May 16, 2001

The defendant, Laura Carroll, appeals her conviction ofcriminal trespass after she walked onto the property of a privatemedical clinic that performed abortions to distribute literatureregarding the alternatives to abortion. We reverse and remand.

The following facts are taken from the common-law record andthe stipulations of the parties. The record contains no transcriptof the trial proceedings.

At the jury trial, the evidence revealed that on or aboutAugust 18, 1999, the defendant walked onto the private propertythat housed an abortion clinic. "No trespassing" signs were postedoutside the clinic property.

Before coming onto the property, the defendant approached aman, who was accompanying a clinic patient, to discuss abortion andalternatives to abortion. The defendant went onto the clinicproperty after the man invited her onto the property to bring himliterature. A clinic employee then asked the defendant to leave,and the defendant immediately complied. However, the defendant waslater arrested and charged with criminal trespass of real propertyafter receiving notice that entry was forbidden. 720 ILCS 5/21--3(West 1998).

Cheryl Holcomb, the clinic's administrator, testified that"patients and their escorts are both routinely allowed to invitepersons of their choosing to the clinic without running afoul ofthe posted 'no trespassing' sign."

The parties stipulated that two witnesses, Jennifer Feuerbornand Dan Jackman, who were present at the scene, would havetestified that the unidentified man made two statements: "I willread the literature if you bring it to me," and "Yes, I am invitingyou onto the clinic property." The trial court sustained theState's objection to this testimony as based on hearsay.

The trial court gave the jury the following instructions:

"A person commits the offense of criminal trespass to realproperty when he knowingly enters upon the land of another orany part thereof without permission or invitation afterreceiving, prior to such entry, notice from the owner thatsuch entry is forbidden."

During deliberation the jury sent a question to the court asking,"Under the law, can only the owner of a property or his or herrepresentative have the authority to invite someone on theproperty?" Defendant had no objection to a flat answer of "No." However, the court replied with the following statement:"Permission or invitation may be given by an owner or occupier." The court refused the defendant's request to add a definition ofthe term "occupier."

The jury found the defendant guilty of criminal trespass toproperty, and the trial court sentenced the defendant to courtsupervision for 1 year and 30 hours of public service. The trialcourt denied the defendant's posttrial motions, and the defendantfiled this timely appeal.

On appeal, the defendant first argues that the trial courterred by excluding evidence as inadmissable hearsay that anunidentified man invited the defendant onto the property. TheState argues that the trial court did not abuse its discretion inexcluding the evidence. We disagree with the State.

Generally, out-of-court statements offered for the truth ofthe matter asserted are hearsay statements that are not admissible.People v. Jackson, 293 Ill. App. 3d 1009, 1015 (1997). However,statements offered for their effect on the listener or to explainthe subsequent course of conduct of another are not hearsay. People v. Brandon, 283 Ill. App. 3d 358, 365 (1996).

Here, the State had to prove, in part, that the defendant wasgiven notice that she was not permitted on the property. 720 ILCS5/21--3 (West 1998). The State presented evidence that "notrespassing" signs were posted on the property. However, it iswell settled that invitation is an affirmative defense to criminaltrespass. People v. Smith, 237 Ill. App. 3d 901, 907 (1992). Therefore, the defendant should have been permitted to rebut thisevidence with testimony that the defendant was invited to enter theproperty by a person impliedly authorized to extend thatinvitation. Here, the defendant testified that an unidentified maninvited the defendant to come onto the property to give himliterature. This explains why the defendant entered the propertyeven though the "no trespassing" signs were posted. The excludedevidence should have been admitted to allow the defendant to provethat the "no trespassing" notice was temporarily suspended for aspecific purpose and to establish the defendant's motive forentering the property, even though the "no trespassing" signs werevisible.

Further, the State concedes that one of the excludedstatements of the unidentified man, "I will read the literature ifyou bring it to me," was not offered for the truth of the matterasserted. Whether or not the unidentified man actually would haveread the literature was not important. Rather, the statement wasbeing offered for its effect upon the defendant. Regardless, bothstatements were offered to rebut the State's contention that thedefendant was given notice that the defendant was not permitted onthe property. Thus, the trial court abused its discretion inrefusing to admit the testimony.

