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People v. Thoennes
State: Illinois
Court: 4th District Appellate
Docket No: 4-00-0776 Rel
Case Date: 10/09/2002

NO. 4-00-0776

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,
                        Plaintiff-Appellee,
                        v.
SEAN MICHAEL THOENNES, 
                        Defendant-Appellant.
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Appeal from
Circuit Court of
McLean County
No. 99CF1482

Honorable
Donald D. Bernardi,
Judge Presiding.


JUSTICE TURNER delivered the opinion of the court:

In January 2000, defendant, Sean Michael Thoennes, wascharged with the offense of false personation of a peace ofofficer (720 ILCS 5/32-5.1 (West 1998)). Following a jury trialin April 2000, defendant was convicted and sentenced to 24months' probation. On appeal, defendant argues the false personation of a peace officer is unconstitutional as it is violativeof substantive due process and overbroad. We affirm.

I. BACKGROUND

In January 2000, a grand jury returned an indictmentagainst defendant, along with his cousin, Robert Thoennes (not aparty to this appeal), charging him with the offense of falsepersonation of a peace officer, a Class 4 felony, pursuant tosection 32-5.1 of the Criminal Code of 1961 (Criminal Code) (720ILCS 5/32-5.1 (West 1998)) in that he knowingly and falselyrepresented himself to be a peace officer of any jurisdiction byidentifying himself as a police officer to Jessica Hoelscher.

A consolidated jury trial commenced in April 2000. Jessica Hoelscher testified she was driving her mother's Exploreron December 27, 1999, around midnight. Her friend, KatyBenjamin, was also in the vehicle as they headed west on CollegeAvenue in Normal. While driving, Hoelscher noticed two males ina Camaro traveling next to them. She indicated the two malesproceeded to repeatedly speed up and slow down and later theCamaro's passenger "flipped [her] off." Upon approaching a setof railroad tracks, the Camaro swerved in front of the Explorer,and Hoelscher stated she "braked hard." Thereafter, she decidedto write down the license plate number of the Camaro and reportit to the police. Hoelscher then followed the Camaro to aresidential neighborhood where both vehicles stopped. Sheindicated the passenger of the Camaro, identified as defendant,exited the vehicle and came up to her window. An "angry" conversation took place with defendant using profanities. Aftertelling defendant and the Camaro driver, Robert Thoennes, thatshe wanted the license plate number, Hoelscher testified thatdefendant stated "he was a police officer." Hoelscher stated shedisbelieved the two males were police officers and asked forproof. She stated Robert Thoennes entered his car and "pulledout what appeared to be a badge." After requesting their names,defendant responded his name was "Officer Jack Off" and made amotion as if he was masturbating. Hoelscher then drove offwithout getting the Camaro's license plate numbers. The occupants of the Camaro then began following the Explorer, andHoelscher indicated she was "slightly" concerned for her safety. Hoelscher testified she was able to take down the Camaro'slicense plate number and call the police after the Camaro haddriven into someone's yard and hit a mailbox.

Katherine Benjamin testified she was traveling with herfriend Jessica Hoelscher on the night of December 27, 1999. Shestated the passenger of the Camaro "flicked us off" and later thecar swerved into their lane causing Hoelscher to brake. Benjaminstated Hoelscher proceeded to follow the Camaro to get thelicense plate number and report it to the police. Once the twovehicles stopped, defendant exited the Camaro and began yellingat them. Thereafter, all the parties involved engaged in ashouting match and traded profanities. At one point, RobertThoennes reached into his car and quickly flashed a badge statinghe was a police officer. Benjamin indicated the shiny smoothmaterial appeared to be a badge. She also testified defendantstated his name was "Officer Jack Off" and made a motion with hishands near his crotch. After Hoelscher and Benjamin questioneddefendant's use of profanity, defendant stated he could doanything he wanted because they had "the law behind us." Shealso stated the driver told her and Hoelscher that they weregoing to spend the night in jail. After the males in the Camarobegan following them, Benjamin stated she called 9-1-1 because"we didn't feel safe."

Defendant testified on his own behalf. He stated hewas a passenger in a Camaro that was being followed by a FordExplorer. After both vehicles stopped, the occupants of bothvehicles exchanged heated language. After becoming frustratedwith the argument with the girls, defendant stated he and hiscousin left. Thereafter, they were stopped by a Normal policeofficer. On cross-examination, defendant stated he did not knowthere was a badge in the car until the police officer asked aboutit.

