People v. Davis
State: Illinois
Court: 3rd District Appellate
Docket No: 3-96-0781
Case Date: 08/01/1997
No. 3--96--0781
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Tazewell County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 96--CM--458
)
G. WAYNE DAVIS, ) Honorable
) Thomas G. Ebel
Defendant-Appellant. ) Judge, Presiding
_________________________________________________________________
JUSTICE HOLDRIDGE delivered the opinion of the court:
Defendant, G. Wayne Davis, was charged by information with two
counts of disorderly conduct (720 ILCS 5/26--1(a)(Michie 1994)), a
Class C misdemeanor. Following a jury trial, defendant was found
guilty of one count and acquitted on one count. By agreement of
the parties, the matter proceeded immediately to sentencing and the
trial court sentenced defendant to a $300 fine, ten days in the
county jail, with no day-for-day good time credit, and one year
probation. The trial court denied defendant's motion to stay
sentence and remanded defendant immediately into the custody of the
sheriff to serve the sentence. Defendant filed an immediate notice
of appeal and an emergency motion for stay of execution of
judgment. This court stayed the enforcement of five days of the
ten day sentence.
On appeal, defendant alleges reversible error on the following
issues: (1) he was not proven guilty beyond a reasonable doubt of
disorderly conduct; (2) the trial court abused its discretion in
sentencing him to serve time in the county jail; and (3) his right
to due process was violated by the trial court's denial of his
statutory right to credit on his jail sentence for good behavior.
For the following reasons, we affirm defendant's conviction and
sentence, and reverse the trial court's ruling denying defendant
credit for good behavior.
FA CTS
This matter concerns a long running feud between two
commuters, who despite their mutual animosity, both continued to
travel the same route at the same time each morning on their way
from their homes in Delevan, Illinois to their work in Peoria,
Illinois.
At trial, the complainant, Beverly Larson, testified that
beginning in October 1995 defendant began to "harass" her on her
commute to work each morning by doing such things as tailgating her
car with his, positioning his car in front of hers while travelling
down a two-lane road and then slowing down so that she could not
pass, and following her two work, even to the point of running a
red light to keep up with her. On one occasion, she returned to
her car after work to find a note on her windshield, written by the
defendant, which criticized her driving habits.
As to Count I of the information, complainant testified that
on the morning of January 19, 1996, she was travelling her usual
route to work when she stopped to assist a stranded motorist whom
she recognized as a friend. As complainant was getting in her car
to continue on her way to work, she recognized defendant's car pass
her travelling at about 60 m.p.h. within the flow of traffic. She
waited until defendant had passed out of sight before she proceeded
on her way. As she rounded a curve in the road a short distance
from where she had stopped to help her friend, she discovered that
defendant had "slowed way down" as if to wait for her to catch up
with him.
Complainant quickly caught up with defendant, although she
slowed her car so as to maintain approximately two car lengths
between their cars. Soon both cars approach a controlled
intersection. According to complainant's testimony:
"A. When we got to Route 9, there was a lot
of traffic and I got stopped behind him at the stop
sign. There's a median to the left and a right
turn lane that goes to the right. There were cars
in the right turn lane and [defendant] was in front
of me and my vehicle was behind his and there was a
car coming up behind me. He got out of his vehicle
and came back to my car. ***"
* * *
"A. I locked my doors real quick and rolled
my windows up. He said, 'I'm going to be down
where you work today,' and I shrugged my shoulders
like this. He said 'I want you to stop tailgating
me and stop harassing me.' I cracked my window and
said 'Just get back in your car and go to work.' I
said, 'I'm not tailgating you.' I said 'get back
in your car and go to work.' He said some other
things, and I said, 'Don't ever leave a note on my
car again.' He said, 'Lady, I can go where ever I
want and do whatever I want.' "
According to complainant, defendant walked back to his car and
drove away after she picked up her car phone as if to place a call.
Complainant further testified that defendant spoke in a loud voice,
but was not yelling, that he used no obscenities, and that she
could not recall him using any hand gestures. She testified that
she was very shaken by the encounter.
Defendant's testimony concerning the incident was as follows:
"A. When we got to the intersection *** of
Route 9 and Springfield Road *** she was tailgating
me and following me to[o] close, and I got out and
told her. ***
Q. So you stopped at the intersection; is
that correct?
A. Correct.
Q. What did you do?
A. Well, I got out of my car and tried to
reassure her that I was not going to follow her
that morning because I had to go very close to
where she parked her car. I didn't know where she
worked, but I knew where she parked her car, and I
tried to reassure her that I was not following her
and I tried to tell her why don't you quit
tailgating; just go away and leave me alone. This
has been going on for months.
