Find Legal Information

Docket No. 89940-Agenda 34-May 2001.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. PETER M. GRECO,Appellee.
Opinion filed May 8, 2003.

JUSTICE KILBRIDE delivered the opinion of the court:

At issue in this case is the constitutionality of sections 1-191and 4-103.2(b) of the Illinois Vehicle Code (Code) (625 ILCS5/1-191, 4-103.2(b) (West 2000)). Defendant was charged withone count of theft (720 ILCS 5/16-1(a)(1)(A) (West 2000)), twocounts of aggravated unlawful possession of special mobileequipment (625 ILCS 5/4-103.2(a)(5) (West 2000)), and onecount of unlawful defacing of a manufacturer's identificationnumber (625 ILCS 5/4-103(a)(2) (West 2000)). In dismissing thelatter three counts, the circuit court of Du Page County foundthat the definition of "[s]pecial mobile equipment" withinsection 1-191 (625 ILCS 5/1-191 (West 2000)) isunconstitutionally vague. The court also found that thepermissive inference in section 4-103.2(b) (625 ILCS5/4-103.2(b) (West 2000)) violates the doctrine of separation ofpowers. The State appeals the circuit court's ruling directly tothis court pursuant to Supreme Court Rule 302(a) (134 Ill. 2d R.302(a)). For the following reasons, we affirm in part and reversein part the judgment of the circuit court, and hold that section4-103.2(b) violates due process and that the circuit courtimproperly sustained defendant's facial challenge of section1-191.

I. STATUTORY AND PROCEDURAL BACKGROUND

Due to the procedural posture of this case, the record belowis severely limited. Because this was a facial challenge of thedisputed provisions of the statute, the facts surroundingdefendant's indictment were not adduced before the trial court.

Defendant was charged under section 4-103.2 with possessionof stolen special mobile equipment. In relevant part, that sectionstates:

"(a) It is a violation of this Chapter for:

* * *

(5) a person not entitled to the possession of any ***special mobile equipment *** to *** possess *** thevehicle or vehicle part described in this paragraphknowing it is stolen or converted[.]" 625 ILCS5/4-103.2(a)(5) (West 2000).

Subsection (b) of section 4-103.2 invokes a permissiveinference contained in section 4-103(a)(1) of the Code. Under thatprovision, it may be inferred that a person who exercises theexclusive unexplained possession of a stolen vehicle hasknowledge that the vehicle is stolen. 625 ILCS 5/4-103(a)(1)(West 2000). Moreover, the provision explains that the permissiveinference may be applied whether the date when the vehicle wasstolen is recent or remote. 625 ILCS 5/4-103(a)(1) (West 2000).The General Assembly based the permissive inference, in part,upon the finding that:

"the acquisition and disposition of vehicles and theiressential parts are strictly controlled by law and that suchacquisitions and dispositions are reflected by documentsof title, uniform invoices, rental contracts, leasingagreements and bills of sale." 625 ILCS 5/4-103(a)(1)(West 2000).

Under the Code, special mobile equipment is defined asfollows:

"Every vehicle not designed or used primarily for thetransportation of persons or property and only incidentallyoperated or moved over a highway, including but notlimited to: street sweepers, ditch digging apparatus, wellboring apparatus and road construction and maintenancemachinery such as asphalt spreaders, bituminous mixers,bucket loaders, tractors other than truck tractors, ditchers,levelling graders, finishing machines, motor graders, roadrollers, scarifiers, earth moving carryalls and scrapers,power shovels and drag lines, and self-propelled cranesand earth moving equipment. The term does not includehouse trailers, dump trucks, truck mounted transit mixers,cranes or shovels, or other vehicles designed for thetransportation of persons or property to which machineryhas been attached." 625 ILCS 5/1-191 (West 2000).

The indictment provided that defendant's aggravated unlawfulpossession of special mobile equipment charges stemmed from hispossession of one "Case Wheeled Loader Model 1845C." Themachinery referred to by the indictment is commonly known as a"wheel loader," a "uni-loader," or a "skid-steer loader."

