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Docket No. 96784-Agenda 6-May 2004.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
TREMAIN FUNCHES, Appellee.

Opinion filed October 7, 2004.
 

JUSTICE FREEMAN delivered the opinion of the court:

Section 4-103.2(b) of the Illinois Vehicle Code (Code)incorporates an inference that a person who exercises the exclusive,unexplained possession of a stolen vehicle has knowledge that thevehicle is stolen. 625 ILCS 5/4-103.2(b) (West 2002) (incorporating625 ILCS 5/4-103(a)(1) (West 2002)). In People v. Greco, 204 Ill.2d 400 (2003), we held that application of this inference to "specialmobile equipment," as defined by the Code, violated due process and,therefore, was unconstitutional. Greco, 204 Ill. 2d at 411-15.However, we "express[ed] no opinion with regard to theconstitutionality of the permissive inference in the context of othervehicles as defined under the Code." Greco, 204 Ill. 2d at 414.

In this case, the proper question presented for review is whetherthis inference violates due process as applied to this particulardefendant in the context of his charged crime. We hold that defendanthas not established a constitutional violation.

BACKGROUND

Sworn statements of two Decatur police officers contain thefollowing allegations. On the afternoon of January 2, 2003, defendant,Tremain Funches (a/k/a Tremain Parker), entered a drug storepurportedly to make a purchase. Katrina Fisher, a sales clerk, went tothe rear of the store to get help. Defendant walked behind the counter,opened a drawer, and took a post office deposit bag that containedover $300 in cash. Scott Finch, a pharmacist, chased defendant fromthe store and maintained pursuit.

In flight, defendant encountered an automobile with the enginerunning parked in a driveway. Defendant entered the automobile,backed out of the driveway, and sped forward. Rose Miller, the ownerof the automobile, did not give anyone permission to take her vehicle.Driving the car, defendant struck Finch, who fell onto the hood of thecar and rolled off.

Decatur police officers were alerted to the theft of the money andof the car. Police were also given a description of the car with itslicense plate number. En route to the drug store, police officersobserved the stolen automobile. They activated their lights and sirens,but defendant refused to stop. Defendant engaged in a dangerous,high-speed flight from police. He finally wrecked the car at the end ofa dead-end street. Defendant was taken into custody. The deposit bagwas found with defendant. Finch and another witness, Seanna Little,were transported to the arrest scene, where they identified defendantas the person who stole the deposit bag and the car.

A four-count information was brought against defendant in thecircuit court of Macon County. Defendant was charged with onecount each of theft of the money and of the automobile (720 ILCS5/16-1(a)(1)(A) (West 2002)); one count of attempted first degreemurder of Finch (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2002)); andone count of aggravated unlawful failure to obey a peace officer'sorder to stop (625 ILCS 5/4-103.2(a)(7)(A) (West 2002)).

Section 4-103.2(a)(7)(A) of the Code establishes a violation fora person "who is the driver or operator of a vehicle and is not entitledto the possession of that vehicle and who knows the vehicle is stolenor converted," who has been given a signal by a peace officer directingthe driver to stop the vehicle, to wilfully fail or refuse to obey suchdirection, increase speed, extinguish the vehicle's lights, or otherwiseflee or attempt to elude the officer. (Emphasis added.) 625 ILCS5/4-103.2(a)(7)(A) (West 2002). Section 4-103.2(b) incorporates apermissive inference contained in section 4-103(a)(1). Pursuant tothat section, it may be inferred that a person who exercises theexclusive unexplained possession of a stolen vehicle has knowledgethat the vehicle is stolen, regardless of whether the date when thevehicle was stolen is recent or remote. 625 ILCS 5/4-103.2(a)(1)(West 2002).

Prior to trial, defendant filed an amended motion to dismiss countI of the information, i.e., the charge of aggravated failure to obey thepolice order to stop. Defendant contended that section4-103.2(a)(7)(A) of the Code is unconstitutional "in that it violatesthe proportionate penalties clause of the Constitution of the State ofIllinois, and the equal protection, due process and cruel and unusualpunishment clauses of the State and Federal constitutions." Defendantcited other Code sections that establish offenses for failing to obey apeace officer's signal to stop. See 625 ILCS 5/11-204, 11-204.1(West 2002). Defendant argued that section 4-103.2(a)(7)(A) violatesdue process because the circumstance that a vehicle was stolen is nota rational basis to establish a separate antiflight offense. Defendantalso argued that section 4-103.2(a)(7)(A) is unconstitutionallydisproportionate because it punishes the failure to stop while drivinga stolen vehicle more severely than the failure to stop under moredangerous conditions, but while driving a vehicle that is not stolen.

The circuit court mailed to the parties the following record sheetentry:

"1. In Count I, the Defendant is charged with a violationof 625 ILCS 5/4-103.2(a)(7)(A).

2. Subsection (b) of that statute expressly provides that theinference set forth in 625 ILCS 5/4-103(a)(1) shall apply tothe offenses set out in subsection (a) of 625 ILCS 5/4-103.2.

3. The Defendant has standing because he is in immediatedanger of being subjected to the permissive inference.

4. The permissive inference violates due process byremoving the requirement that a vehicle be recently stolen inorder for possession of it to give rise to an inference that thepossessor knows that the vehicle was stolen. See PEOPLE V.HOUSBY, 84 Ill. 2d 420.

5. The statute under which the Defendant has beencharged in Count I is unconstitutional.

For these reasons, the Amended Motion to Dismiss CountI of the Information is allowed. Count I is dismissed."

The State filed a motion to reconsider, stating "[t]hat People v.Housby, 84 Ill. 2d 415, doesn't appear to address the issues that werepresented in the defendant's Amended Motion to Dismiss."

At the hearing on the State's motion to reconsider, the circuitcourt allowed defendant to file a second amended motion to dismisscount I, which included an additional allegation reflecting the circuitcourt's finding of a due process violation. The circuit court denied theState's motion to reconsider.

The State appeals directly to this court. 134 Ill. 2d R. 603.Additional pertinent background will be discussed in the context ofour analysis of the issues. We now reverse the order of the circuitcourt and remand the cause to that court for further proceedings.

ANALYSIS

All statutes are presumed to be constitutional. The partychallenging the constitutionality of a statute bears the burden ofrebutting this presumption and clearly establishing a constitutionalviolation. If reasonably possible, a court must construe a statute so asto affirm the statute's constitutionality and validity. Greco, 204 Ill. 2dat 406; In re R.C., 195 Ill. 2d 291, 296 (2001). As the issue is one oflaw, this court reviews de novo any decision holding that a statute isunconstitutional. R.C., 195 Ill. 2d at 296.

In this case, the circuit court, sua sponte, declared that section4-103.2(b) of the Code, incorporating section 4-103(a)(1), isunconstitutional on its face. The State assigns error to the circuitcourt's finding of facial unconstitutionality and contends that section4-103.2(b) does not violate due process as applied to this particulardefendant.

In this case, the circuit court concluded, sua sponte, that section4-103.2(b), incorporating section 4-103(a)(1), is faciallyunconstitutional based on abstract legal reasoning and withoutconsideration of any evidence. Whether the circuit court could assessthe statute's validity in this manner depends on the type of evidentiarydevice involved here. See County Court v. Allen, 442 U.S. 140, 155-56, 60 L. Ed. 2d 777, 791, 99 S. Ct. 2213, 2223-24 (1979).

This case involves an evidentiary inference. "While the wordsinference and presumption are sometimes used interchangeably, theyare by no means the same thing." (Emphases in original.) M. Graham,Cleary & Graham's Handbook of Illinois Evidence