People v. Zamudio

THIRD DIVISION
December 24, 1997


No. 1-95-1246

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

EFRAIN ZAMUDIO,

Defendant-Appellant.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

No. 94 CR 9690

Honorable
James Schreier,
Judge Presiding.


JUSTICE CAHILL delivered the opinion of the court:
After a bench trial, defendant Efrain Zamudio was convicted of
stalking in violation of section 12-7.3(a) of the Criminal Code of
1961. 720 ILCS 5/12-7.3(a) (West 1996). Defendant was sentenced
to two years of probation and one year of home confinement on
Saturday nights. He was ordered to refrain from contact with
Carlos Rios and Rios' family.
Defendant makes the following arguments on appeal: (1) section
12-7.3(a) of the Criminal Code applies to innocent conduct in
violation of due process; (2) the section is unconstitutionally
overbroad; (3) the section is unconstitutionally vague because the
term "follows" is not defined; and (4) the evidence was
insufficient to sustain defendant's conviction. We affirm.
Carlos Rios testified at trial that he and defendant were
friends for about four years before Rios decided to end the
friendship. At about 2 p.m. on January 22, 1994, Rios was driving
on State Road to Chicago Ridge Mall, where he worked as a
salesperson in a clothing store. As he drove, a red Camaro
approached from the opposite direction. He recognized the car as
one that he had seen defendant driving before. The Camaro quickly
made a U-turn and followed Rios about four blocks to a traffic
light at the intersection of Ridgeland and 87th Streets. While
Rios waited at the red light, defendant pulled alongside Rios' car,
lowered his window, and began shouting. Rios could not hear what
defendant was saying through his closed window.
Rios testified that on January 28, 1994, at 11:45 p.m., he saw
defendant's car behind his car as he left a friend's house at 64th
and Lawndale Streets. Rios turned left onto 63rd Street and
defendant followed. When Rios increased his speed to 45 miles per
hour, so did defendant. Defendant maintained a distance of two to
three feet behind Rios' car. Rios stopped at a red light.
Defendant pulled beside him, lowered his window and shouted at
Rios. Rios could not hear what defendant said.
Rios also testified that on February 14, 1994, he took Norma
Renteria to a movie. As they drove to Renteria's house after the
movie, at around 9:30 p.m., Rios noticed a Cutlass Supreme with fog
lights following him. Rios was unfamiliar with the car, but
suspected defendant was the driver because of the way the car
followed him. The car remained directly behind Rios' car and
followed him to Renteria's house.
Renteria lived near the end of a dead-end street. Rios
testified that he parked his car in front of Renteria's house.
Defendant then parked his car so that it completely blocked Rios'
car. Defendant got out of his car, walked to Rios' car, banged on
the window, and said he was going to kill Rios. Rios and Renteria
stayed in the car.
Rios attempted to free his car because "[h]e was afraid and
had nowhere to go." He drove forward and "tapped" defendant's car
before backing into Renteria's driveway. Defendant ran to his car,
retrieved a portable phone, and then "sped off." When Rios arrived
home, he called the police and later went to the police station.
Renteria's testimony corroborated Rios' account of the
February 14, 1994, incident.
Francis Martin Rios, Carlos Rios' mother, testified that she
went to the police station on February 14, 1994. She talked to
defendant in an interview room with two police officers present.
Defendant pleaded with her not to press charges. Defendant said he
was going to stop following Rios. Francis Rios did not believe
defendant because defendant was already in violation of a court
order directing defendant to stay away from Rios.
Defendant testified on his own behalf. He said that on
January 22, 1994, he visited a cousin at the Chicago Ridge Mall.
As he was driving home, he saw Rios' car heading toward the mall on
State Road. He denied following Rios. He also denied rolling down
his window and shouting at Rios.
Defendant denied seeing, following or shouting at Rios on
January 28, 1994. He admitted that he saw Rios and Renteria on
February 14, 1994. He claimed that he was on his way to visit a
friend who lived near Renteria. He drove down the street on which
Renteria lived and made a U-turn. Defendant then noticed Rios' car
approaching in his rearview mirror. Rios drove his car into
defendant's car. Defendant claimed that he got out of his car and
tried to get Rios' insurance information, but Rios and Renteria
laughed at him and ignored his request. Defendant denied
threatening to kill Rios, but admitted that he hit Rios' car window
and told Rios that he was going to "kick his ass." Defendant
claimed that Rios' car came toward him and tapped his legs as he
returned to his car. Defendant unsuccessfully tried to call the
police, so he drove to the police station. Defendant was at the
station filling out an accident report when he was arrested for
stalking Rios.
Defendant challenges the constitutionality of the stalking
statute on several grounds. Defendant argues that the statute