Defendant moved to dismiss the indictment, arguing amongother things that: (1) the permissive inference incorporated intosection 4-103.2(b) violates due process and the separation ofpowers doctrine; and (2) the definition of "special mobileequipment" contained in section 1-191 is unconstitutionallyvague. The court granted defendant's motion, and the State nowappeals under Supreme Court Rule 302(a) (134 Ill. 2d R. 302(a)).

II. ANALYSIS

All statutes are presumed to be constitutional, and the burdenof rebutting that presumption is on the party challenging thevalidity of the statute to demonstrate clearly a constitutionalviolation. People v. Sypien, 198 Ill. 2d 334, 338 (2001). Ifreasonably possible, a statute must be construed so as to affirm itsconstitutionality and validity. People v. Fuller, 187 Ill. 2d 1, 10(1999). In this case the circuit court declared that sections 1-191and 4-103.2(b) are facially unconstitutional. Such challenges tolegislative acts are the most difficult challenges to mount. In reR.C., 195 Ill. 2d 291, 297 (2001), quoting In re C.E., 161 Ill. 2d200, 210-11 (1994), quoting United States v. Salerno, 481 U.S.739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987)." '[T]he challenger must establish that no set of circumstancesexists under which the Act would be valid.' " R.C., 195 Ill. 2d at297, quoting In re C.E., 161 Ill. 2d 200, 210-11 (1994), quotingUnited States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697,707, 107 S. Ct. 2095, 2100 (1987). Moreover, that the statutemight operate unconstitutionally under some conceivable set ofcircumstances is insufficient to render it wholly invalid, as wehave not recognized an overbreadth doctrine outside the limitedcontext of the first amendment. C.E., 161 Ill. 2d at 210-11, quotingUnited States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697,707, 107 S. Ct. 2095, 2100 (1987). We review de novo a circuitcourt's holding that a statute is unconstitutional. Sypien, 198 Ill. 2dat 338.

A. Section 4-103.2(b); Permissive Inference in Relation toSpecial Mobile Equipment

An inference or presumption is a legal device that eitherpermits or requires the fact finder to assume the existence of apresumed or ultimate fact based on certain predicate or basic facts.People v. Watts, 181 Ill. 2d 133, 141-42 (1998). While inferencesand presumptions play "a vital role in the expeditious resolutionof factual questions" (People v. Hester, 131 Ill. 2d 91, 98 (1989)),their use to prove an element of a crime may raise due processconcerns. Watts, 181 Ill. 2d at 143. The due process clause" 'protects the accused against conviction except upon proofbeyond a reasonable doubt of every fact necessary to constitute thecrime with which he is charged.' " People v. Jeffries, 164 Ill. 2d104, 114 (1995), quoting In re Winship, 397 U.S. 358, 364, 25 L.Ed. 2d 368, 375, 90 S. Ct. 1068, 1073 (1970). Thus, "the dueprocess clauses of the Fifth and Fourteenth Amendments set limitsupon the power of Congress or that of a state legislature to makethe proof of one fact or group of facts evidence of the existence ofthe ultimate fact on which guilt is predicated." Tot v. UnitedStates, 319 U.S. 463, 467, 87 L. Ed. 1519, 1524, 63 S. Ct. 1241,1245 (1943).

A permissive inference is one that simply allows, but does notrequire, the finder of fact to infer the existence of the ultimate orpresumed fact upon proof of the predicate fact, without placingany burden on the defendant. Watts, 181 Ill. 2d at 142. Insituations where there is some corroborating evidence of adefendant's guilt, the constitutionality of a permissive inferenceshould be judged under a "more likely than not" standard. Peoplev. Housby, 84 Ill. 2d 415, 425 (1981). Under this standard, thepermissive presumption will satisfy due process concerns if thepresumed fact is more likely than not to flow from the predicatefact. Housby, 84 Ill. 2d at 425. Where the permissive presumptionis the lone basis for a finding of guilt, however, the presumed factmust flow beyond a reasonable doubt from the proven, predicatefact. Housby, 84 Ill. 2d at 421.

