No. 2--01--0279

JUSTICE KAPALA delivered the opinion of the court:

Following a bench trial, defendant, Willie Bell, was foundguilty of unlawful failure to register as a sex offender under theSex Offender Registration Act (Act or Registration Act) (730 ILCS150/1 et seq. (West 2000)). More specifically, defendant wasconvicted of failing to notify the proper authorities in writingwithin 10 days after he changed his residential address as mandatedby section 6 of the Act (730 ILCS 150/6 (West 2000)). Defendantappeals and contends that his conviction of unlawful failure toregister as a sex offender should be reversed because (1) rape isnot a sexually violent offense that required him to register underthe Act and (2) the State failed to prove him guilty beyond areasonable doubt. For the reasons that follow, we affirm.

The record reveals that in 1981, a jury found defendant guiltyof rape and other offenses. Defendant was subsequently sentencedto 30 years' incarceration. On March 11, 1996, defendant wasreleased from incarceration. On March 25, 1996, pursuant to theAct, defendant registered as a sex offender with the Du Page Countysheriff's department (sheriff's department). Defendant renewed hisregistration as a sex offender with the sheriff's department in1997, 1998, and in 1999. Defendant's 1999 renewal occurred onJanuary 14, 1999. At that time, defendant reported his residenceaddress as 2N565 N. Euclid Avenue in Glen Ellyn.

On March 17, 2000, the State charged defendant in a two-countindictment with unlawful failure to register as a sex offender inviolation of section 6 of the Act (730 ILCS 150/6 (West 2000)). Count I alleged that defendant failed to report in person to thesheriff's department within one year of his prior registration. Count II alleged that defendant failed to notify the sheriff'sdepartment in writing within 10 days of changing his residenceaddress.

At trial, David Lakim, a Du Page County deputy sheriff,testified that on January 3, 2000, he was on duty and was assignedto check the addresses of registered sex offenders in the county. Based on information in defendant's sexual offender file, Lakimwent to 2N565 N. Euclid Avenue in Glen Ellyn to determine whetherdefendant was living at that address. Jessica Fontino, a girl inher late teens, answered the door and told Lakim that her familyhad recently moved there and that no one by the name of Willie Belllived there. Lakim later gave this information to the detectivedivision of the sheriff's department.

David Sand, a detective with the sheriff's department,testified that his duties included taking the registrations and therenewal registrations of sex offenders in Du Page County. Sand was also in charge of maintaining the files of sex offendersregistered in the county. On January 12, 2000, Sand receivedinformation from a sheriff's deputy indicating that defendant mayhave changed his address. Sand consulted the sex-offender filesand determined that defendant's last known address was 2N565 N.Euclid Avenue in Glen Ellyn. Sand testified that the registrationrecords also showed that between January 14, 1999, and January 12,2000, defendant had not contacted the sheriff's department and thatno written notice had been received from defendant indicating achange of address.

Sand subsequently spoke on the telephone with residents of2N565 N. Euclid Avenue in Glen Ellyn. The residents told Sand thatthey had moved to that address on September 1, 1999. Sand thencontacted the Glen Ellyn post office and was informed thatdefendant had not left a forwarding address with the post office. Sand also contacted Susan DiLoardo, the realtor who had sold theproperty at 2N565 N. Euclid Avenue, to determine whether she hadany information regarding defendant's whereabouts.

When Sand arrived at work on January 31, 2000, there was atelephone message waiting for him. The caller identified himselfas "Mr. Bell" and stated that he was not due to register untilMarch and would be registering in Waukegan where he was planning tomove.

Sand further testified regarding the sex-offender registrationform that was completed when defendant renewed his registration asa sex offender on January 14, 1999. The form included a number ofprinted requirements and directions indicating that therequirements must be read to the registrant and that the registrantmust initial each requirement. Above the registrant's signature onthe form there is a statement that provides: "I have read and/orhad read to me, the above requirements. It has been explained tome and I understand my duty to register and that failure to do sois a criminal offense." Sand testified that the form thatdefendant signed on January 14, 1999, showed the initials "WB" nextto a requirement that stated: "You must, within 10 days of changingyour residence address, notify in writing the law enforcementagency with whom you last registered, of your new address."

On cross-examination, Sand acknowledged that March 2000 wouldbe exactly four years after defendant's release from prison andthat the phone call from defendant was apparently on defendant'sown initiative. Sand testified that he had assumed his duties ofoverseeing the county's sex-offender registration files andregistering sex offenders a little before the middle of 1999.

Susan DiLoardo testified that she was a real estate salesrepresentative who brokered the August 30, 1999, sale of the houselocated at 2N565 N. Euclid Avenue in Glen Ellyn. Prior to the saleof the house, DiLoardo had been acquainted with the owner, MaryJane Andrlike, and was also aware that Andrlike had a boarder wholived in the basement of the house. DiLoardo identified defendantas Andrlike's boarder. DiLoardo recalled that after the closing onAugust 30, 1999, she returned to the house with Andrlike. Defendant was present. The house was empty. Andrlike anddefendant then left.

