, she saw thecurtains in the window move. Claudia believed that the defendantwas inside. Claudia drove to a pay phone and called the police. Once the police arrived at her residence, Claudia let a policeofficer in the back door. The police found the defendant upstairsand arrested him. Once again, Claudia testified that she had notgiven the defendant permission to be in her home.

On cross-examination, Claudia acknowledged that she had nevergiven the defendant a copy of the order of protection. Claudiaalso acknowledged that she did not give a copy of the order to thepolice on July 15, 1998, when she had called them to report thatthe defendant was in her residence.

Officer Gerald Marrero of the Aurora police departmenttestified that on July 15, 1998, he received a dispatch for apossible violation of an order of protection at the address of 1269Nantucket. Officer Marrero drove to the scene with his partner,Officer John Saltigeral. When they arrived at the scene, theyknocked on the door but there was no answer. Officer Marrero heardfootsteps in the residence and instructed Officer Saltigeral to goto the back door. Officer Marrero remained near the front of thehouse, and a few moments later he observed Officer Saltigeral comethrough the front door with the defendant.

Officer Marrero placed the defendant under arrest forviolating an order of protection and transported the defendant tothe Aurora police station. The defendant told Officer Marrero thathe did not know that there had been an order of protection enteredagainst him. At the station, Officer Marrero attempted to confirmthe existence of the order of protection with the Kane Countysheriff's department, but the sheriff's department could not locatethe order. Officer Marrero released the defendant from custodybecause he could not confirm or locate the order of protection. Prior to releasing the defendant, Officer Marrero instructed him tostay away from Claudia and her residence at 1269 Nantucket. Twentyminutes after the defendant was released, the sheriff's departmentcontacted Officer Marrero to advise him that the order ofprotection had been located and that the order was valid. Oncross-examination, Officer Marrero acknowledged that no copy of theorder of protection was given to the defendant on July 15, 1998.

Officer Kevin Jenkins of the Aurora police departmenttestified that on July 17, 1998, he drove to 1269 Nantucket inresponse to a dispatch concerning a possible violation of an orderof protection. Officer Jenkins entered the residence through theback door and announced the presence of a police officer. OfficerJenkins found the defendant under a mattress in one of the second-floor bedrooms. The defendant was placed under arrest forviolating an order of protection.

The State and the defendant stipulated to a certified copy ofthe defendant's previous conviction on May 30, 1996, of violatingan order of protection. The certified copy was entered intoevidence.

The defendant testified that he had been living at 1269Nantucket late in June and early in July. At this time, Claudiahad moved out of the residence with their children and moved intoher mother's house. On July 15, 1998, as he was going out of thehouse, he was arrested by two police officers. He had to remain atthe police station for two hours before he was finally released. While at the police station, no officer showed the defendant a copyof the July 10, 1998, order of protection or read to him thecontents of the order. The defendant also testified that noofficer instructed him to collect his clothing and property andmove out of the residence.

The defendant further testified that on July 17, 1998, he wasarrested again. At the time of his arrest, the defendant wassleeping in his underwear, and he hid under the mattress because hewas embarrassed and confused.

At the close of evidence the trial court found the defendantguilty of violating an order of protection (720 ILCS 5/12--30 (West1998)), but not guilty of the offense of residential burglary (720ILCS 5/19--3 (West 1998)). As to the former charge, the trialcourt noted that the State was not required to prove that thedefendant had been served a copy of the order of protection;rather, the State was only required to prove that the defendant had"acquired actual knowledge of the contents of the order" (720 ILCS5/12--30(a)(2) (West 1998)). The trial court found that, prior toJuly 17, 1998, the defendant knew that an order of protection hadbeen entered against him and that he was not permitted in theresidence at 1269 Nantucket. The trial court found that thedefendant was aware of this fact as a result of his communicationswith Claudia and Officer Marrero. The trial court found that,despite this knowledge, the defendant nonetheless went into theresidence at 1269 Nantucket on July 17, 1998.

Following a sentencing hearing, the defendant was sentenced toan extended term of four years' imprisonment. The defendantsubsequently filed a timely notice of appeal.