As a threshold matter, the State argues that defendant lacksstanding to challenge the permissive inference borrowed bysection 4-103.2(b) from section 4-103(a)(1). The State contendsthat defendant lacks standing in that the permissive inferencewould not have been applied to him because he was charged withpossession of stolen special mobile equipment and not a stolenvehicle. According to the State, section 4-103(a)(1) solely appliesto vehicles and the acquisition of vehicles is controlled by law asreflected by legal documents, including titles, leasing agreements,and bills of sale. Conversely, special mobile equipment need notbe registered and can be transferred by oral contract. Thus, theState maintains the permissive inference of section 4-103.2(b) wasnot meant to be used in cases involving the possession of stolenspecial mobile equipment.

Defendant counters that the State has waived its standingargument by not requesting that the trial court make a ruling on theissue. In the alternative, defendant maintains that he has standingbecause he is charged with an offense under a statutory schemethat places him at risk of being subjected to the inference.Regardless of the State's announced position not to rely upon theinference, a trial court or the appellate court could rely upon thestatutory scheme in reaching a finding of guilt.

The doctrine of standing is intended to insure that issues areraised and argued only by those parties with a real interest in theoutcome of the controversy. Chicago Teachers Union, Local 1 v.Board of Education of the City of Chicago, 189 Ill. 2d 200, 206(2000). To have standing to challenge the constitutionality of astatute, a person must have suffered or be in immediate danger ofsuffering a direct injury as a result of enforcement of thechallenged statute. Messenger v. Edgar, 157 Ill. 2d 162, 171(1993). Standing is an element of justiciability, and it must bedefined on a case-by-case basis. In re Marriage of Rodriguez, 131Ill. 2d 273, 280 (1989).

We need not address defendant's arguments concerningwaiver because we agree with defendant that the statutory schemeplaces him in danger of being subjected to the permissiveinference. The State's arguments are belied by the plain languageof the Code. Section 4-103.2 is a provision of the Code relating toaggravated offenses that involve the sale, receipt and possessionof motor vehicles and other vehicles. 625 ILCS 5/4-103.2 (West2000). Defendant was charged pursuant to section 4-103.2(a)(5)of the Code with possession of "special mobile equipment ***knowing [that the special mobile equipment] is stolen orconverted." 625 ILCS 5/4-103.2(a)(5) (West 2000). Subsection(b) of section 4-103.2 expressly provides that the section4-103(a)(1) inference shall apply to the offenses set out insubsection (a) of section 4-103.2. That inference allows theunexplained possession of a stolen vehicle to be evidence that thepossessor knows that the vehicle is stolen whether the date whenthe vehicle was stolen is recent or remote. 625 ILCS 5/4-103(a)(1)(West 2000). Not only is special mobile equipment not exemptedfrom this permissive inference, it is also specifically included inparagraph (5) of subsection (a). Moreover, by its very title, theentirety of section 4-103.2 involves "vehicles." Thus, contrary tothe State's argument, it appears that the legislature intended toinclude special mobile equipment within the meaning of "vehicle"and intended the inference to be applicable in cases involving thepossession of special mobile equipment.

This conclusion is supported by the definition of "vehicle"contained in section 1-217 of the Code that contains no referenceto registration or transfer and sales requirements. In section 1-217,a vehicle is simply defined as:

"[e]very device, in, upon or by which any person orproperty is or may be transported or drawn upon ahighway, except devices moved by human power, devicesused exclusively upon stationary rails or tracks andsnowmobiles as defined in the Snowmobile Registrationand Safety Act." 625 ILCS 5/1-217 (West 2000).

Additionally, section 1-191 expressly uses the term "vehicle"when defining special mobile equipment. 625 ILCS 5/1-191 (West2000). In accord with this statutory language and the statutoryscheme developed by the legislature, we hold that defendant hassufficiently shown that he is in immediate danger of beingsubjected to the permissive inference of section 4-103.2(b) andthus has standing to challenge that section's constitutionality.