Q. Were those your exact words?
A Yes.
* * *
Q. And did she say anything in response?
A. She said that--she seemed very upset and
yelled out `I'm going to get you. I'm going to get
you.'
Q. And did you make any response?
A. No, I left. *** She was getting very
upset. She refused to talk to me. There was no
point in going any further."
The jury convicted defendant of disorderly conduct based upon
this incident.
Count II was based upon an incident that occurred on February
8, 1996. According to complainant's testimony, defendant overtook
her car on the two lane road, and alternatively sped up and slowed
down as the two proceeded toward the interstate leading into
Peoria. After the two cars merged with interstate traffic,
complainant passed defendant. However, defendant soon overtook
complainant, and as their cars were passing, defendant took
complainant's photograph. The jury acquitted defendant of the
charge of disorderly conduct on count II.
In rebuttal, the People put on testimony from a witness who
testified that defendant had tailgated her while driving the same
route from Delevan to Peoria.
Following the jury verdict, defendant waived a pre-sentence
report, and requested that the trial court immediately proceed to
sentencing. The People offered no evidence at sentencing. The
defendant testified that he had no criminal record, was married,
and operated his own business selling dental equipment. The People
sought the maximum sentence, including 30 days incarceration in the
county jail, justifying the request by stating that the defendant's
conduct was egregious and opined that the defendant had committed
perjury in his trial testimony.
The trial court announced that the sentence imposed was based
upon the severity of the offense, the fact that the incident was
part of a "pattern of harassment" and the defendant's apparent lack
of remorse.
Following the suggestion of the assistant State's Attorney,
the judge announced that defendant would be required to serve the
entire 10 day sentence and he would receive no credit for "good
time." Defendant's motion to stay imposition of sentence was
denied and defendant was remanded to the immediate custody of the
sheriff. Defense counsel did not file a post-trial motion, but
instead filed an immediate appeal and an emergency motion seeking
a stay of the imposition of sentence. This court granted the
emergency motion and the defendant was released from the county
jail after serving five days.
ANALYSIS
Defendant first maintains on appeal that he was not proven
guilty beyond a reasonable doubt of the charge of disorderly
conduct. Defendant was charged under section 26--1(a)(1) of the
Criminal Code of 1961, which provides that a defendant commits the
offense of disorderly conduct when he knowingly "[d]oes any act in
an unreasonable manner as to alarm or disturb another and to
provoke a breach of the peace." 720 ILCS 5/26--1(a)(1) (Michie
1994).
Defendant maintains that his actions at the intersection on
the morning of January 19, 1996, could neither alarm or disturb
another person, nor constitute a breach of the peace. We disagree.
When assessing the sufficiency of the evidence of a criminal
offense, a court of review must ask whether the evidence, viewed in
the light most favorable to the prosecution, is sufficient to
convince any rational trier of fact that the elements of the
offense have been proved beyond a reasonable doubt. People v.
Collins, 106 Ill. 2d 237, 261 (1985). We believe that the evidence
here sufficed to uphold defendant's conviction.
First, the evidence, when viewed in the light most favorable
to the prosecution, establishes that defendant knowingly committed
an act in an unreasonable manner so as to alarm or disturb another,
when he stopped his car in the roadway, thus blocking
complainant's passage, and essentially trapping her in her car
while he approached her. Complainant testified that she was
alarmed and disturbed by defendant's action. Under the particular
circumstances of the past history these two individuals had
accumulated, any rational trier of fact could easily conclude that
the complainant was alarmed or disturbed by defendant's actions.
Likewise, the evidence, when viewed in the light most
favorable to the prosecution, establishes a breach of the peace.
Although there is no evidence to suggest that defendant made overt
threats against claimant nor used profane or abusive language, it
is well-settled that a breach of the peace can occur, even in the
absence of such actions or language. See, People v. Davis, 82 Ill.
2d 534 (1980); People v. Allen, Ill. App. 3d (4th. Dist.
1997)(No. 4--95--0156, filed June 2, 1997); People v. D.W., 150
Ill. App. 3d 729 (1986).
In Davis, the defendant entered the home of an 81-year-old
women (it was disputed whether the defendant was invited.) The
woman had previously sworn out a complaint against the defendant's
brother. The defendant waived sheets of paper at the women and
said, "`If [my brother goes to jail], Miss Pearl, you know me.'"
Davis, 82 Ill. 2d at 536. The supreme court held that the
defendant's vague threat fell squarely within the conduct
proscribed by the disorderly conduct statute, which was intended to
guard against "`an invasion of the right of others not to be
molested or harassed, either mentally or physically, without
justification.'" Davis, 82 Ill. 2d at 538.