The defendant's first contention on appeal is that he was notproved guilty beyond a reasonable doubt. The defendant argues thatthe State failed to prove that he had acquired knowledge of thecontents of the order of protection. The defendant argues that,although he might have acquired knowledge as to one of the actsprohibited under the order, he had not been told of the entirecontents of the order.

When considering a challenge to the sufficiency of theevidence, it is not the function of this court to retry thedefendant. People v. Collins, 106 Ill. 2d 237, 261 (1985). Therelevant question is whether, after viewing the evidence in thelight most favorable to the prosecution, any rational trier of factcould have found the essential elements of the crime beyond areasonable doubt. Collins, 106 Ill. 2d at 261. The determinationof the weight to be given to the witnesses' testimony, theircredibility, and the reasonable inferences to be drawn from theevidence are the responsibility of the fact finder. Collins, 106Ill. 2d at 261.

One commits the offense of violating an order of protection bycommitting an act that was prohibited by a court in a valid orderof protection entered pursuant to the Illinois Domestic ViolenceAct of 1986 (750 ILCS 60/214 (West 1998)). 720 ILCS 5/12--30(a)(1)(West 1998). However, section 12--30(a)(2) of the Criminal Code of1961 (the Code) provides that a defendant cannot be charged withviolating an order of protection unless he has been "served noticeof the contents of the order, pursuant to the Illinois DomesticViolence Act of 1986 ***, or otherwise has acquired actualknowledge of the contents of the order." 720 ILCS 5/12--30(a)(2)(West 1998).

In the instant case, the parties do not dispute that the Stateproved the existence of a valid order of protection that prohibitedthe defendant from entering the residence at 1269 Nantucket. Noris there any dispute that the defendant's presence at the residenceat 1269 Nantucket on July 17, 1998, was a violation of the order ofprotection. Rather, as noted above, the focus of the defendant'sargument centers on whether he had acquired actual knowledge of thecontents of the order prior to his arrest. The defendant assertsthat State was obligated to prove that he had acquired knowledge ofthe entire contents of the order of protection, including the datethe order was issued, the date the order expired, the possiblepenalties for violation of the order, and when the next status datewas scheduled.

Contrary to the defendant's assertions, we do not believe that section 12--30(a)(2) of the Code requires that the defendantacquire knowledge of the entire contents of the order of protectionprior to being charged with the offense. Rather, we believe thatthe statute requires only that the defendant have specificknowledge of the provisions of the order that he is charged withviolating. As evidenced by its plain language, the purpose of thestatute is to prevent the State from prosecuting a defendant forviolating an order of protection in instances where the defendantdoes not know that an order of protection has been entered or doesnot know what conduct is prohibited by the order.

Although the defendant correctly notes that he is entitled toreceive formal service of an order of protection and to be advisedof certain rights, these requirements are contained in sections112A--21 and 112A--22 of the Code of Criminal Procedure of 1963(725 ILCS 5/112A--21, 112A--22 (West 1998)). As noted above,compliance with these service provisions is not required before adefendant may be charged with violating an order of protection. 720 ILCS 5/12--30(a)(2) (West 1998). Rather, the State need onlyshow that the defendant had otherwise acquired knowledge of thecontents of the order. 720 ILCS 5/12--30(a)(2) (West 1998). Weagree with the State that a verbatim reading of the entire contentsof the order of protection is not necessary in order to put thedefendant on notice of what conduct is prohibited. If thelegislature had truly intended that the defendant be informed ofthe entire contents of the order, then we believe that the statutewould have specifically required that a defendant be served a copyof the order of protection before he could be charged withcommitting a violation of the order. As the legislature has notchosen to do so, we decline the defendant's request to incorporatesuch a requirement into the statute. Instead, we conclude that thestatute requires only a showing that the defendant knowinglyviolated a provision of the order of protection.