"punish[es] wholly innocent conduct." He further argues that the
statute is overbroad because it can be applied to constitutionally
protected conduct. The statute that defendant was prosecuted
under reads:
"(a) A person commits stalking when he or she,
knowingly and without lawful justification, on at least
2 separate occasions follows another person or places the
person under surveillance or any combination thereof and:
(1) at any time transmits a threat to
that person of immediate or future bodily
harm, sexual assault, confinement or
restraint; or
(2) places that person in reasonable
apprehension of immediate or future bodily
harm, sexual assault, confinement or
restraint." 720 ILCS 5/12-7.3(a) (West 1996).
Assault is as old as the English common criminal law (6 Am.
Jur. 2d Assault & Battery 1 (1963)), is a part of the Model Penal
Code (Model Penal Code 211.1, 10 U.L.A. 538 (1974)), and has been
a part of the Illinois Criminal Code from the beginning (720 ILCS
5/12-1 (West 1996)). Stripped of the name "stalking," the conduct
described and proscribed in the statute is nothing more than one
example of an assault at common law or the offense of assault in
our criminal code.
In People v. Rand, 291 Ill. App. 3d 431 (1997), and in People
v. Cortez, 286 Ill. App. 3d 478 (1996), we held that the
"knowingly" and "without lawful justification" requirements limit
the reach of the statute to only culpable conduct. Rand, 291 Ill.
App. 3d at 438; Cortez, 286 Ill. App. 3d at 481. Following those
cases, we reject defendant's argument that the statute can be
applied to innocent or constitutionally protected conduct. The
conduct must be accompanied by evidence of a threat of harm or of
placing the victim in reasonable apprehension of harm. The State
must plead and prove each essential element of the offense. People
v. Soto, 277 Ill. App. 3d 433, 438 N.E.2d 990 (1995). Defendant's
argument suggests that the statute would permit a conviction based
on evidence of following without more. The statute cannot be so
read. The statute does not require that the threat "precede" the
"following," but, rather, the requirement that the State prove that
the following is unlawful makes clear that the State must prove
that the following and threat are part of a course of conduct that
the legislature has dubbed the assault of "stalking."
We next address defendant's argument that the stalking statute
is unconstitutionally vague because it fails to define the word
"follows." Since defendant's vagueness challenge does not
implicate first amendment concerns, we need only address whether
the statute is vague as applied in this case. People v. Jihan, 127 Ill. 2d 379, 385, 537 N.E.2d 751 (1989).
A statute is unconstitutionally vague under the due process
clauses of the United States and Illinois Constitutions (U.S.
Const., amend. XIV; Ill. Const. 1970, art. I, 2) if it fails to
give "a person of ordinary intelligence a reasonable opportunity to
know what conduct is lawful and what conduct is unlawful." People
v. Anderson, 148 Ill. 2d 15, 27-28, 591 N.E.2d 461 (1992). A
statute is also unconstitutionally vague if it allows for arbitrary
and discriminatory application by police, judges, and juries.
Jihan, 127 Ill. 2d at 385.
Defendant contends that he could not have known his conduct on
January 22 or 28 violated the statute because he was merely
"[driving] behind Rios' car in a public place" and doing nothing
"in furtherance of [a] threat." He argues that the term
"following" is too vague to warn him that his conduct was
prohibited.
In the absence of a statutory definition, words in a statute
are to be given their ordinary and popularly understood meanings.
People v. Anderson, 148 Ill. 2d at 28. In Cortez, we held that
"[t]he 1993 stalking statute's use of the terms 'follows' and
'surveillance' is sufficiently definite to put the average person
on notice as to what constitutes a violation." Cortez, 286 Ill.
App. 3d at 483. We relied on our supreme court's interpretation of
an earlier version of the stalking statute. See People v. Bailey,
167 Ill. 2d 210, 657 N.E.2d 953 (1995).
The statute at issue in Bailey read:
"(a) A person commits stalking when he or she
transmits to another person a threat with the intent to
place that person in reasonable apprehension of death,
bodily harm, sexual assault, confinement or restraint,
and in furtherance of the threat knowingly does any one
or more of the following acts on at least 2 separate
occasions:
(1) follows the person, other than within
the residence of the defendant;
(2) places the person under surveillance
by remaining present outside his or her
school, place of employment, vehicle, other
place occupied by the person, or residence
other than the residence of the defendant."
720 ILCS 5/12-7.3(a) (West 1992).
Defendant argues that Bailey is inapplicable because the term
"follows" is no longer required to be "in furtherance of a threat."
Defendant argues that the "in furtherance of a threat" requirement
saved the 1992 stalking statute from being deemed
unconstitutionally vague in Bailey.
In Bailey, our supreme court noted that "[b]ecause the
following must be in furtherance of a threat, the term 'following'
must have an element of pursuit to it." Bailey, 167 Ill. 2d at
