People v. Spencer

Case Date: 06/19/2000
Court: 2nd District Appellate
Docket No: 2-99-0379

19 June 2000

No. 2--99--0379
IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


THE PEOPLE OF THE STATE			)	Appeal from the Circuit CourtOF ILLINOIS,				)	of Du Page County.					)	Plaintiff-Appellee,		)	                                	)                   v.					)	No. 98--DV--1577					)DARIUS SPENCER,   			)	Honorable					)	Cary B. Pierce,   	Defendant-Appellant.		)	Judge, Presiding.


PRESIDING JUSTICE BOWMAN delivered the opinion of the court:



Defendant, Darius Spencer, was convicted following a benchtrial of telephone harassment (720 ILCS 135/1--1(2) (West 1998))and violation of an order of protection (720 ILCS 5/12--30(a) (West1998)). He appeals, contending that (1) he was not proved guiltyof either offense beyond a reasonable doubt; (2) he did notknowingly waive his right to a jury trial; and (3) under the one-act-one-crime rule, he cannot be convicted of both telephoneharassment and violation of an order of protection.

On August 19, 1998, Apryl Lagasca answered the telephone ather mother's home in Lisle. A voice, which she recognized asdefendant's, asked if Apryl was home. When Lagasca answered thatshe was not home, the caller said, "Apryl, I know it's you." Lagasca became frightened and hung up the phone.

Lagasca testified that she and defendant had dated in 1995 and1996, while both were in high school. The relationship apparently ended, because in January 1996 defendant came to Lagasca'sboyfriend's house and screamed for her to come outside. In June1997, she obtained an emergency order of protection againstdefendant. On June 18, 1997, she obtained a plenary order ofprotection that was to be effective for two years. On July 4,1997, defendant saw Lagasca with her boyfriend and startedscreaming at them. Lagasca had not seen defendant since thatincident. Defendant testified that he began dating Lagasca inDecember 1994. From their relationship, they have one child.

Lagasca testified that in August 1996 she had a fight with herparents and briefly moved out of their house. She called defendantand his father helped her find an apartment. Although defendant'sname was not on the lease, he "might have been" there at times. Lagasca testified that she and defendant were "not exactly"boyfriend and girlfriend at that time, but when asked if they werefriends, she replied, "We talked, yes."

Lagasca also called defendant and arranged to meet him atYorktown Mall in order to serve him with the order of protection. Lagasca paged defendant and he called her back. Lagasca had afriend serve defendant with the order while she was standingnearby.

Based on this evidence, the trial court found defendant guiltyof telephone harassment and violation of an order of protection. The court placed defendant on conditional discharge for one year. Defendant filed a timely notice of appeal.

Defendant first contends that he was not proved guilty ofeither offense beyond a reasonable doubt. Where the sufficiency ofthe evidence is challenged on appeal, the relevant question iswhether, after viewing all the evidence in a light most favorableto the prosecution, a rational trier of fact could have found allthe elements of the offense beyond a reasonable doubt. People v.Collins, 106 Ill. 2d 237, 261 (1985). We will not reverse acriminal conviction unless the evidence is so improbable orunsatisfactory that it creates a reasonable doubt of defendant'sguilt. People v. Brackett, 288 Ill. App. 3d 12, 19 (1997). We maynot substitute our judgment for that of the trier of fact onquestions involving the weight of the evidence, the credibility ofthe witnesses, or the resolution of conflicting testimony. Peoplev. Campbell, 146 Ill. 2d 363, 375 (1992).

Defendant was charged under a section of the telephoneharassment statute that prohibits making a telephone call "with theintent to abuse, threaten or harass any person." 720 ILCS 135/1--1(2) (West 1998). The complaint charging defendant with violatingan order of protection alleges that he violated such an order "inthat said defendant harassed Apryl Lagasca by telephone." Forpurposes of an order of protection, "harassment" is defined as"knowing conduct which is not necessary to accomplish a purposethat is reasonable under the circumstances; would cause areasonable person emotional distress; and does cause emotionaldistress to the petitioner." 750 ILCS 60/103(7) (West 1998); see725 ILCS 5/112A--3(4) (West 1998).

The above-quoted definition governs prosecutions for violatingan order of protection. People v. Wett, 308 Ill. App. 3d 729, 732(1999). Although the telephone harassment statute does notspecifically incorporate this definition of harassment, given thesimilar descriptions of the offenses, this seems to be a workabledefinition for that offense as well and we apply it here.

There is no evidence here that defendant's call was not for areasonable purpose. In fact, there is no evidence at all of thepurpose of defendant's call. Lagasca hung up before defendantstated his reason for calling. In People v. Karich, 293 Ill. App.3d 135 (1997), the State failed to prove beyond a reasonable doubtthe content of defendant's repeated calls. As a result, the Statecould not establish that the calls did not have a reasonablepurpose. Karich, 293 Ill. App. 3d at 138-39.

In this case, none of the usual indicia of harassment waspresent. Defendant did not call repeatedly. He did not swear atthe complainant, and he did not threaten her. We cannot find anintent to harass based on a single phone call, the purpose of whichwas never established.

The State contends that the phone call must be viewed in thecontext of defendant's and Lagasca's relationship, in whichdefendant had previously screamed at Lagasca and threatened to killher, causing her to obtain an order of protection against him. While this history explains Lagasca's reaction to the call, it doesnot establish that the same conduct would cause distress to areasonable person or that defendant's call lacked a reasonablepurpose. We note that Lagasca had apparently not had any contactwith defendant for more than one year before the call in question. Moreover, there was evidence that she contacted defendant on atleast two occasions after the initial incident in which he screamedat her. The defendant's prior conduct toward the victim, whilepotentially relevant, is simply too remote and attenuated tosupport the inference that defendant's call was part of a campaignof harassment.

Although the order of protection is not included in the recordon appeal, the State asserts that it prohibited all contact betweendefendant and the complainant. On the page of the record cited assupport for this assertion, defendant is asked if the orderprohibited all contact with his son, who lived with Lagasca. Defendant responded, "I guess." There is no reference to Lagasca. Even if the order barred all contact with Lagasca, the complaintalleges that defendant violated the order by "harassing" thealleged victim. The State refers to the order of protection onlyto argue that defendant's call could not have had a legitimatepurpose (an argument at least implicitly rejected in Karich) anddoes not appear to argue that defendant could be convicted underthe complaint for merely contacting Lagasca.

Because the State failed to prove that defendant's call lackeda reasonable purpose, defendant was not proved guilty beyond areasonable doubt of telephone harassment or violation of an orderof protection. Based on our resolution of this issue, we need notaddress defendant's remaining arguments.

The judgment of the circuit court of Du Page County isreversed.

Reversed.

INGLIS and THOMAS, JJ., concur.