Robert Thoennes testified that at the time of theincident he worked for Wackenhut Security. He indicated he worea uniform and a badge while on duty. On December 27, 1999, hestated he and his cousin confronted the females in the Explorer. He began writing the Explorer's license plate number down "tokind of scare them" so they would not follow them any longer. Robert then proceeded back to the Camaro to retrieve a cellphone. He testified he held up a gold cell phone with a metallicfinish and said he was calling the police. He stated he had twobadges in his car that night, but he never stated he was a policeofficer or showed the girls a badge.

Following closing arguments, the jury returned a guiltyverdict as to defendant and Robert Thoennes of false personationof a police officer. In May 2000, defendant filed a motion fornew trial arguing, inter alia, that section 32-5.1 of the Criminal Code was unconstitutional, which the trial court denied. Thereafter, the trial court sentenced defendant to 24 months'probation.

In July 2000, defendant filed a motion to reconsiderthe trial court's denial of his posttrial motion alleging section32-5.1 of the Criminal Code was unconstitutional. 720 ILCS 5/32-5.1 (West 1998). The trial court found the statute was notunconstitutional and denied defendant's motion. The trial courtthen reimposed defendant's sentence of 24 months' probation. This appeal followed.

II. ANALYSIS

A. Substantive Due Process

Defendant argues the false personation of a peaceofficer statute is unconstitutional because it does not requirethe false personation be committed for an unlawful or improperpurpose which criminalizes a substantial amount of innocentconduct and violates state and federal substantive due processguarantees. We disagree.

All statutes are presumed constitutional. In re R.C.,195 Ill. 2d 291, 296, 745 N.E.2d 1233, 1237 (2001). The partychallenging the constitutionality of the statute bears the burdenof clearly establishing the alleged constitutional violation. R.C., 195 Ill. 2d at 296, 745 N.E.2d at 1237.

"Pursuant to its police power, the legislature has wide discretion to establish penalties for criminal offenses, but this discretion is limited by the constitutional guarantee that a person may not be deprived ofliberty without due process of law. In reK.C., 186 Ill. 2d 542, 550 (1999). Whenlegislation does not affect a fundamentalconstitutional right, the test for determining whether it complies with substantive dueprocess requirements is the rational basistest. People v. Hamm, 149 Ill. 2d 201, 216(1992). Under this test, a statute will beupheld if it 'bears a reasonable relationshipto a public interest to be served, and themeans adopted are a reasonable method ofaccomplishing the desired objective.' Peoplev. Adams, 144 Ill. 2d 381, 390 (1991)." People v. Wright, 194 Ill. 2d 1, 24, 740N.E.2d 755, 766-67 (2000).

In People v. Wick, 107 Ill. 2d 62, 65-67, 481 N.E.2d676, 678-79 (1985), the supreme court found a portion of theaggravated arson statute (Ill. Rev. Stat. 1981, ch. 38, par. 20-1.1(a)(3)) unconstitutional as it violated due process. Thestatute provided that a person committed aggravated arson, aClass X felony, when he knowingly damaged a building by fire anda fireman or policeman was injured while present at the scene. Wick, 107 Ill. 2d at 64, 481 N.E.2d at 678. The court stated, inpart:

"Because aggravated arson as defined bythe statute does not require an unlawfulpurpose in setting a fire, however, the statute as presently constituted sweeps toobroadly by punishing innocent as well asculpable conduct in setting fires. Underthis statute, for example, a farmer who demolishes his deteriorated barn to clear spacefor a new one is liable for a Class X penaltyif a fireman standing by is injured at thescene. If the statute's purpose is to provide a severe penalty for arsonists whoseconduct results in personal injury to firemenor policemen, the statute does not bear areasonable relationship to its purpose because the penalty is not limited to arsonists." Wick, 107 Ill. 2d at 66, 481 N.E.2d678-79.

