People v. Watts

Annotate this Case
People v. Watts, No. 81548 (2/20/98)

Docket No. 81548--Agenda 11-- May 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DAN WATTS,
Appellee.
Opinion filed February 20, 1998.

JUSTICE McMORROW delivered the opinion of the court:
Defendant, Dan Watts, was convicted of home repair fraud under the Home
Repair Fraud Act (the Act) (815 ILCS 515/1 et seq. (West 1994)) in a bench trial
in the circuit court of Lake County. The appellate court reversed the conviction,
concluding that the Act contains an unconstitutional mandatory presumption which
impermissibly relieves the State of its burden of proving that defendant did not
intend to perform the promised home repairs. 281 Ill. App. 3d 434. The State filed
a petition for leave to appeal as a matter of right, under Supreme Court Rule 317
(134 Ill. 2d R. 317). We granted that petition, and now affirm the decision of the
appellate court.

BACKGROUND
Defendant was indicted on charges of theft (720 ILCS 5/16--1(a)(2)(A)
(West 1994)) and home repair fraud (815 ILCS 515/3(a)(1) (West 1994)). The
theft count alleged that defendant knowingly obtained control over the property
of the alleged victims by deception, in that he accepted money from the victims
by promising to perform home repairs which he had no intent to actually perform.
The home repair fraud count similarly alleged that defendant had knowingly
entered into a contract for home repair when he had no intent to perform the
promised work.
There was little dispute over the facts at trial. The Lutz family decided to
build an addition to their home in Highland Park. In September 1993, they
contacted defendant about serving as the general contractor for the construction
of the addition. On February 12, 1994, the Lutzes and defendant entered into a
contract under which defendant was to serve as the general contractor. Under the
terms of the contract, defendant was to receive a total of $67,509 in compensation.
One third of this sum was to be paid as an initial retainer, and a third was to be
paid when the work began. The remaining third was to be paid in increments as
defendant incurred costs, with full payment of any outstanding balance to be made
within 30 days of the completion of construction.
By the time the contract was executed, the Lutzes had paid the initial
retainer of $22,800. Defendant told the Lutzes that he would use this money to
purchase materials, secure subcontractors, and arrange for building permits.
Defendant testified at trial that he ordered and made down payments on some of
the materials required for the project, though he admitted on cross-examination
that he could not produce receipts for these materials. Defendant also procured the
necessary work permits, and contacted seven subcontractors--four electricians, two
plumbers and an excavation firm--in connection with the work on the Lutz home.
He solicited bids from each of the seven, and hired the excavation firm.
The actual construction of the addition did not last long. The architectural
plans for the construction were approved in early April 1994. On April 19,
defendant began working on the project. On April 20, he arrived at the home with
the excavation subcontractor, who performed the necessary excavation. Defendant
paid the subcontractor $1,680 for the work done that day. However, three persons
(the architect for the work, the Highland Park building inspector, and another
contractor) each told the Lutzes that the hole that the subcontractor had dug was
too deep, and, as a result, threatened to cause the existing Lutz home to collapse
into the new hole.
According to Mrs. Lutz, on April 23, defendant asked the Lutzes for
additional money which he claimed he needed in order to connect pipes from the
house to the storm sewer. The contract provided that the next payment was due
at the time that work commenced. Because of the problem with the excavation,
the Lutzes refused to pay defendant any additional sums. On April 25, defendant
stopped working on the Lutz home and removed his employees and their
equipment from the job. Defendant testified that he did this because the Lutzes
told him that they did not want him to continue working on the project. The
Lutzes had numerous conversations with defendant in the weeks that followed,
although they never paid defendant and he never resumed working on their home.
Mrs. Lutz conceded that on three occasions between April 28 and May 1,
defendant offered to continue work on the project at his own expense, and would
not expect any payment from the Lutzes until he completed the project. She also
testified that they did not accept any of these offers. Thereafter, defendant was
charged with theft and home repair fraud.
At the conclusion of the bench trial, the court found defendant not guilty
of the theft charge, and guilty of the home repair fraud charge. With respect to the
theft count, the court found that the State failed to prove that defendant had not
intended to perform the construction services at the time that he entered into the
contract. Therefore, an element of theft--intent "to deprive the owner permanently
of the use or benefit of the property" (720 ILCS 5/16--1(a)(1)(A) (West 1994))--
was not established by the evidence.