The State argues that, even if the unidentified man hadinvited the defendant onto the property, this would not have beena valid defense because the unidentified man was not an owner or anoccupier. However, the State ignores the fact that the clinic'sadministrator provided uncontroverted testimony that patients'escorts are allowed to invite people onto the clinic propertywithout violating the "no trespassing" sign. Just as a person onleased premises at the invitation of a tenant is not a trespasser(City of Quincy v. Daniels, 246 Ill. App. 3d 792, 795 (1993)), aperson on the premises at the invitation of a person authorized toextend an invitation is also not a trespasser. Despite the State'sassertions, it cites no authority to the contrary. We have nodoubt that the owner or occupier of the clinic could have rescindedthe alleged invitation; however, there is nothing in the record toindicate that the defendant remained on the property after theinvitation was rescinded.

The State also argues that the defendant herself testifiedregarding these alleged statements and, thus, any error in failingto admit the testimony of the two other witnesses was harmless. The State's assertion is not supported by the record. There is notranscript of the proceedings at trial; however, the stipulationsentered into the record on the defendant's motion and withoutobjection by the State support the defendant's assertion that thetrial court barred all evidence regarding the statements of theunidentified man. However, even if the defendant was permitted totestify regarding these statements, surely the corroboratingtestimony of two independent witnesses was crucial to thedefendant's defense in this case. Accordingly, the trial courterred by refusing to admit into evidence testimony regarding thestatements made by the unidentified man, and the defendant isentitled to a new trial. People v. Quick, 236 Ill. App. 3d 446,453 (1992). We note that there was sufficient evidence presentedfor the jury to find the defendant guilty of the offense so thatjeopardy did not attach. Thus, we reverse and remand this case fora new trial. See People v. Banks, 281 Ill. App. 3d 417, 421(1996).

Next, the defendant argues that the trial court erred byinstructing the jury that only owners and occupiers could issue aninvitation or grant permission to enter the premises. We agreewith the defendant.

A trial court has wide discretion in deciding whether torespond to a jury question. Banks, 281 Ill. App. 3d at 422. Thecourt has a duty to answer the jury's question if clarification isrequested, the original instructions are incomplete, the jurors areconfused, or the question concerns a point of law arising from thefacts over which doubt or confusion exists. Banks, 281 Ill. App.3d at 422. However, in providing an explanation to a jury, a trialcourt may not misstate the law or infringe on the province of thejury. Banks, 281 Ill. App. 3d at 422. For example, in Banks, thejury asked for clarification regarding who had the authority togive the defendant permission to enter a home. The trial courtreplied that only the owners of the home, the parents of a minorchild living in the home, could grant permission. Banks, 281 Ill.App. 3d at 421. This court held that this explanation improperlyexcluded the possibility that the parents' minor daughter couldhave permitted the defendant to enter the house. Banks, 281 Ill.App. 3d at 422.

Similarly, in this case, the trial court provided anexplanation that excluded the consideration of evidence that a patient's escort properly gave the defendant permission to enterthe clinic property. Accordingly, on remand, the instructionsshould inform the jury that patients and their escorts may properlyinvite persons of their choosing onto the property.

The State asserts, without citing relevant authority, thatonly an owner or occupier can invite a person onto property. Wedisagree. The State essentially argues that, as a matter of law,an owner or occupier may not permit guests to invite others ontoproperty and that any invitation extended by another guestauthorized to extend an invitation is invalid as a matter of law. We find this assertion incorrect and unsupportable. Section 21--3(a)(2) of the Criminal Code of 1961, cited by the State, providesthat notice must come from an owner or occupier. 720 ILCS 5/21--3(a)(2) (West 1998). It does not preclude one invited person frominviting another person onto the property when properly authorizedto do so.

Further, the State's citation to Williams v. Nagel, 162 Ill.2d 542 (1994), is not dispositive. Unlike Williams, in this casethere was no agreement prohibiting the unidentified man frominviting the defendant onto the property for a limited purpose. Inaddition, the State's assertion that any invitation given waslimited to persons whose purpose was not antagonistic to theinterests of the clinic is without support in the record. Therecord does not indicate that patients' escorts and companions wereroutinely screened and asked to leave if they voiced antiabortionopinions or voiced their opinion that clinic fees were too high.

The judgment of the circuit court of Kane County is reversed,and the cause is remanded for a new trial.

Reversed and remanded.

GEIGER and GROMETER, JJ., concur.