229. But the court also noted that "Webster's defines 'follow' to
mean 'to go, proceed, or come after' and 'to go after in pursuit or
in an effort to overtake." Bailey, 167 Ill. 2d at 229, quoting
Webster's Third New International Dictionary 883 (1986). Even
without the "in furtherance of a threat" language, the "following"
must be "without lawful justification." It does not include
"aimless, unintentional, or accidental conduct." Bailey, 167 Ill. 2d at 229.
Defendant misapprehends the nature of the assault described in
the stalking statute. Following someone may be innocent enough, as
one follows taillights on a dark road. But the crime described in
this statute requires the State to plead and prove beyond a
reasonable doubt that the following was a part of conduct that
placed the victim in reasonable apprehension of receiving a
battery, and so was without lawful justification. This is true
under either the threat language of subsection 12-7.3(a)(1) or the
classical definition of assault in subsection 12-7.3(a)(2). In
either case, at the end of the State's case in chief, it must have
met its burden of proof for assault.
Defendant's car followed closely behind Rios three times.
Defendant twice pulled his car next to Rios at a red light and
shouted at him. The third time, defendant stayed behind Rios all
the way to Renteria's house, where he parked his car and approached
Rios. A person of ordinary intelligence would be on notice that
this behavior is "following."
We also find no merit to defendant's argument that the statute
"allows arbitrary and discriminatory enforcement of the statute
based upon the subjective standards of the decision maker." A
defendant can be legally arrested, prosecuted and convicted only
"where a defendant knowingly and without lawful justification
either follows or places a person under surveillance on two
separate occasions, and either threatens or assaults that person."
Cortez, 286 Ill. App. 3d at 483. The requirement of two separate
incidents accompanied by threat or assault is clear enough to
inhibit arbitrary and discriminatory enforcement based on
subjective standards.
We finally address defendant's argument that his conviction
was based on insufficient evidence. The standard of review when a
defendant argues his conviction is based on insufficient evidence
is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the
elements of the crime beyond a reasonable doubt. People v.
Sutherland, 155 Ill. 2d 1, 17, 610 N.E.2d 1 (1992). We will not
reverse a conviction unless the evidence is so improbable or
unsatisfactory that there remains a reasonable doubt of defendant's
guilt. People v. Jimerson, 127 Ill. 2d 12, 43, 535 N.E.2d 889
(1989).
Defendant argues that the State did not prove that defendant
"knowingly" followed Rios on January 22 and 28, 1994. A defendant
acts "knowingly" when he is aware of the existence of facts that
make his conduct unlawful. People v. Tolliver, 147 Ill. 2d 397,
400, 589 N.E.2d 527 (1992); People v. Gean, 143 Ill. 2d 281, 288,
573 N.E.2d 818 (1991). Defendant argues that he could not have
known that his "following" conduct was unlawful because his conduct
did not amount to a violation of the statute until he threatened
Rios on a later date.
The statute does not require the State to prove that defendant
knew his actions were illegal. The State must show only that
defendant knew he was following or surveilling Rios. Defendant
closely followed Rios three times and tried to communicate with
Rios each time. From this conduct a trier of fact could reasonably
infer that defendant knowingly followed Rios.
Defendant also argues that the State did not prove that
defendant acted "without lawful justification." He argues that
because he possesses a "clear constitutional right to travel
freely" he had "lawful justification" to travel as he did on
January 22 and 28, 1994. See Shapiro v. Thompson, 394 U.S. 618,
631, 22 L. Ed. 2d 600, 613, 89 S. Ct. 1322, 1329 (1969); United
States v. Guest, 383 U.S. 745, 757-58, 16 L. Ed. 2d 239, 249, 86 S. Ct. 1170, 1177-78 (1966). The issue is not whether defendant had
lawful justification to be in or travel to the places where the
incidents happened. The issue is whether the facts of the case are
such that a trier of fact could conclude that the following was
without lawful justification because it placed Rios in apprehension
of bodily harm.
Finally, defendant argues that the State did not prove
defendant transmitted a threat to Rios. Defendant notes that in
defining the term "threat" under the Illinois intimidation statute
(720 ILCS 5/12-6(a)(West 1996)) we have found that the term implies
that the threatening expression "have a reasonable tendency to
create apprehension that its originator will act according to its
tenor." See People v. Maldonado, 247 Ill. App. 3d 149, 153-54, 617 N.E.2d 236 (1993); People v. Libbra, 268 Ill. App. 3d 194, 198, 643 N.E.2d 845 (1994). We believe a trier of fact could properly
conclude that defendant's behavior had a "reasonable tendency to
create apprehension" where defendant's threat to kill Rios was made
while banging on the car window after repeatedly following Rios and
after having parked so Rios could not leave.
Affirmed.
LEAVITT, P.J., and GORDON, J., concurring.