Nevertheless, the State cites People v. Rogers, 133 Ill. 2d 1(1989). In Rogers, the defendant was charged with childabduction. The indictment alleged that the defendant lured twochildren into his car for the purpose of committing the act ofcriminal sexual abuse. Defendant moved to dismiss theindictment, complaining that the section of the child abductionstatute (Ill. Rev. Stat. 1987, ch. 38, par. 10-5(b)(10), now 720ILCS 5/10-5(b)(10) (West 2000)) was unconstitutional in that itimpermissibly shifted the burden of proof onto a defendant byincluding a presumption that a person who lures a child into amotor vehicle without the parent's consent is doing so for "otherthan a lawful purpose." Ill. Rev. Stat. 1987, ch. 38, par.10-5(b)(10), now 720 ILCS 5/10-5(b)(10) (West 2000). Thedefendant also argued that the phrase "other than a lawfulpurpose" was unconstitutionally vague.

This court held that the defendant in Rogers lacked standingto challenge the inference because it was apparent that theinference would not be applied to him. Rogers, 133 Ill. 2d at 11.The indictment in that case specifically alleged an unlawfulpurpose, namely, criminal sexual abuse. Rogers, 133 Ill. 2d at 11.As a result, the State had to prove the elements of criminal sexualabuse at trial and it could not rely on the presumption. Rogers, 133Ill. 2d at 11.

The instant case is easily distinguished. Quite simply, there isno indication from the record that the State relinquished its abilityto rely on the permissive inference of section 4-103.2(b). Thus,unlike the Rogers defendant, this defendant has standing tochallenge the statute because he is in immediate danger ofsustaining some direct injury as a result of enforcement of thestatute. See People v. Ziltz, 98 Ill. 2d 38, 41 (1983).

We now turn to the merits of the parties' argumentsconcerning section 4-103.2(b). Defendant maintained below thatthe disputed provision violates the separation of powers doctrineand due process because it allows knowledge of the fact a vehiclewas stolen to be inferred from the unexplained possession of thatvehicle, regardless of when the vehicle was actually stolen. Thecircuit court held that the section violates separation of powers.Accordingly, before this court, defendant nominally confines hisargument to the separation of powers doctrine, maintaining thatthe permissive inference of section 4- 103.2(b) imposes upon thecourt a legal premise that contravenes the law of the state as setout in People v. Housby, 84 Ill. 2d 415 (1981).

Under Housby, a defendant's "recent and exclusivepossession of items stolen in a burglary, without reasonableexplanation, gives rise to an inference that the possession wasobtained by burglary." (Emphasis added.) Housby, 84 Ill. 2d at422. Thus, according to defendant, the legislature's expansion ofthis inference to eliminate the recency requirement is a usurpationof the judicial power.

The permissive inference at issue in this case, as announcedin Housby, is not of recent vintage. In Comfort v. People, 54 Ill.404 (1870), this court articulated the inference as follows:

"[W]hile [possession of property soon after it is stolen] isprima facie evidence of guilt, when it is explained byother evidence or the surrounding circumstances, [suchpossession] should not control. If the possession is recentafter the theft, and there are no attendant circumstances,or other evidence to rebut the presumption or to create areasonable doubt of guilt, the mere fact of such possessionwould warrant a conviction." (Emphasis added.) Comfort,54 Ill. at 407.

Accord Smith v. People, 103 Ill. 82, 85 (1882); Miller v. People,229 Ill. 376, 382-83 (1907).

In subsequent cases we refined the inference and identified therationale behind the recency requirement. For example, in Peoplev. Bullion, 299 Ill. 208 (1921), we explained that, in order for theinference to arise, the possession of the stolen property must be"soon after the crime," and it must be the exclusive possession ofthe individual charged. (Emphasis added.) Bullion, 299 Ill. at 212-13. We went on to clarify that:

"[t]he possession must be so recent as to indicate that thepossessor must have taken the property, and where it is soremote in time as to have given fair opportunity to thethief to dispose of the goods and to the defendant toacquire them honestly, possession is slight, if any,evidence of guilt ***." Bullion, 299 Ill. at 212-13, citingPeople v. Kubulis, 298 Ill. 523, 530 (1921).