However, the court reached a different conclusion on the home repair fraud
count. The portion of the Act under which defendant was indicted defines home
repair fraud as having two elements: (1) entering a contract for home repair, and
(2) doing so with the intent not to perform the work, or with the knowledge that
the work will not be completed. 815 ILCS 515/3(a)(1) (West 1994). The Act also
specifies that "it shall be a rebuttable presumption of intent" not to perform where
(1) the defendant did not substantially perform the promised work; (2) the
defendant refused to refund the victim's payments; and (3) the defendant
committed any of seven other acts enumerated in the statute, such as failure to use
qualified personnel, or failure to notify a customer of a change in business name.
See 815 ILCS 515/3(c) (West 1994).
There was no dispute that defendant had entered into a contract for home
repair. Thus, the only question at trial was whether defendant had intended to
perform the promised work at the time he entered into the contract. While the trial
court found that the State had not proved that defendant did not intend to perform
the home repairs beyond a reasonable doubt, as the theft count required, the court
found that the State had proved the factors necessary to raise a presumption of
intent under the Act. Specifically, the court found that the State had proved that
defendant did not substantially perform the work; had refused to return the
victims' payments; and had failed to use qualified personnel by hiring the
excavation subcontractor. Thus, the court concluded that the statutory presumption
of intent was triggered. The court also found that the defendant failed to rebut that
presumption. For these reasons, the court entered a finding of guilty on the home
repair fraud count.
Defendant appealed, and the appellate court reversed the conviction. The
appellate court determined that the Act's intent presumption is mandatory, that is,
it tells the fact finder that it must assume the existence of intent if the State proves
the existence of the factors listed in the statute, unless the presumption has been
rebutted. 281 Ill. App. 3d at 440. The appellate court further concluded that once
the presumption of intent is triggered, the burden of persuasion shifts to the
defendant to disprove the element of intent. Under the United States Supreme
Court's holding in Francis v. Franklin, 471 U.S. 307, 85 L. Ed. 2d 344, 105 S. Ct. 1965 (1985), and other cases, the appellate court ruled that such a mandatory,
burden-shifting presumption violates due process of law under the United States
and Illinois Constitutions. 281 Ill. App. 3d at 442.
The appellate court also determined that the State was collaterally estopped
from retrying defendant for home repair fraud because, in a retrial on the home
repair fraud count, the trial court would have to decide whether defendant intended
to perform the home repairs without the aid of the statutory presumption. The
appellate court noted that in the original trial, the State had been required to
prove, as an element of the theft count, that defendant did not intend to perform
the promised work. The appellate court further held that, because the trial court
explicitly found that the State had failed to prove the element of intent, the issue
of defendant's intent had been adjudicated and could not be re-presented to the
trial court. The State appealed.

ANALYSIS
The Act provides, in relevant part:
"sec. 3. Home Repair Fraud
(a) A person commits the offense of home repair fraud
when he knowingly enters into an agreement or contract, written or
oral, with a person for home repair, and he knowingly:
(1) Misrepresents a material fact relating to the terms of the
contract or agreement or the preexisting or existing condition of
any portion of the property involved, or creates or confirms
another's impression which is false and which he does not believe
to be true, or promises performance which he does not intend to
perform or knows will not be performed; ***
* * *
(c) For purposes of subsection (a), paragraph (1), it shall be
a rebuttable presumption of intent or knowledge that a person
promises performance which he does not intend to perform and
knows will not be performed when, after no performance or no
substantial performance of a contract or agreement for home repair,
he fails or refuses to return payments made by the victim and he:
(1) fails to acknowledge or respond to a written
demand for commencement or completion of home repair
within 10 days after such demand is mailed or presented to
him by the victim or by the victim's legal representative or
by a law enforcement or consumer agency acting on behalf
of the victim; or
(2) fails to notify the victim in writing of a change
of business name or address prior to the completion of the
home repair; or
(3) makes false statements or representations to the
victim to excuse his non-performance or non-substantial
performance; or
(4) uses deception to obtain the victim's consent to
modification of the terms of the original contract or
agreement; or
(5) fails to employ qualified personnel necessary to
perform the home repair; or
(6) fails to order or purchase the basic materials
required for performance of the home repair; or
(7) fails to comply with municipal, county, State or
federal regulations or codes relating to the performance of
home repair.