On April 13, 2000, the trial court found defendant not guiltyof count I and guilty of count II. The trial court sentenceddefendant to three years' incarceration. Defendant's notice ofappeal followed.

On February 7, 2001, this court allowed defendant's motion toremand the cause to the circuit court for a hearing and a ruling ondefendant's motion to reconsider sentence. This court alsodismissed defendant's appeal as premature. On remand, the circuitcourt denied defendant's motion to reconsider sentence. Defendantthen filed a timely notice of appeal giving rise to this appeal. The only subject of this appeal is the trial court's finding ofguilt as to count II, which alleged that defendant failed to notifythe sheriff's department in writing within 10 days of changing hisresidence address.

On appeal, defendant first contends that his conviction shouldbe reversed because he was erroneously classified as a sex offenderand therefore was never required to register as a sex offenderunder the Act. Defendant acknowledges that he was convicted ofrape in 1981 and recognizes that his 1981 rape conviction is thepredicate offense that, in the State's view, requires him toregister as a sex offender under the Act. However, defendantmaintains that the State's view is erroneous. Defendant arguesthat the plain language of the Act shows that rape should not beconstrued as a "sex offense" that requires registration as a sexoffender under the Act.

The Act requires any person that it defines as a "sexoffender" to register as a sex offender with a local lawenforcement agency. Such a person must register as a sex offenderunder various circumstances, including the person's discharge,parole, or release from prison any time after January 1, 1996. 730ILCS 150/3(c)(4) (West 2000). Therefore, in view of defendant'srelease from prison on March 11, 1996, if the Act defines defendantas a sex offender, then he was required to register as a sexoffender under the Act.

The portion of the Act relevant to the facts of this casedefines a "sex offender" as any person who has been convicted of a"sex offense" as set forth in section 2(B)(1) of the Act. 730 ILCS150/2(A)(1)(a) (West 2000). Section 2(B)(1) lists a number ofspecific offenses that are defined as sex offenses. The listincludes criminal sexual assault, aggravated criminal sexualassault, criminal sexual abuse and aggravated criminal sexualabuse. 730 ILCS 150/2(B)(1) (West 2000). Section 2(B)(1) does notinclude rape among the listed offenses. Thus, defendant correctlyasserts that the Act does not expressly list rape as one of theoffenses that it defines as a sex offense.

However, the Act has a savings clause that also defines a sexoffense. The savings clause defines as a sex offense "[a]violation of any former law of this State substantially equivalentto any offense listed in subsection (B)(1) of this Section." 730ILCS 150/2(B)(2) (West 2000). Defendant acknowledges that, if thesavings clause is deemed to define rape as a sex offense, then hewould be a sex offender required to register as such under the Act. Not surprisingly, defendant argues that the savings clause shouldnot be deemed to define rape as a sex offense.

In support of his position, defendant relies heavily on the First District Appellate Court case of In re Detention ofLieberman, 319 Ill. App. 3d 1020 (2001). In Lieberman, therespondent was convicted in 1980 of a series of rapes. In January2000, prior to the respondent's entry into mandatory supervisedrelease, the State petitioned to have the respondent committed asa sexually violent person pursuant to the Sexually Violent PersonsCommitment Act (Commitment Act) (725 ILCS 207/1 et seq. (West1998)). After the circuit court denied the respondent's motion todismiss the petition, the respondent was granted leave to file aninterlocutory appeal. The certified question on appeal was whetherthe respondent's conviction of rape was a conviction of a sexuallyviolent offense under the Commitment Act. Lieberman, 319 Ill. App.3d at 1021.

The appellate court noted that, under the Commitment Act, thecommission of a "sexually violent offense" was a prerequisite fora finding that a person was a sexually violent person. At the timethe State filed its petition in Lieberman, the Commitment Act'sdefinition of a "sexually violent offense" included criminal sexualassault, aggravated criminal sexual assault, predatory criminalsexual assault of a child, and aggravated criminal sexual abuse,but did not include rape. Lieberman, 319 Ill. App. 3d at 1023-24. The appellate court concluded that, by omitting rape from the listof specific offenses that the Commitment Act defined as sexuallyviolent offenses, the legislature expressed an intent to limit thedefinition to the listed offenses. The appellate court alsoconsidered and rejected various arguments propounded by the State,including arguments that rape should be deemed a sexually violentoffense because the listed offenses were a continuation of or weresubstantially similar to the offense of rape. The appellate courttherefore answered the certified question in the negative.

Without more, Lieberman would be strong authority in supportof defendant's position in this case. However, our supreme courthas recently reversed the appellate court decision. In reDetention of Lieberman, No. 91344 (July 3, 2002). In its opinion,the supreme court agreed with the State's contention that thelegislature intended that the offenses of criminal sexual assaultand aggravated criminal sexual assault subsume the offense of rape. In reaching that conclusion, the court examined the legislativehistory of the act that repealed the offense of rape and createdthe offenses of criminal sexual assault and aggravated criminalsexual assault (Pub. Act 83--1067, eff. July 1, 1984). The courtalso compared the elements of the former offense of rape with theelements of the offenses of criminal and aggravated criminal sexualassault. Lieberman, slip op. at 9-12.