Stated another way in Housby, the inference of guilt flowing fromthe recent and exclusive possession of items stolen in a burglaryis justified by the " 'inherently strong probability' " that theinference is accurate. Housby, 84 Ill. 2d at 422. Whether thepossession is recent is ordinarily a question for the jury, and nodefinite time can be fixed when, as a matter of law, possession isnot recent. People v. Pride, 16 Ill. 2d 82, 92 (1959); People v.Malin, 372 Ill. 422, 428 (1939); Kubulis, 298 Ill. at 530.

As stated earlier, generally speaking, in order for a permissiveinference to pass constitutional muster, there must be a rationalconnection between the fact proved and the fact presumed.Housby, 84 Ill. 2d at 420, citing Tot, 319 U.S. at 467, 87 L. Ed. at1524, 63 S. Ct. at 1245. The connection between a proved fact anda presumed fact in a criminal law context " 'must be regarded as"irrational" or "arbitrary," and hence unconstitutional, unless it canat least be said with substantial assurance that the presumed factis more likely than not to flow from the proved fact on which it ismade to depend.' " Housby, 84 Ill. 2d at 420-21, quoting Leary v.United States, 395 U.S. 6, 36, 23 L. Ed. 2d 57, 82, 89 S. Ct. 1532,1548 (1969).

Employing these standards, we cannot hold that thepermissive inference contained within section 4-103.2(b) isconstitutional as applied to special mobile equipment. Plainly put,there is no substantial assurance that a person with unexplainedpossession of a piece of special mobile equipment stolen, forexample 10 years ago, more likely than not has knowledge that thepiece of equipment was stolen. In other words, by removing therecency requirement of the permissive inference as currentlyembodied in section 4-103.2(b), the legislature has dramaticallyweakened the probability that the inference will be correct withregard to special mobile equipment. The State concedes that theacquisition and transfer of special mobile equipment is not subjectto the strict control and documentation requirements that attendsthe conveyance of other vehicles. We, accordingly, express noopinion with regard to the constitutionality of the permissiveinference in the context of other vehicles as defined under theCode. See, e.g., People v. Gentry, 192 Ill. App. 3d 774 (1989);People v. Ferguson, 204 Ill. App. 3d 146 (1990) (the permissiveinference did not violate due process in relation to a motorvehicle). The Gentry court specifically relied on the legislativefinding that the transfer of motor vehicles is strictly documentedand controlled by law. Gentry, 192 Ill. App. 3d at 778-79.

While the circuit court appears to have confined its holding tothe separation of powers doctrine, we may affirm its decision onany basis supported by the record. See Gunthorp v. Golan, 184 Ill.2d 432, 438 (1998). In this case, defendant argued before thecircuit court that section 4-103.2(b) violates due process andspecifically cited Tot and Leary. Moreover, before this court,defendant mainly relies on Housby, and we stated unequivocallyin Housby that our decision was "mandated by due processrequirements." Housby, 84 Ill. 2d at 423. Accordingly, defendanthas implicitly raised due process here. The trial court likewisebased its decision, in part, on due process concerns, finding:

"[There is] a great deal of difference between thepermissive inference to be drawn from *** possession ofrecently stolen property as opposed to possession ofproperty which may have been stolen at any time. Underthat scenario it would have been reasonable to havebought a part of a tractor at a flee [sic] market and becharged with a Class 4 felony. It's absurd, absolutelyabsurd that that type of inference would be allowableunder the statute."

