People v. Kershner

Nos. 2--95--0670, 2--95--0710 cons.
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, ) Nos. 94--CF--1198
) 94--CF--1199
v. )
)
JOHN KERSHNER, ) Honorable
) Ronald B. Mehling,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE INGLIS delivered the opinion of the court:

Defendant, John Kershner, appeals his conviction of 11 counts
of failing to file a sales tax transaction reporting return (35
ILCS 120/13 (West 1994)) and of one count of filing a fraudulent
sales tax return (35 ILCS 120/13 (West 1994)), contending that the
Retailers' Occupation Tax Act (Act) (35 ILCS 120/1 (West 1994)) is
unconstitutionally vague. We affirm.
On June 1, 1994, defendant was indicted on 13 counts of
failing to file a sales tax transaction reporting return (No. 94--
CF--1198) and on two counts of filing a fraudulent sales
transaction reporting return (No. 94--CF--1199). Defendant waived
his right to a jury trial, and the two cases were consolidated for
a bench trial.
The following evidence was elicited at trial. At all relevant
times, defendant was working for a retail dealership, known as
Unlimited Automotive, which sold recreational vehicles. The
parties stipulated that by the dates of the violations Unlimited
Automotive had been involuntarily dissolved. The State presented
extensive testimony concerning defendant's position and
responsibilities with regard to the business.
Steven Ray Babbit, a mechanic at Unlimited Automotive,
testified that defendant had hired him, paid him, ran the day-to-
day operations of the business, and directed the employees. Babbit
also testified that Father Everett Hiller, who may have been
nominally the president of the business, came in only once a month
for an oil change and never paid Babbit or directed his work.
Babbit testified that Eric Anderson was hired as a salesman and
that Anderson did not order Babbit's work. Babbit further
testified that Jeff Marcos was hired as general manager and that he
took orders from defendant. Babbit stated that, at the time of the
sales tax violations, he was still employed by defendant and that
defendant controlled the day-to-day operations, issuing orders to
the other employees.
Eric Anderson testified that defendant hired him to be a
mechanic and defendant paid his salary. Anderson confirmed that
Marcos was employed as the general manager, but that he took orders
from defendant and that defendant made the ultimate business
decisions. Further, Anderson testified that defendant completed
the paperwork for the business.
Vinnie Emrich testified that defendant hired him as a
salesman. He reported to defendant. Emrich confirmed that Marcos,
the general manager, also reported to defendant. Emrich testified
that he was not responsible for filing sales tax returns and that
defendant had once approached him to borrow $20,000 to use to pay
sales taxes.
Investigator David Dellert of the Secretary of State's Police
testified that he had received a number of complaints from
customers who had not received titles to the vehicles they had
purchased from Unlimited Automotive. Investigator Dellert spoke
with defendant, issuing him written warnings on several occasions.
In February 1992, Investigator Dellert obtained a box containing
approximately 20 unprocessed deals from Jeff Marcos. He worked
with the owners to obtain their titles.
Paul Cervanka, a special agent with the Illinois Department of
Revenue, testified that a business tax number was issued to
Unlimited Automotive. He testified that 99% of the sales tax
checks received from Unlimited Automotive were signed by defendant.
Defendant did not testify in this matter. The trial court
found defendant guilty of 11 counts of failing to file a sales tax
transaction reporting return and of one count of filing a
fraudulent sales tax return. The court sentenced defendant to 30
months of probation and to 6 months' periodic imprisonment
concurrently on all charges. The court also ordered defendant to
make restitution. Following the denial of his posttrial motion,
defendant timely appealed.
Defendant contends that the Act is unconstitutionally vague as
applied to him. The parties are in agreement that, due to the
involuntary dissolution of Unlimited Automotive, defendant no
longer was employed by a corporation but, rather, was engaged in a
sole proprietorship. The Act provides, in pertinent part, that,
"[w]hen the amount due is $300 or more, any person engaged in the
business of selling tangible personal property at retail in this
State who fails to file a return, or who files a fraudulent return
*** is guilty of a Class 3 felony." 35 ILCS 120/13 (West 1994).
Defendant contends that the Act does not include sole
proprietorship among its enumerations, and, therefore, it is
unclear who in a sole proprietorship has the responsibility to file
sales tax returns. Defendant asserts that any of the Unlimited
Automotive employees could have been prosecuted under the Act.
Defendant claims that, because the responsible person is not
defined by the Act and because only he was charged for its
violation, the Act was unconstitutionally applied to him.
All statutes are presumed to be constitutional, and the party
challenging the statute has the burden of clearly establishing the
alleged constitutional violation. People v. Bales, 108 Ill. 2d 182, 188 (1985). A statute must satisfy two requirements in order
to comport with the standards of due process. First, the
proscriptions of the statute must be clearly defined. In other
words, the statute must inform a person of ordinary intelligence
what conduct is lawful and what conduct is unlawful. Bales, 108 Ill. 2d at 188. Second, the statute must provide definite
standards to avoid arbitrary and discriminatory enforcement by
police, judges, and juries. Bales, 108 Ill. 2d at 188. Whether a
statute is void for vagueness depends upon the specific factual
context of each case. Bales, 108 Ill. 2d at 189. So long as a
defendant's conduct "clearly falls within the statutory
proscription," a defendant may be prosecuted under the statute in
harmony with due process, "even though the statute may be vague as
to other conduct." People v. Garrison, 82 Ill. 2d 444, 454 (1980).
It is abundantly clear that, even if the Act is unclear on
exactly who is the "responsible person," in this case, defendant is
the "responsible person." Extensive evidence was presented
detailing the responsibilities and duties defendant undertook with
respect to the business. Defendant ran the everyday operations of
the business. He made hiring and firing decisions. He determined
the salaries to pay to employees. He directed the other employees'
work. In short, defendant was the medium through which this sole
proprietorship conducted business--the "responsible person." It
was his responsibility to file the sales tax forms, and defendant
does not contest on appeal the fact that the forms were not filed
or were fraudulently filed. Thus, even though the Act does not
include sole proprietorship among its enumerations, defendant was
proved to be the responsible person for this sole proprietorship
through the testimony at trial. In this case, therefore, we hold
that the Act was not unconstitutionally vague as applied to
defendant.
Defendant attempts to provide support for his argument with
People v. Jihan, 127 Ill. 2d 379, 381 (1989), in which provisions
of the repealed Illinois Medical Practice Act (Ill. Rev. Stat.
1985, ch. 111, par. 4401 et seq.) which prohibited the unlicensed
practice of midwifery were found to be unconstitutionally vague.
Jihan is distinguishable, however, because the issue decided there
was whether a person of ordinary intelligence could understand what
conduct was encompassed in the term "midwifery." Jihan, 127 Ill. 2d at 388. Here, by contrast, there is no issue concerning what
conduct is prohibited under the Act. Rather, the issue is whether
defendant could have understood that he would be liable for
performing the proscribed conduct. Thus, Jihan offers no support
for defendant's arguments.
For the foregoing reasons, the judgment of the circuit court
of Du Page County is affirmed.
Affirmed.
GEIGER, P.J., and BOWMAN, J., concur.