Intent and knowledge shall be determined by an evaluation
of all circumstances surrounding a transaction and the
determination shall not be limited to the time of contract or
agreement.
Substantial performance shall not include work performed
in a manner of little or no value or work that fails to comply with
the appropriate municipal, county, State or federal regulations or
codes." 815 ILCS 515/3 (West 1994).
Subsection (a), paragraph (1), of the Act sets forth the two elements of
home repair fraud under which defendant was convicted: (1) entering a contract
for home repair; and (2) having no intent to perform as promised under the
contract. Subsection (c), with which we are concerned here, provides that, if the
State proves three other factors, i.e., that the defendant failed to perform or
substantially perform the promised work, failed or refused to return payments, and
committed any of the seven "other" types of actions, then the fact finder "shall"
presume that the defendant intended not to perform the work as promised, unless
that presumption is rebutted. The question before us is whether the presumption
set forth in subsection (c) violates the constitutional limits on the State's right to
use presumptions in proving defendant's guilt.

I. Standards for Reviewing the Constitutionality of
Presumptions
A presumption is a legal device which permits or requires the fact finder
to assume the existence of a presumed or ultimate fact, after certain predicate or
basic facts have been established. See generally M. Graham, Cleary & Graham's
Handbook of Illinois Evidence sec. 302.1, at 85 (6th ed. 1994). This court has
stated that presumptions may be divided into two broad categories: permissive and
mandatory. People v. Hester, 131 Ill. 2d 91, 99-100 (1989). A permissive
presumption, or inference, is one which merely allows, but does not require, the
fact finder to infer the existence of the ultimate or presumed fact upon proof of
the predicate fact, without placing any burden on the defendant. County Court v.
Allen, 442 U.S. 140, 157, 60 L. Ed. 2d 777, 792, 99 S. Ct. 2213, 2224 (1979).
With a permissive presumption, the fact finder "is free to accept or reject the
suggested presumption." Hester, 131 Ill. 2d at 99.
A mandatory presumption, on the other hand, is one
"where the fact finder is not free to reject the proffered
presumption. A mandatory presumption may be conclusive, that is
`an irrebuttable direction' [citations], or it may shift the burden of
proof." Hester, 131 Ill. 2d at 99.
Mandatory, irrebuttable presumptions (or conclusive presumptions)
"relieve[ ] the State of its burden of persuasion by removing the presumed element
from the case entirely if the State proves the predicate facts." Francis, 471 U.S. at 317, 85 L. Ed. 2d at 355, 105 S. Ct. at 1972. Once such a presumption is
triggered, the defendant is not allowed to attempt to rebut the connection between
the proven and presumed facts. Sandstrom v. Montana, 442 U.S. 510, 517, 61 L. Ed. 2d 39, 46-47, 99 S. Ct. 2450, 2456. Mandatory presumptions which shift the
burden of proof are commonly referred to as rebuttable presumptions, and may be
further divided into two groups: those that shift the burden of production to the
defendant and those that shift the burden of persuasion. See generally J.
Weinstein, Weinstein's Federal Evidence sec. 303.06, at 303-18 (2d ed. 1997); S.
Jacobson, Mandatory and Permissive Presumptions in Criminal Cases: The
Morass Created by Allen, 42 U. Miami L. Rev. 1009, 1019-22 (1988). When a
mandatory rebuttable presumption shifts the burden of production to the defendant,
the fact finder must find the presumed fact upon proof of the predicate facts only
if the defendant fails to offer some quantum of evidence which would tend to
rebut the presumed fact. If that quantum of evidence is produced, the presumption
is eliminated. Allen, 442 U.S. at 157 n.16, 60 L. Ed. 2d at 792 n.16, 99 S. Ct. at
2225 n.16. When a rebuttable presumption shifts the ultimate burden of persuasion
to the defendant, then, upon proof of the predicate facts, the fact finder is required