We are ever mindful of our duty to construe a statute in a mannerthat upholds its validity and constitutionality whenever reasonablypossible. People v. Malchow, 193 Ill. 2d 413, 418 (2000). In thiscase, section 4-103.2(b) cannot be reasonably construed asconstitutional with regard to special mobile equipment because itviolates due process by removing the requirement that a piece ofspecial mobile equipment be recently stolen in order forpossession of the equipment to give rise to an inference that thepossessor knows that the equipment was stolen.

B. Section 1-191; Definition of Special Mobile Equipment

The State lastly challenges the trial court's ruling that thedefinition of "[s]pecial mobile equipment" contained in section1-191 is unconstitutional on its face because it is vague. 625 ILCS5/1-191 (West 2000). The State argues that the definition issufficiently clear to give a person of ordinary intelligence areasonable opportunity of knowing what devices are covered by it.The State therefore contends that the statute withstands avagueness challenge and that the trial court erred in rulingotherwise.

A vagueness challenge is a due process challenge, examiningwhether a statute " 'give[s] [a] person of ordinary intelligence areasonable opportunity to know what is prohibited, so that he mayact accordingly.' " Russell v. Department of Natural Resources,183 Ill. 2d 434, 442 (1998), quoting Grayned v. City of Rockford,408 U.S. 104, 108, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2294, 2298-99(1972). An act is not, however, unconstitutionally vague simplybecause one can conjure up a hypothetical dispute over themeaning of some of the act's terms. Gem Electronics ofMonmouth, Inc. v. Department of Revenue, 183 Ill. 2d 470, 481(1998).

When considering a vagueness challenge to a statute, a courtconsiders not only the language used, but also the legislativeobjective and the evil the statute is designed to remedy. R.C., 195Ill. 2d at 299. In cases such as the one at bar that do not involvefirst amendment freedoms, due process is satisfied if: (1) thestatute's prohibitions are sufficiently definite, when measured bycommon understanding and practices, to give a person of ordinaryintelligence fair warning as to what conduct is prohibited, and (2)the statute provides sufficiently definite standards for lawenforcement officers and triers of fact that its application does notdepend merely on their private conceptions. People v. Falbe, 189Ill. 2d 635, 640 (2000). Moreover, vagueness assaults on statutesthat do not involve first amendment freedoms are to be analyzedin light of the particular facts of the case at hand. R.C., 195 Ill. 2dat 299, quoting Russell, 183 Ill. 2d at 442. The first amendment isnot implicated in this case. Accordingly, defendant cannot contendthat section 1-191 is vague on its face if the provision clearlyapplies to him. R.C., 195 Ill. 2d at 299.

Section 1-191 begins by classifying special mobile equipmentas "[e]very vehicle not designed or used primarily for thetransportation of persons or property and only incidentallyoperated or moved over a highway." 625 ILCS 5/1-191 (West2000). The potential difficulty with this classification is that it canbe satisfied either by an individual vehicle's design or by its usage.Nevertheless, we cannot determine whether section 1-191 isunconstitutionally vague as applied to defendant, as there has beenno fact finding in this case. Nor could have the trial court done so.As a result, it was inappropriate for the trial court to declare thestatute vague. As this is a case not involving first amendmentfreedoms, the vagueness challenge could not properly have beenresolved except by application to the facts of the case. The trialcourt's determination that the statute was unconstitutionally vaguewas, therefore, premature and must be reversed. R.C., 195 Ill.2d at299-300. While it is possible that specific future applications" ' "may engender concrete problems of constitutional dimension,it will be time enough to consider any such problems when theyarise." ' " R.C., 195 Ill. 2d at 299-300, quoting Village of HoffmanEstates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 504, 71L. Ed. 2d 362, 375, 102 S. Ct. 1186, 1196 (1982), quoting JosephE. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 52, 16 L. Ed.2d 336, 348, 86 S. Ct. 1254, 1265 (1966).