After a careful review of the record, we conclude that theevidence proved beyond a reasonable doubt that the defendantknowingly violated a provision of the order of protection. On July15, 1998, Officer Marrero told the defendant at the Aurora policestation that there was an order of protection in effect thatprohibited the defendant from entering the residence of ClaudiaRamos. Additionally, on July 13, 1998, the defendant and ClaudiaRamos also had a conversation concerning the existence of the orderof protection that had been entered against the defendant. Duringthis conversation, the defendant acknowledged that there was anorder of protection in effect. Based on these communications, thedefendant knew that an order of protection had been entered thatprevented him from going upon the premises at 1269 Nantucket. Theevidence demonstrated that, despite this actual knowledge, thedefendant entered the residence at 1269 Nantucket on July 17, 1998. We believe that such evidence was sufficient to convict thedefendant of violating an order of protection.

The defendant's second contention on appeal is that hisconviction must be reversed because the State's proof at trial didnot conform to the facts alleged in the indictment. The indictmentalleged that the defendant had been "served with notice of thecontents of an order of protection number 98 OP 442." As detailedabove, the evidence introduced at trial indicated that, althoughthe defendant may have been told about the entry of the order ofprotection, he was not served a copy of the order prior to hisarrest.

To be fatal, a variance between the charging instrument andthe proof at trial must be material and be of such a character asmay mislead the accused in making his defense or expose him todouble jeopardy. People v. Williams, 299 Ill. App. 3d 143, 151(1998). We do not believe that the variance between the charge andthe proof in the instant case was so material as to necessitate anew trial. Despite the allegation in the indictment, the partiesnever disputed that the defendant was not served with a copy of theorder of protection. Rather, the crux of the trial centered uponwhether the defendant had otherwise received knowledge of thecontents of the order.

A review of the record reveals that the defendant argued attrial that he never received actual knowledge that an order ofprotection had been entered against him. The defendant testifiedthat he was not informed of the contents of the order of protectionduring his conversations with various officers of the Aurora policedepartment. The defendant also testified that the officers nevertold him to move out of the residence at 1269 Nantucket. Wetherefore do not believe that the indictment misled the defendantin preparing his defense; nor do we believe that the defendantwould have prepared his defense any differently had the indictmentalleged that he had been orally informed as to the contents of theorder of protection. See People v. Jones, 245 Ill. App. 3d 674,677 (1993).

Neither has the defendant been exposed to the possibility ofdouble jeopardy. The indictment clearly identifies the chargedoffense and the date the offense was alleged to have occurred. Ifany future prosecution were attempted, prior prosecution on thesame facts could be proved by resort to the record. See People v.Johnson, 65 Ill. 2d 332, 339 (1976). We therefore reject thedefendant's assertions that he has been prejudiced by the variancebetween the indictment and the proof adduced at trial.

In so holding, we note that the defendant's reliance uponPeople v. Daniels, 75 Ill. App. 3d 35 (1979), is unpersuasive. InDaniels, not only was there a variance between the charginginstrument and the evidence adduced at trial, but the reviewingcourt also found that the evidence adduced at trial wascircumstantial and insufficient to prove the defendant guilty ofthe charged offense beyond a reasonable doubt. Daniels, 75 Ill.App. 3d at 40-41. Nor are we persuaded by the defendant's relianceupon People v. Bueno, 35 Ill. 2d 545 (1966), as the analysiscontained therein has not been followed by other Illinois courts. See People v. Rothermel, 88 Ill. 2d 541, 547 (1982); Williams, 299Ill. App. 3d at 151.

The defendant's final contention on appeal is that thestatutory penalties prescribed within the offense of violating anorder of protection are unconstitutionally vague. The defendantargues that the statute creates multiple and conflicting penaltiesfor the same crime. The statutory provisions in question provideas follows:

"Violation of an order of protection *** is a Class Amisdemeanor. Violation of an order protection *** is a Class4 felony if the defendant has any prior conviction under this Code for domestic battery (Section 12--3.2) or violation of anorder of protection (Section 12--30). The court shall imposea minimum penalty of 24 hours imprisonment for defendant'ssecond or subsequent violation of any order of protection;unless the court explicitly finds that an increased penalty orsuch period of imprisonment is manifestly unjust." 720 ILCS5/12--30(d) (West 1998).

