People v. Karich

No. 2--95--1568

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
)
v. ) No. 95--DV--0726
)
DONALD D. KARICH, ) Honorable
) Hollis L. Webster,
Defendant-Appellant. ) Judge, Presiding.


JUSTICE McLAREN delivered the opinion of the court:
Defendant, Donald D. Karich, was charged by complaint with
telephone harassment (720 ILCS 135/1--1(2)(West 1996)) and violating
an order of protection (720 ILCS 5/12--30(a)(1) (West 1996)).
Following a bench trial, the trial court acquitted defendant of
telephone harassment, convicted defendant of violating the order of
protection, and sentenced defendant to one year of probation. On
appeal, defendant argues that we must reverse his conviction because
(1) the statute under which he was convicted creates an
unconstitutional evidentiary presumption, and (2) the State did not
prove defendant's guilt beyond a reasonable doubt. We reverse.
This appeal arises out of events that occurred on the evening
of March 1, 1995. Although the State and defendant disagree as to
how those events unfolded, the following background facts are not
in dispute: Defendant and his wife, Theresa, were in the process
of dissolving their marriage. After their relationship turned
particularly unfriendly, Theresa sought and obtained an order of
protection that prohibited defendant from, among other things,
harassing Theresa. The order did not, however, prohibit defendant
from telephoning or visiting with his children who lived with
Theresa. The order was valid and in force on the evening of March
1, 1995.
At this point, the State and defendant offer wholly divergent
accounts of the events of March 1, 1995. The State's account, which
Theresa testified to, is as follows: On the evening of March 1,
1995, Theresa was home with her children. At approximately 8:30
p.m., the telephone rang. Theresa picked up the receiver and heard
defendant swearing at and threatening her. She knew it was
defendant because she recognized his voice. Theresa hung up the
phone and reported the call to the police, but defendant called back
and continued to berate Theresa with threats and vulgar language.
Theresa again hung up, and defendant again called back. Theresa now
began to "trace" the calls to confirm that defendant was placing
them. By 9 p.m., defendant had called Theresa between 6 and 12
times. The calls made Theresa feel disgusted, hurt, angry, and
afraid.
Defendant testified that, on the evening of March 1, 1995, he
placed several telephone calls to Theresa's residence. His purpose
in placing the calls was to speak not with Theresa but with his
children. Each time defendant called, however, Theresa answered the
telephone and hung up without letting defendant speak with his
children. After several attempts, defendant stopped calling and
resolved to raise the matter with his attorney the next morning.
Later in the evening, defendant received a call from a police
officer who advised defendant to stop calling Theresa. Defendant
insisted that he never insulted, threatened, or berated Theresa;
rather, he merely asked Theresa to let him speak with his children.
After hearing these conflicting accounts, the trial court
acquitted defendant of telephone harassment. The telephone
harassment statute makes it a crime to place a telephone call,
whether or not a conversation ensues, with the intent to abuse,
threaten, or harass any person at the called number. 720 ILCS
135/1--1(2) (West 1996). In acquitting defendant, the trial court
explained that, given the conflicting accounts of the March 1, 1995,
telephone calls, the State had not proved the content of those calls
beyond a reasonable doubt. Without knowing the content of those
conversations, the trial court could not conclude beyond a
reasonable doubt that defendant's placing of those calls was
malicious. However, the trial court did convict defendant of
violating the order of protection. See 720 ILCS 5/12--30(a)(1)
(West 1996).
In convicting defendant, the trial court explained that, unlike
the telephone harassment statute, section 103(7)(ii) of the Illinois
Domestic Violence Act of 1986 (Domestic Violence Act) (750 ILCS
60/103(7)(ii) (West 1996)) did not require the State to prove either
the purpose or the contents of the March 1, 1995, calls. Rather,
once the State proved that defendant repeatedly called Theresa's
residence, section 103(7)(ii) required the trial court to presume
that the calls caused emotional distress. Given defendant's
admission that he placed several calls to Theresa's residence, the
trial court held that the State had satisfied its burden "regardless
of what the content of the conversation was."
The defendant argues that the State failed to establish the
first element of the offense beyond a reasonable doubt. The
defendant claims that the State failed to prove that the defendant's
purpose in making the telephone calls was not reasonable under the
circumstances. The State claims that the fact that the defendant
continued to call the victim, even after she hung up on him, was
sufficient to prove the first element beyond a reasonable doubt.
We agree with the defendant.
It is well established that a criminal conviction will not be
disturbed unless, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
People v. Batchelor, 171 Ill. 2d 367, 376 (1996). In this case the
defendant was found guilty of violating an order of protection, in
that he harassed Theresa. The order of protection was issued
pursuant to section 214(a) of the Domestic Violence Act (750 ILCS
60/214(a) (West 1996)). In order to prove a violation of an order
of protection by harassment the State must prove: (1) "knowing
conduct which is not necessary to accomplish a purpose that is
reasonable under the circumstances"; (2) that the conduct "would
cause a reasonable person emotional distress"; and (3) that the
conduct did "cause emotional distress to the petitioner." (Emphasis
added.) 750 ILCS 60/103(7) (West 1996). The section also states:
"Unless the presumption is rebutted by a preponderance of the
evidence, the following types of conduct shall be presumed to
cause emotional distress:
***
(ii) repeatedly telephoning petitioner's place of
employment, home or residence[.]" 750 ILCS 60/103(7)(ii)
(West 1996).
At trial, the defendant testified that he called Theresa
several times on the evening in question to speak with his children.
However, each time the defendant called, Theresa hung up the phone
without letting him speak with his children. Theresa testified that
the defendant called 6 to 12 times and berated her with threats and
vulgar language. The trial court concluded that the State had not
proved the content of those calls beyond a reasonable doubt. That
the defendant placed 6 to 12 calls to Theresa does not, ipso facto,
establish beyond a reasonable doubt that the purpose of those calls
was not reasonable. Without knowing the content of the calls, we
do not believe that any rational trier of fact could have found the
defendant's purpose in making the calls was not "reasonable under
the circumstances." 750 ILCS 60/103(7) (West 1996). Thus, the
State failed to prove the defendant guilty beyond a reasonable
doubt. Batchelor, 171 Ill. 2d at 376.
Because we have found a basis for reversal based on
insufficiency of the evidence, we do not address defendant's second
contention that section 103(7)(ii) of the Domestic Violence Act
creates an unconstitutional evidentiary presumption.
For the foregoing reasons, the judgment of the circuit court
of Du Page County is reversed.
Reversed.
INGLIS and RATHJE, JJ., concur.