III. CONCLUSION

For the above-stated reasons, we hold that section 4-103.2(b)of the Illinois Vehicle Code is constitutionally infirm as it appliesto special mobile equipment because it violates due process. Inaddition, we hold that the trial court improperly sustaineddefendant's facial challenge of section 1-191 of the Code onvagueness grounds. Further factual development is necessary todetermine if this section clearly applies to defendant. Thejudgment of the circuit court of Du Page County is, therefore,affirmed in part and reversed in part, and the cause is remanded forfurther proceedings consistent with this opinion.

Affirmed in part and reversed in part;

cause remanded.

JUSTICE RARICK took no part in the consideration ordecision of this case.

JUSTICE THOMAS, specially concurring:

I agree with the majority's conclusion that section 4-103.2(b)is unconstitutional as applied to special mobile equipment. I alsoagree with the majority's decision to reverse the trial court's rulingthat section 1-191 is unconstitutionally vague. However, Idisagree with the majority's assertion that it is too early to decidethis question. I would address the issue and hold that section1-191 is not unconstitutionally vague.

The majority asserts that it cannot determine if the statute isunconstitutionally vague because there has been no fact finding.The rule that the majority relies on to avoid the issue is thefollowing statement from In re R.C., 195 Ill. 2d 291, 299 (2001):"As this was a civil case, not involving the first amendment, thevagueness challenge could not properly have been resolved exceptby application to the facts of the case." Here, no more facts arerequired to decide the issue. We know from the indictment thatdefendant was charged with unlawfully possessing a "CaseWheeled Loader Model 1845C with Product IdentificationNumber JAF 0196424." In its response to defendant's motion todismiss, the State noted that in the construction industry thewheeled loader is commonly referred to as a "uni-loader," a "skidsteer," or a "Bob Cat."

Thus, when defendant was indicted, he was given noticeexactly what equipment he was charged with possessingunlawfully. In criminal cases, the most common time for adefendant to bring a vagueness challenge to a statute is afterindictment but before trial. As in this case, the argument isgenerally raised in the form of a motion to dismiss the indictmentor information. See, e.g., People v. Law, 202 Ill. 2d 578 (2002);People v. Izzo, 195 Ill. 2d 109 (2001); People v. Russell, 158 Ill.2d 23 (1994); People v. Capitol News, Inc., 137 Ill. 2d 162 (1990);People v. Ryan, 117 Ill. 2d 28 (1987). That is exactly whatdefendant did here.

It should be noted that section 1-191 is not the statutedefendant challenged as unconstitutionally vague in his originalmotion to dismiss the indictment. Rather, defendant argued thatsection 4-103.2(a)(5), the section defining the offense with whichdefendant was charged, was unconstitutionally vague. This sectionmakes it an offense to possess, receive, conceal, dispose of, ortransfer special mobile equipment, if the person doing so knowsit to be stolen or converted. Defendant argued that this section wasunconstitutionally vague because, "There is no definition found inthe Statute which clearly defines 'special mobile equipment.' "The State immediately responded that there was indeed such astatute, section 1-191, which gives a detailed and comprehensivedefinition of "special mobile equipment." Surprisingly, defendantdid not withdraw his vagueness argument. Rather, he simplytransferred the argument to section 1-191, despite the fact that thissection is a textbook example of a nonvague statute.

Section 1-191, set out in full in the majority opinion, definesspecial mobile equipment as "every vehicle⁽¹⁾ not designed or usedprimarily for the transportation of persons or property and onlyincidentally operated or moved over a highway." The statute thenlists several examples of vehicles that are special mobileequipment and several types of vehicles that are not. The vehiclesthat are listed are indeed ones that are not designed or usedprimarily for the transportation of persons or property and are onlyincidentally operated or moved over a highway. Likewise, thevehicles that are excluded are ones that are used primarily for thetransportation of persons or property. The statute is clear, detailed,and easy to follow, and no one could seriously contend that this isa vague statute.

