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No. 3--01--0138

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

The defendant, Delrico J. Nelson, was charged with theft byreceiving stolen property (720 ILCS 5/16--1(a)(4)(A) (West 2000)). The jury found him guilty and he was sentenced to five years'imprisonment. On appeal, the defendant challenges section 16--1(a)(4)(A) of the theft statute as unconstitutionally vague. Weaffirm.

FACTS

At trial, Trevor Hiel testified that he worked in his parents'John Deere dealership in Macomb. On August 14, 2000, Trevor wentinto the dealership office at about 6:15 a.m. He noticed that alaptop computer and a digital camera were missing. The batteriesfor both items and the battery charger for the camera had not beentaken. He saw that the back door was unlocked, and a rear windowwas broken. After the police came to their office, the Hielscalled the store where they had purchased the camera and told thestore manager that the camera had been stolen.

The store manager testified that on the morning of August 15,2000, the defendant came into the store. The defendant inquiredabout how to connect a particular model of digital camera to acomputer. The camera he asked about was the same model as thecamera stolen from the Hiels' office.

The defendant called the store later that morning andascertained that the store had a battery charger for the same modelof camera. The defendant asked if he could bring the battery tothe store to make sure it matched the charger. The manager repliedthat he could and then called the police.

The defendant's girlfriend, Megan Bennett, testified that shewent to the camera store and purchased a battery charger for thecamera at the defendant's request. A police officer stated thatafter the store manager called, he went to the camera store wherehe encountered Bennett.

Bennett told the officer that the digital camera and laptopcomputer were at the defendant's residence. Several officers thenwent to the defendant's home. One officer knocked on the door ofthe residence while other officers watched the sides and back ofthe house. After no one answered, one of the officers went acrossthe street to the landlord's property to ask who lived in thehouse. Another officer then saw a man come out of the bedroomwindow, "hit the ground and crouch[] down and walk[] between thebushes and the house." The officer took the defendant intocustody.

A police officer advised the defendant of his Miranda rights. He told the defendant that he had spoken to Bennett about a laptopand a camera stolen in a burglary, which the officer believed werein the house. The defendant led him to the room where the itemswere located.

At the police station, the defendant said that on the eveningof August 13, 2000, he had gone to the Pace nightclub. Thedefendant told the police that after the Pace closed, he went tothe home of someone named Mindy. He left Mindy's home at about 4a.m. on August 14, 2000. As he was leaving, he heard Mark Woolamyell at him. Woolam asked the defendant if he wanted to buy alaptop computer and a digital camera.

The defendant purchased the items for a total of $380. Trevortestified that the value of the camera at the time it was stolenwas between $400 and $499, and the value of the computer was about$900. The camera store manager said that the value of the camerawas between $350 and $400. An expert testified that the value ofthe computer was between $900 and $1,100.

The defendant told the officers that Woolam said the itemswere not stolen. When the defendant asked Woolam for a receipt,Woolam refused, saying that he did not want to put his name onanything.

Both the charging instrument and the jury instructions statedthat the defendant was accused of theft by knowingly obtainingcontrol over property under such circumstances as would reasonablyinduce him to believe that the property was stolen.

At the conclusion of the trial, the jury found the defendantguilty.

ANALYSIS

The defendant argues that the language in section16-1(a)(4)(A) of the theft statute, prohibiting a person fromknowingly obtaining control over stolen property "under suchcircumstances as would reasonably induce him to believe that theproperty was stolen," is unconstitutionally vague under theFourteenth Amendment Due Process Clause.

We begin our analysis with the presumption that a statute isconstitutional. When a statute does not implicate first amendmentrights, it is facially unconstitutional only if it would not bevalid under any set of circumstances. People v. Izzo, 195 Ill. 2d109, 745 N.E.2d 548 (2001). The constitutionality of a statute isa question of law, which we review de novo. People v. Williams,329 Ill. App. 3d 846, 769 N.E.2d 518 (2002).

A criminal statute may be vague and, therefore, violate adefendant's due process rights, if it (1) fails to provide the typeof notice that would enable a person of ordinary intelligence tounderstand what conduct is prohibited, or (2) authorizes orencourages arbitrary and discriminatory enforcement by the police. City of Chicago v. Morales, 527 U.S. 41, 144 L. Ed. 2d 67, 119 S.Ct. 1849 (1999); Kolender v. Lawson, 461 U.S. 352, 75 L. Ed. 2d903, 103 S. Ct. 1855 (1983). The defendant submits that thestatutory language in question is unconstitutional under bothprongs of the Supreme Court's test for vagueness.