The defendant argues that the statutory language making asecond or subsequent violation of an order of protection a Class 4felony is inconsistent with the statutory language providing thata minimum penalty of 24 hours imprisonment shall be imposed for asecond or subsequent violation. The defendant notes that thesentencing range for a Class 4 felony is a term of imprisonment"not less than 1 year and not more than 3 years." 730 ILCS 5/5--8--1(a)(7) (West 1998). The defendant therefore argues that thestatute is vague and lacks a definite standard as to whether theminimum penalty for a subsequent offense is one year's imprisonmentor 24 hours' imprisonment or less than 24 hours' imprisonment ifthe trial court find that 24 hours' imprisonment is unjust. Insupport of his vagueness argument, the defendant also notes that,although the notice requirements contained in section 112A--21(c)of the Code of Criminal Procedure of 1963 (725 ILCS 5/112A--21(c)(West 1998)) require that an order of protection shallconspicuously warn respondents that a knowing violation of theorder is a Class A misdemeanor, it does not require that therespondent be warned that a second violation of an order ofprotection is a Class 4 felony.

Due process requires that a statute not be so vague thatpersons of common intelligence must necessarily guess at itsmeaning or application. People v. Hickman, 163 Ill. 2d 250, 256(1994). A sentencing provision may be void for vagueness if itdoes not state with sufficient clarity the consequences ofviolating a given criminal statute. Hickman, 163 Ill. 2d at 256. However, mathematical certainty in language is not required, and astatute satisfies due process as long as (1) the statute'sprohibitions are sufficiently definite, when measured by commonunderstanding and practices, to give a person of ordinaryintelligence fair warning as to what conduct is prohibited; and (2)the statute marks boundaries sufficiently distinct for judges andjuries to administer the law fairly in accordance with the intentof the legislature. Hickman, 163 Ill. 2d at 256-57.

Further, a court presumes that a statute is constitutional. Accordingly, the party challenging the statute has the burden ofclearly establishing its constitutional infirmity. Hickman, 163Ill. 2d at 257. A court will construe a statute as constitutionalif it can be done reasonably. Hickman, 163 Ill. 2d at 257. Thisprinciple also applies to a sentencing provision. Hickman, 163Ill. 2d at 257.

Contrary to the defendant's assertions, we believe thatsection 12--30(d) of the Code provides fair warning of the possiblepenalties for violating an order of protection. The statuteplainly states that a violation of an order of protectionconstitutes a Class A misdemeanor unless the defendant has a priorconviction for violating an order of protection or domesticbattery, in which case the violation is a Class 4 felony. 720 ILCS5/12--30(d) (West 1998). A trial judge is required to impose aminimum of 24 hours' imprisonment upon a second or subsequentviolation of an order of protection, provided that such a penaltyis not unjust. 720 ILCS 5/12--30(d) (West 1998).

Such a sentencing scheme is not inconsistent. The defendantfails to recognize that a defendant who is convicted of a Class 4felony does not face mandatory imprisonment; probation is also asentencing possibility. 730 ILCS 5/5--5--3(b)(1) (West 1998). Thestatute therefore requires that the minimum penalty for a second orsubsequent violation of an order of protection be 24 hours'imprisonment, unless the trial court finds that such an impositionwould be unjust. We do not find this statutory language vague orambiguous. Rather, we believe that the sentencing provision stateswith sufficient clarity the consequences of violating section 12--30.

Nor do we believe that the notice requirements contained insection 112A--21(c) of the Code of Criminal Procedure of 1963 areinconsistent with this sentencing scheme. Under theserequirements, the respondent is accurately advised that a violationof an order of protection is a Class A misdemeanor. 725 ILCS5/112A--21(c) (West 1998). Although the respondent is not informedof the possibility of enhanced penalties due to prior convictions,we are aware of no authority that would require such anotification. Additionally, we note that the defendant in theinstant case cannot argue that he was misled by the contents of theorder of protection, as he never received a copy of the order priorto his arrest. For all of these reasons, we reject the defendant'sconstitutional argument.

For the foregoing reasons, the judgment of the circuit courtof Kane County is affirmed.

Affirmed.

COLWELL and RAPP, JJ., concur.