to find the presumed fact unless the defendant persuades it not to do so. Allen,
442 U.S. at 157 n.16, 60 L. Ed. 2d at 792 n.16, 99 S. Ct. at 2225 n.16.
Inferences and presumptions play "a vital role in the expeditious resolution
of factual questions" (Hester, 131 Ill. 2d at 98) and "are a staple of our adversary
system of factfinding." Allen, 442 U.S. at 156, 60 L. Ed. 2d at 791, 99 S. Ct. at
2224. However, the use of presumptions and inferences to "prove" an element of
a crime may raise due process concerns. The due process clause protects the
accused against conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged." In re Winship,
397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1073 (1970). Thus, "the
due process clauses of the Fifth and Fourteenth Amendments set limits upon the
power of Congress or that of a state legislature to make the proof of one fact or
group of facts evidence of the existence of the ultimate fact on which guilt is
predicated." Tot v. United States, 319 U.S. 463, 467, 87 L. Ed. 1519, 1524, 63 S. Ct. 1241, 1245 (1943). See also, e.g., Francis, 471 U.S. at 313, 85 L. Ed. 2d at
352-53, 105 S. Ct. at 1970.
The United States Supreme Court has held that when there is some
corroborating evidence of the defendant's guilt, the constitutionality of permissive
presumptions should be judged under a "more likely than not" standard. Under this
standard, the permissive presumption will satisfy due process concerns if the
presumed fact is more likely than not to flow from the predicate fact. Allen, 442 U.S. at 167, 60 L. Ed. 2d at 798, 99 S. Ct. at 2230. However, where the
permissive presumption is the "sole and sufficient basis for a finding of guilt," the
presumed fact must flow beyond a reasonable doubt from the proven, predicate
fact. Allen, 442 U.S. at 166-67, 60 L. Ed. 2d at 797-98, 99 S. Ct. at 2229-30. This
court has adopted these tests for permissive presumptions. Hester, 131 Ill. 2d at
100; People v. Housby, 84 Ill. 2d 415, 420 (1981).
The United States Supreme Court has long held that mandatory irrebuttable
presumptions are unconstitutional. See, e.g., Sandstrom, 442 U.S. at 521-23, 61 L. Ed. 2d at 49-51, 99 S. Ct. at 2458-59 (citing Morissette v. United States, 342 U.S. 246, 96 L. Ed. 288, 72 S. Ct. 240 (1952), and United States v. United States
Gypsum Co., 438 U.S. 422, 57 L. Ed. 2d 854, 98 S. Ct. 2864 (1978)). The Court
has explained that irrebuttable mandatory presumptions are unconstitutional
because they conflict with the presumption of innocence. Sandstrom, 442 U.S. at
523, 61 L. Ed. 2d at 50, 99 S. Ct. at 2459.
With respect to mandatory rebuttable presumptions, the Supreme Court at
one time indicated that all such presumptions would be upheld as constitutional,
so long as the presumed fact flowed beyond a reasonable doubt from the proven,
predicate fact. See Allen, 442 U.S. at 167, 60 L. Ed. 2d at 798, 99 S. Ct. at 2230;
see also Hester, 131 Ill. 2d at 99 (noting, though not relying upon, the reasonable
doubt standard for mandatory presumptions set forth in Allen); Housby, 84 Ill. 2d
at 420. However, after the Allen decision, the Supreme Court made it clear that
mandatory rebuttable presumptions which shift the burden of persuasion are per
se unconstitutional. The Supreme Court has reasoned that mandatory rebuttable
presumptions which shift the burden of persuasion to the defendant are
unconstitutional because they relieve the State of its burden to prove every
element of a crime beyond a reasonable doubt. See Sandstrom, 442 U.S. at 524,
61 L. Ed. 2d at 51, 99 S. Ct. at 2459; see also Francis, 471 U.S. at 314, 85 L. Ed. 2d at 353, 105 S. Ct. at 1971 ("[s]uch [mandatory] presumptions violate the Due
Process Clause if they relieve the State of the burden of persuasion on an element
of an offense"); Yates v. Evatt, 500 U.S. 391, 401-02, 114 L. Ed. 2d 432, 447-48,
111 S. Ct. 1884, 1891-92 (1991); Carella v. California, 491 U.S. 263, 265-66, 105 L. Ed. 2d 218, 221-22, 109 S. Ct. 2419, 2420-21 (1989) (per curiam); see also
People v. Ziltz, 98 Ill. 2d 38, 44 (1983); Weinstein's Federal Evidence sec.