A. Notice of Prohibited Conduct

The defendant contends that the statutory language in questionis too vague because it does not give a person of ordinaryintelligence sufficient notice of what conduct is prohibited.

Section 16--1(a)(4)(A) of the Illinois theft statute states,

"(a) A person commits theft when he knowingly:

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(4) Obtains control over stolen property knowing theproperty to have been stolen or under such circumstancesas would reasonably induce him to believe that theproperty was stolen ***

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(A) Intends to deprive the owner permanently of the useor benefit of the property." (Emphasis added.) 720 ILCS5/16--1(a)(4)(A) (West 2000).

The defendant was charged under the statute with obtainingpossession "under such circumstances as would reasonably induce himto believe that the property was stolen." This language gave thedefendant sufficient notice that his conduct was prohibited. Here, Woolam yelled at the defendant on the street at 4 a.m. and thenasked if he would be interested in purchasing two electronic items. The defendant purchased the items for $380. The testimony at trialestablished that the value of these items was at least $1,250. When the defendant asked Woolam for a receipt, Woolam said that hedid not want to put his name on anything.

Based on these facts, we believe that a person of ordinaryintelligence presented with the computer and camera under thesecircumstances would reasonably be induced to believe that themerchandise had been stolen.

The defendant relies on the Colorado Supreme Court case ofPeople v. Johnson, 193 Colo. 199, 564 P.2d 116 (1977) to supporthis vagueness argument. In Johnson, the court held that similarlanguage in the Colorado theft statute was unconstitutional becauseit was overbroad. The court also approved a "subjective," ratherthan an "objective" test for the mental state at issue in theColorado statute.

Since defendant in this case argues the statute is too vague,not overbroad, Johnson cannot be considered persuasive authority. Furthermore, Illinois courts have consistently used an objectivetest for the mens rea element of theft by receiving stolenproperty. See, for example, People v. Josephine, 165 Ill. App. 3d762, 766, 520 N.E.2d 745, 748 (1987) (referring to an objective"reasonable mind" test); People v. Baxa, 50 Ill. 2d 111, 114, 277N.E.2d 876, 878 (1971) (employing an objective "reasonable man"standard).

The defendant also asserts that the statutory language inquestion gives insufficient notice of prohibited conduct undercertain hypothetical circumstances. However, because the statutorylanguage does not involve first amendment rights, we need notconsider whether the statute is vague under hypotheticalcircumstances. Rather, we must determine whether the statutorylanguage gives notice to a person of ordinary intelligence underthe circumstances before us. See Izzo, 195 Ill. 2d 109, 745 N.E.2d548.

B. Arbitrary and Discriminatory Enforcement

The defendant also contends that the statutory language inquestion permits or invites arbitrary and discriminatoryenforcement by the police.

When a criminal statute fails to provide standards regulatingthe exercise of its discretion, it permits or encourages arbitraryand discriminatory enforcement by the police. Papachristou v. Cityof Jacksonville, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839(1972). The issue is whether the statute provided sufficientstandards under the facts of this case. See Izzo, 195 Ill.2d 109,745 N.E.2d 548.

We believe that the statutory language in question providedthe police with a sufficient standard to regulate their discretion. The police had to seek a person who knowingly received stolenproperty under a carefully controlled standard, that is,circumstances that would reasonably induce a person of ordinaryintelligence to believe that the property was stolen.

In this case, the police were told that expensive electronicequipment had been stolen from an office. They learned from thedefendant's girlfriend that the stolen items might be at thedefendant's residence. When the police went to his house andknocked on the door, an officer then saw a man come out of thebedroom window, crouch down and walk between the bushes and thehouse. After being confronted by his girlfriend's statement, thedefendant led the police to the stolen items. The defendant toldthe police how he purchased the items. We have already found thatthese circumstances would induce a reasonable person of ordinaryintelligence to believe that the items were stolen property. Applying this standard, we hold that the statute did not permit orinvite the police to arbitrarily and indiscriminately enforce atheft by receiving stolen property.

CONCLUSION

The language in section 16--1(a)(4)(A) of the Illinois theftstatute, "under such circumstances as would reasonably induce himto believe that the property was stolen," is not unconstitutionallyvoid for vagueness.

The judgment of the McDonough County circuit court isaffirmed.

Affirmed.

HOLDRIDGE, J., and McDADE, P.J., concur.