After finding that the offenses of criminal sexual assault andaggravated criminal sexual assault subsumed the former offense ofrape, the court stated:

"We conclude that because *** the Commitment Act defines theoffenses of criminal and aggravated criminal sexual assault as '[s]exually violent offense[s],' and because the formeroffense of rape is subsumed into criminal and aggravatedcriminal sexual assault, it follows that a conviction for thecrime of rape constitutes a 'sexually violent offense' underthe applicable version of the Commitment Act." Lieberman,slip op. at 12-13.

We believe that similar reasoning applies in this case. Here,as with the Commitment Act's definition of a sexually violentoffense, the Registration Act's definition of a "sex offense"expressly includes the offenses of criminal and aggravated criminalsexual assault. Because the former offense of rape has beensubsumed into the offenses of criminal and aggravated criminalsexual assault, it follows that a conviction of rape constitutes a"sex offense" under the Registration Act.

This conclusion is buttressed by the Registration Act'ssavings clause. After comparing the elements of rape with theelements of criminal and aggravated criminal sexual assault, thesupreme court concluded that the legislature intended that theelements of rape be subsumed into the new offenses of criminal andaggravated criminal sexual assault. Lieberman, slip op. at 12.Based on this conclusion, we believe that rape should be consideredto be substantially equivalent to the offenses of criminal andaggravated criminal sexual assault. This brings rape within thescope of the Act's savings clause (730 ILCS 150/2(B)(2) (West2000)).

For these reasons, we conclude that the Act defines rape as a"sex offense." Because defendant was convicted of rape, he wastherefore properly classified as a "sex offender" and was requiredto register as such under the Act. Accordingly, defendant is notentitled to the reversal of his conviction on the ground that theAct did not require him to register as a sex offender.

Defendant next contends that he is entitled to the reversal ofhis conviction because the State failed to prove him guilty beyonda reasonable doubt. Based on his analysis of the elements of theoffense as charged in count II, defendant asserts that the Statewas required to prove beyond a reasonable doubt (1) that he movedand (2) that he failed to notify the sheriff's department within 10days that he had moved. Defendant concedes that the Statepresented sufficient evidence to show that he moved on August 30,1999. However, defendant argues that the State's evidence was notsufficient to show that he failed to notify the sheriff'sdepartment, within 10 days of the move, that he had moved.

When a defendant challenges the sufficiency of the evidence ina criminal case, it is not the function of a reviewing court toretry the defendant. People v. Collins, 106 Ill. 2d 237, 261(1985). Rather, the relevant question is whether, after viewingthe evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elements ofthe crime beyond a reasonable doubt. Collins, 106 Ill. 2d at 261. The trier of fact has the responsibility to determine thecredibility of the witnesses, to resolve conflicts orinconsistencies in their testimony, to assess the weight to begiven to their testimony, and to draw reasonable inferences fromall of the evidence. See People v. Heard, 187 Ill. 2d 36, 84(1999); People v. Frieberg, 147 Ill. 2d 326, 360 (1992). Areviewing court should not reverse a criminal conviction unless theevidence is so unreasonable, improbable, or unsatisfactory that itcreates a reasonable doubt of the defendant's guilt. People v.McDonald, 168 Ill. 2d 420, 444 (1995).

Here, defendant was charged with violating the registrationrequirements of the Act by failing to notify the sheriff'sdepartment in writing within 10 days of changing his residenceaddress. Section 6 of the Act requires such notification byproviding, in relevant part:

"If any person required to register under this Article changeshis or her residence address *** he or she shall, in writing,within 10 days inform the law enforcement agency with whom heor she last registered *** ." 730 ILCS 150/6 (West 2000).

Thus, an element of the charged offense that the State was requiredto prove beyond a reasonable doubt was that defendant failed tonotify the sheriff's department, in writing, within 10 days of hischange of residence.

After carefully reviewing the record, we conclude that theevidence was sufficient to prove beyond a reasonable doubt thatdefendant failed to notify the sheriff's department in writing orin any other way within 10 days of his change of his residenceaddress. Officer Sand, the officer in charge of the sex-offenderregistration records, testified that the records showed that thesheriff's department never received a written notice from defendantregarding a change of his residence address and that defendant madeno contacts of any kind with the sheriff's department in the periodfrom January 14, 1999, through January 12, 2000. Viewing thisevidence in the light most favorable to the prosecution, a rationaltrier of fact could have inferred that defendant failed to notifythe sheriff's department in writing within 10 days of the change ofhis residence address. That was enough to prove the element inquestion in count II beyond a reasonable doubt.

Based on the foregoing, the judgment of the circuit court ofDu Page County is affirmed.

Affirmed.

GEIGER and CALLUM, JJ., concur.