303.06(4)(a), at 303--29; N. Roth & S. Sundby, The Felony-Murder Rule: A
Doctrine at Constitutional Crossroads, 70 Cornell L. Rev. 446, 466-69 (1985)
("Sandstrom's inescapable import is that both conclusive presumptions and
mandatory presumptions shifting the burden of persuasion [are unconstitutional]").
Neither this court nor the United States Supreme Court has ruled on the
constitutionality of mandatory presumptions which place a burden of production
on a defendant, but which do not place the burden of persuasion on him. See
Francis, 471 U.S. at 314 n.3, 85 L. Ed. 2d at 353 n.3, 105 S. Ct. at 1971 ("We
are not required to decide in this case whether a mandatory presumption that shifts
only a burden of production to the defendant is consistent with the Due Process
Clause, and we express no opinion on that question"). However, the majority of
commentators who have considered the question conclude that presumptions which
impose a burden of production upon the defendant, like those that impose a
burden of persuasion, are unconstitutional on their face. See, e.g., M. Graham,
Cleary & Graham's Handbook of Illinois Evidence sec. 304, at 118 (6th ed. 1994);
M. Graham, Presumptions--More Than You Ever Wanted to Know and Yet Were
Too Disinterested to Ask, 17 Crim. L. Bull. 431, 441 (1981); Note, After
Sandstrom: The Constitutionality of Presumptions That Shift the Burden of
Production, 1981 Wis. L. Rev. 519, 524, 545-54 (1981); 42 U. Miami L. Rev. at
1021. In addition, several states, following the example set forth in proposed
Federal Rule of Evidence 303, have enacted rules of evidence which expressly
prohibit the use of all mandatory presumptions in the criminal context, both those
that shift the burden of persuasion and those that shift the burden of production.
See, e.g., Neb. Rev. Stat. sec. 27--303(2) (1997) ("The judge is not authorized to
direct the jury to find a presumed fact against the accused"); Haw. Rev. Stat. sec.
306(a) (1997); Or. Rev. Stat. sec. 40.125 (1996); see also Weinstein's Federal
Evidence sec. 303, at 303--1 (discussing proposed Federal Rule of Evidence 303);
G. Fenner, Presumptions: 350 Years of Confusion and It Has Come To This, 25
Creighton L. Rev. 383, 402 (1992).
Using the example of a jury instruction, one court has explained the
constitutional problems created by a mandatory presumption which shifts the
burden of production to the defendant:
"Instructing a jury that under certain circumstances it must draw a
particular inference infringes upon both the right to trial by jury on
that element and the right to have the State prove every element of
the charge beyond a reasonable doubt. [Citation.] Such an
instruction is in reality just a polite form of a partial directed
verdict, a procedural device which is 'abhorrent to the criminal
law.' [Citations.] A mandatory presumption, even a mere
production-shifting one, may also place undue pressure on a
defendant to waive his right to remain silent. [Citation.]
*** When the defendant presents no evidence to rebut this
presumption, the jury is required to find an element of the crime,
effectively removing that issue from the jury's consideration. In
addition, the State is relieved of its burden of proving the element
in question beyond a reasonable doubt. Both of these consequences
violate the defendant's constitutional rights." (Emphasis in
original.) Washington v. Johnson, 100 Wash. 2d 607, 617, 674 P.2d 145, 151-52 (1983).
But see Davis v. Allsbrooks, 778 F.2d 168, 173 (4th Cir. 1985) (holding that
production-shifting presumptions are to be judged under same standard as
permissive presumptions); Muller v. Wisconsin, 94 Wis. 2d 450, 472, 289 N.W.2d 570, 583-84 (1980) (same).