The majority's position seems to be that we do not yet haveenough facts to determine if a wheeled loader is "special mobileequipment," and thus it is too early to decide the vaguenessquestion. Two problems are immediately apparent. First,defendant had the burden to demonstrate that the statute wasinvalid. Law, 202 Ill. 2d at 582. Defendant argued in hismemorandum of law in support of his motion to dismiss that "wehave no idea what a 'Bobcat' is or how it relates to the vaguedefinition of special mobile equipment." If this is true, thendefendant has failed in his burden to demonstrate that the statuteis unconstitutionally vague as applied to a wheeled loader.

Second, the majority's position rests on a subtle fallacy. Asthe majority correctly notes, a statute is void for vagueness only ifit fails to (1) "provide the kind of notice that would enable aperson of ordinary intelligence to understand what conduct isprohibited," or (2) "provide explicit standards for those who applyit, thus authorizing or even encouraging arbitrary anddiscriminatory enforcement." Law, 202 Ill. 2d at 582-83. Here, thestatute that "prohibits conduct" is not section 1-191 but section4-103.2(a)(5), which makes it an offense to possess, receive,conceal, dispose of, or transfer special mobile equipment, if theperson doing so knows it to be stolen or converted. Section 1-191merely provides a comprehensive definition of "special mobileequipment."

It is also a crime, however, for a person to exert control overstolen "property" in general if the person knows it to be stolen orobtains it under circumstances that would reasonably lead him tobelieve the property was stolen. See 720 ILCS 5/16-1(a) (West2000). It is also a felony to "receive, possess, conceal, sell,dispose, or transfer" a "vehicle" if the person knows that thevehicle is stolen or converted. See 625 ILCS 5/4-103(a)(1) (West2000). Thus, no matter what a "wheeled loader" is, it was unlawfulof defendant to possess it if he knew that it was stolen. Defendanthas not argued that he thought it would be permissible to possessa stolen wheeled loader if it was not considered "special mobileequipment." All that the designation of the property as "specialmobile equipment" does is change the class of the offense.Unlawful possession of stolen special mobile equipment is a Class1 felony (625 ILCS 5/4-103.2(c) (West 2000)), while unlawfulpossession of a stolen vehicle is a Class 2 felony (625 ILCS5/4-103(b) (West 2000)), and theft can be anywhere from a ClassA misdemeanor to a Class X felony, depending on what was stolenand how it was taken⁽²⁾ (720 ILCS 5/16-1(b) (West 2000)). Thus,no matter what a "wheeled loader" is, defendant was on notice thathe was not entitled to possess it if he knew that it was stolen, andhe was thus given fair warning what conduct was prohibited.

Similarly, the statute does not fail to give explicit standardsfor those who apply it, and arbitrary enforcement is neitherauthorized nor encouraged. If law enforcement officials believethat a person is in possession of stolen property, the statutes setforth above are sufficiently clear for them to determine how tocharge the offense. Likewise, the statutory definitions aresufficiently clear to be applied by a trier of fact. It would beextraordinarily difficult and burdensome for the legislature to listevery conceivable type of vehicle that is "special mobileequipment." Instead, they have provided a clear definition, withspecific examples of the types of vehicles that are included in thedefinition and those that are not.

The majority seems to be implying that if subsequent factsshow that a "wheeled loader" is not included in the definition, thenthe statute is unconstitutionally vague as applied to a wheeledloader. I disagree. If it is determined that a "wheeled loader" is"not designed or used primarily for the transportation of personsor property" and is "only incidentally operated or moved over ahighway," and defendant is shown to have possessed it, knowingthat it was stolen, then defendant is guilty of the charged offense.If it turns out that a "wheeled loader" does not meet that definition,then the State has mischarged these counts of the indictment anddefendant is not guilty of this particular offense. Either way, thestatute is not unconstitutionally vague. We have sufficientinformation to decide this issue now, and I would hold that thestatute is not unconstitutionally vague.

1. ¹The term "vehicle" is defined in section 1-217 (625 ILCS 5/1-217(West 2000)).

2. ²Defendant in this case was charged with theft of property worthmore than $10,000 but less than $100,000, which is a Class 2 felony.See 720 ILCS 5/16-1(b)(5) (West 2000).