We find Davis to be particularly instructive. In Davis, the
defendant intruded upon the personal space of the complainant and
made a statement, which if taken out of the context of the parties'
prior relationship would not have seemed particularly menacing.
However, the context of the parties' prior relationship, i.e.
complainant's swearing out a complaint against the defendant's
brother, and the location of the confrontation, raised the actions
and words of the defendant to the level of a breach of the peace.
Likewise, in the matter sub judice, defendant's actions
blocking complainant's way with his car, forcing her to remain
behind him in her car, approaching her car on foot, and forcing her
to listen to his comments about their disagreements and her driving
habits, placed in the context of their previous relationship, was
a form of harassment sufficient to constitute a breach of the
peace. Davis, 82 Ill. 2d at 538. We find, therefore, that
defendant was proven guilty beyond a reasonable doubt of the
offense of disorderly conduct.
We next address defendant's contention that his sentence was
excessive. It is well-settled that the standard to be applied in
determining whether a sentence is excessive is whether the trial
judge abused his or her discretion in imposing it. People v.
LaPointe, 88 Ill. 2d 482 (1981). A sentence within statutory
limits will not be deemed excessive unless it is greatly at
variance with the spirit and purpose of the law or manifestly
disproportionate to the nature of the offense. People v. Cabrera,
116 Ill. 2d 474, 493-94 (1987). It is not the function of a
reviewing court to serve as a sentencing court (People v.
Perruquet, 68 Ill. 2d. 149 (1977)), nor should a reviewing court
substitute its judgment for that of the trial court merely because
it would have balanced the appropriate factors differently. People
v. Streit, 142 Ill. 2d 13 (1991). Moreover, it is well-settled
that it is presumed that a sentencing judge considered evidence
offered in mitigation. People v. Sawyer, 139 Ill. App. 3d 383
(1985).
After carefully reviewing the record, we cannot say that the
trial court abused its discretion in sentencing defendant to serve
10 days in the county jail. Although it is difficult to determine
from the record the exact nature of the weighing of aggravation and
mitigation exercised by the trial court, and we might have balanced
the appropriate factors differently, we cannot say that the
sentence was manifestly disproportionate to the nature of the
offense. The maximum penalty for disorderly conduct is a fine of
$500 and incarceration in the county jail for 30 days. 720 ILCS
5/26--1(b) (Michie 1994). Defendant's sentence was well within the
range for the offense. People v. Menssen, 41 Ill. App. 3d 766
(1976).
Defendant lastly maintains that the trial court's order
denying him day-for-day credit for good behavior was erroneous.
The People contend defendant waived this issue by not raising it
before the trial court. However, in People v. Nixon, 278 Ill. App.
3d 453 (1996) and People v. Scott, 277 Ill. App. 3d 565 (1996),
this court held that the waiver rule would not be applied to deny
a defendant his clear, statutory right. See also, People v.
Bailey, 235 Ill. App. 3d 1 (4 Dist. 1992)(good behavior allowance
is a right afforded by statute which cannot be waived by a failure
to object at trial or in a post-trial motion). We continue to
adhere to that holding.
We agree with the defendant's contention that his clear
statutory right to credit for good time was violated by the trial
court's order. Section 3 of the County Jail Good Behavior
Allowance Act (the Act) (730 ILCS 130/3 (Michie 1994)) mandates
that persons sentenced to county jail, shall be entitled to day-
for-day credit for good behavior, unless the defendant: (1)
inflicted physical harm upon another in committing the offense for
which he is confined; (2) is serving a mandatory minimum sentence;
(3) is sentenced for a felony to probation or conditional discharge
where the condition is to serve a sentence of periodic
imprisonment; or (4) is sentenced under an order of court for civil
contempt. Here, it is abundantly clear that none of the exceptions
enumerated in the Act apply. The trial court, therefore, clearly
exceeded its authority by including in its order a finding denying
defendant day-for-day credit under the Act.
Defendant maintains that the circumstances surrounding the
imposition of his sentence, i.e. the denial of good-time credit at
the apparent prompting of the assistant State's Attorney and the
immediate imposition of the sentence, suggests something untoward
on the part of the assistant State's Attorney and the trial judge.
We do not believe the record supports the defendant's claim,
however, and we do not expect to see such a clear contravention of
the Act in the future.
For the reasons stated, the judgment of the circuit court of
Tazewell County is affirmed. That portion of the order denying
defendant day-for-day credit for good behavior is reversed. The
cause is remanded to the circuit court to vacate that portion of
the order.
Affirmed in part, reversed in part and remanded with
directions.
McCUSKEY and MICHELA, JJ., concurred.
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