We agree that in the area of criminal law, mandatory rebuttable
presumptions which shift the burden of production to the defendant are
unconstitutional. A production-shifting presumption places a burden on the
defendant to come forward with a certain quantum of evidence to overcome the
presumption. If the defendant does not satisfy that burden, the judge is required,
in effect, to direct a verdict against the defendant on the element which is proved
by the use of the presumption. This result conflicts with the longstanding rule that
a verdict may not be constitutionally directed against a defendant in a criminal
case. See, e.g., Sandstrom, 442 U.S. at 516 n.5, 61 L. Ed. 2d at 46 n.5, 99 S. Ct. at 2455 n.5; United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 51 L. Ed. 2d 642, 652, 97 S. Ct. 1349, 1355 (1977). In sum, we agree with the
commentator who noted that, "[s]ince a verdict may not be directed against an
accused, the burden of production with respect to an element of a crime *** may
never be shifted to the defendant." 17 Crim. L. Bull. at 441. Therefore, we hold
that such a presumption violates the due process clause of the United States
Constitution for the reasons discussed above. These same reasons lead us to hold
separately that a mandatory production-shifting presumption also violates the due
process clause of the Illinois Constitution.

II. The Presumption in This Case
The proper place to begin an inquiry into the constitutionality of a
presumption is to determine the nature of the presumption. See, e.g., Francis, 471 U.S. at 313-14, 85 L. Ed. 2d at 353, 105 S. Ct. at 1971. The State acknowledges
that the first sentence of subsection (c) creates a mandatory, rebuttable
presumption of intent once the predicate facts are established. Despite this fact,
however, the State contends that defendant bears no burden under the statute. The
State bases its argument on the penultimate sentence of subsection (c). This
sentence states that "[i]ntent and knowledge shall be determined by an evaluation
of all circumstances surrounding a transaction and the determination shall not be
limited to the time of contract or agreement." The State argues that this sentence
means that the State is never relieved of the burden of production or persuasion.
We do not agree with this interpretation. The presumption's mandatory
nature is clearly demonstrated by its mandate that "it shall be a rebuttable
presumption." (Emphasis added.) 815 ILCS 515/3(c) (West 1994). The penultimate
sentence of subsection (c) does nothing to alter this mandatory language.
We believe that the penultimate sentence of subsection (c) is intended to
assist a defendant by expanding the realm of relevant evidence which he may use
to rebut the presumption. For example, if the State triggered the presumption by
proving that a defendant had used an unqualified subcontractor, the defendant
might attempt to rebut the presumption by introducing evidence of the
subcontractor's satisfactory performance on prior projects. This would tend to
show a good-faith belief on the defendant's part that the subcontractor was
qualified and, therefore, that the defendant intended to perform the promised work.
If subsection (c) did not include the penultimate sentence, the evidence might be
considered irrelevant, because the ultimate issue is the defendant's intent at the
time he entered the contract. However, by explicitly allowing the defendant to
introduce evidence "not limited to the time of the contract," the sentence would
allow the introduction of the evidence in the example. This "intent and
knowledge" provision of subsection (c), on which the State relies, does not change
the fact that the burden shifts to the defendant: the provision operates only to
assist the defendant in bearing that burden. Accordingly, we conclude that the
presumption contained in subsection (c) is mandatory and, as such, is
unconstitutional.
The State also argues that the scheme established for triggering a
presumption under the Act is different from those found unconstitutional by the
Supreme Court in such cases as Francis and Sandstrom. The State points out that
under the Act, the basic facts (those that, if proven, give rise to the presumption)
are wholly separate from the nonintent elements of the crime, while in Francis
and Sandstrom, the facts necessary to raise the presumption were already part of
the prosecution's prima facie case. For example, in Francis, the defendant was
convicted of "malice murder," the elements of which were causing the death of
another person with malice aforethought. The jury was instructed that "[t]he acts
of a person of sound mind and discretion are presumed to be the product of the
person's will, but that presumption may be rebutted," and that "[a] person of
sound mind and discretion is presumed to intend the natural and probable
consequences of his acts but the presumption may be rebutted." Francis, 471 U.S. at 311-12, 85 L. Ed. 2d at 351-52, 105 S. Ct. at 1969-70. Thus, the facts necessary
to prove one element of the crime (the causing the death of another person) were
the same facts necessary to give rise to the presumption of malice. Similarly, in
Sandstrom, the defendant was convicted of deliberate homicide, the elements of
which were causing the death of another person, while acting purposely or
knowingly. The jury was instructed that " `[t]he law presumes that a person
intends the ordinary consequences of his voluntary acts.' " Sandstrom, 442 U.S. at 513, 61 L. Ed. 2d at 44, 99 S. Ct. at 2453. Thus, the element of intent was
presumed upon proof of the other element of the crime, that is, of causing the
death of another person. In the case at bar, however, the basic facts which must
be proved in order to trigger the presumption, such as that the defendant had
failed to hire qualified personnel, are not part of any other element of the offense.
The distinction which the State notes between Francis and Sandstrom and
the instant case, while accurate, is irrelevant. The presumption in subsection (c)
allows the State to avoid proving intent by proving other issues. The defendant is
then required to bear some burden (either the burden of production or the burden
of persuasion) to rebut the presumption. If the defendant fails to carry this burden,
the trier of fact is required to find that the defendant did not intend to do the
promised work, even if the State has offered no evidence that directly shows such
an intent. We have held that such burden-shifting violates the due process clause.
The source of the predicate facts for the presumption, i.e., whether or not they are
already an element of the crime, is constitutionally insignificant.

III. Severability
Having determined that the presumption portion of the Act is
unconstitutional, we must determine whether this portion of the statute is severable
from the rest of the Act. The statute does not contain a specific severability
provision. Nevertheless, under the general severability statute (5 ILCS 70/1.31
(West 1996)), as well as the prior decisions of this court (see, e.g., People v.
Warren, 173 Ill. 2d 348, 371 (1996)), severability may still be appropriate.
Generally, severability is a question of legislative intent. Warren, 173 Ill. 2d at 371. The test for determining whether severance is possible, as articulated
in Fiorito v. Jones, 39 Ill. 2d 531, 540-41 (1968), and recently repeated in
Warren, 173 Ill. 2d at 371-72, is
" `whether the valid and invalid provisions of the Act are "so
mutually `connected with and dependent on each other, as
conditions, considerations or compensations for each other, as to
warrant the belief that the legislature intended them as a whole
***.' " [Citation.] The provisions are not severable if "they are
essentially and inseparably connected in substance." [Citation.]' "
Warren, 173 Ill. 2d at 371-72, quoting Fiorito, 39 Ill. 2d at 540.
In addition to this test, we also consider whether the legislature would have passed
the valid portions of the statute without the invalid portions. Warren, 173 Ill. 2d
at 372. If not, then the whole statute must be stricken.
With these considerations in mind, we hold that the presumption provision
can be severed from the rest of the Act. The General Assembly originally passed
the statute without the presumption provision. See Ill. Rev. Stat. 1987, ch. 121«,
par. 1603. The presumption was added six years later. See 815 ILCS 515/3(c)
(West 1992). Therefore, we believe that the General Assembly would prefer to
leave the remaining portions of the statute in effect without the presumption,
rather than have the entire statute stricken. Moreover, the remainder of the Act
may operate without the presumption provision, because the presumption provision
operates only to ease the State's burden of prosecution under the Act. Therefore,
while we strike subsection (c) of the statute, the remainder of the statute remains
intact and valid.

IV. Collateral Estoppel
The last issue for our consideration is whether defendant may be retried
on the home repair fraud count without the use of the presumption. "The doctrine
[of collateral estoppel] bars relitigation of factual issues which have necessarily
been decided in a former proceeding between the same parties." People v. Scott,
148 Ill. 2d 479, 555 (1992). At trial, the circuit court found that the State had not
met its burden of proving that the defendant did not intend to perform when he
entered into the contract and, as a result, acquitted defendant on the theft count.
Because we have invalidated the presumption contained in subsection (c), a court
in a retrial under the Act would be left to determine the issue of defendant's intent
precisely as it was decided under the theft count at the original trial. Since this
issue has been decided once, it may not be relitigated.

CONCLUSION
For the reasons stated above, the judgment of the appellate court is
affirmed.

Affirmed.

JUSTICE MILLER, specially concurring:
I join in the judgment of the court and the analysis of the federal
constitutional issue. Because the case is decided on federal constitutional grounds,
there is no need for us to consider here whether the Illinois Constitution
independently requires the same result. Accordingly, I do not join the brief
discussion in the majority opinion regarding a state constitutional basis for our
decision in this case. Slip op. at 11.