Similarly, in People v. Zaremba, 158 Ill. 2d 36, 42-43,630 N.E.2d 797, 800 (1994), the supreme court held a portion ofthe theft statute did not bear a rational relationship to alegitimate state purpose. The statute in question stated aperson committed theft when he knowingly exerted "'control overproperty in the custody of any law enforcement agency which isexplicitly represented to him by any law enforcement officer orany individual acting in behalf of a law enforcement agency asbeing stolen.'" (Emphasis omitted.) Zaremba, 158 Ill. 2d at 39-40, 630 N.E.2d at 798, quoting Ill. Rev. Stat. 1989, ch. 38, par.16-1(a)(5). The supreme court stated that, although the statute's purpose was to enable officers to conduct undercoveroperations to break up fencing operations, it was not reasonablyrelated to that purpose because it could "potentially subject[]wholly innocent conduct to punishment." Zaremba, 158 Ill. 2d at42, 630 N.E.2d at 800. For example, the court noted defendant'sargument that the statute could be applied to the innocentconduct of a police evidence technician's lawful custody of knownstolen property given to him by an officer for safekeeping. Zaremba, 158 Ill. 2d at 38-39, 630 N.E.2d at 798.

In In re K.C., 186 Ill. 2d 542, 553, 714 N.E.2d 491,497 (1999), the supreme court held sections 4-102(a)(1) and 4-102(a)(2) of the Illinois Vehicle Code (Vehicle Code) violateddue process by "potentially punish[ing] wholly innocent conductwithout requiring proof of a culpable mental state." The provisions of the Vehicle Code read, in relevant part:

"(a) It is a violation of this Chapterfor:

(1) A person, without authority to doso, to damage a vehicle or to damage or remove any part of a vehicle;

(2) A person, without authority to doso, to tamper with a vehicle or go in it, onit, or work or attempt to work any of itsparts, or set or attempt to set it in motion." 625 ILCS 5/4-102 (West 1996).

The supreme court, citing Zaremba and Wick, found the sections ofthe Vehicle Code were capable of punishing wholly innocentconduct. K.C., 186 Ill. 2d at 551-52, 714 N.E.2d at 496-97. Thecourt noted a Good Samaritan could violate the statute forentering an unlocked car to turn off the headlights, or a youngballplayer could be branded a criminal for an inadvertent linedrive through the neighbor's windshield. K.C., 186 Ill. 2d at552-53, 714 N.E.2d at 497.

In the case sub judice, section 32-5.1 of the CriminalCode states "[a] person who knowingly and falsely representshimself to be a peace officer of any jurisdiction commits a Class4 felony." 720 ILCS 5/32-5.1 (West 1998). The statute exists toprotect "citizens who would be harmed or deceived by those actingunder the color of authority." People v. Ellis, 296 Ill. App. 3d862, 866, 696 N.E.2d 1, 3 (1998). However, this is not necessarily the sole purpose of the statute nor does it require thepossibility of harm to a citizen for an offender to be guilty ofthe crime. People v. Reyes, 328 Ill. App. 3d 918, 929, 768N.E.2d 374, 384 (2002). It is clear the legislature's purpose inenacting section 32-5.1 was to prevent the public from beingdeceived into believing an individual who represents himself tobe a peace officer has the authority to act in an officialcapacity when no such authority exists. This is so even if theimpersonator has no criminal purpose in mind.

A person who knowingly and falsely represents himselfto be a peace officer can potentially create a dangerous situation for the unknowing public. For example, a motorist who hasjust witnessed a serious accident may request assistance from animpersonator believing the impersonator has the capacity to callimmediately for emergency services. If the actions of theimpersonator in receiving the request for assistance wouldreasonably lead the motorist to believe the impersonator was apeace officer, a violation would have occurred. The unsuspectingmotorist might well go on her way believing that her request forassistance has been acted upon.

We are unpersuaded by defendant's argument that thestatute potentially allows for punishment of innocent conduct. By way of example, defendant argues that an actor playing therole of a peace officer in a movie or a person masquerading as apeace officer at a Halloween party could potentially be chargedunder the statute. We disagree. The statute allows for criminalprosecution only if a person "knowingly and falsely representshimself to be a peace officer." (Emphasis added.) 720 ILCS 5/32-5.1 (West 1998). The cardinal rule of statutory construction isto give effect to the language and intent of the legislature. People v. Hicks, 164 Ill. 2d 218, 222, 647 N.E.2d 257, 259(1995). In determining legislative intent, words in the statuteare to be given their plain and ordinary meaning. Hicks, 164Ill. 2d at 222, 647 N.E.2d at 259. Thus, a court must considerevery statutory provision and attach a reasonable meaning toevery word or phrase. In re S.P., 323 Ill. App. 3d 352, 357, 751N.E.2d 1270, 1274 (2001). The legislature chose to use the words"knowingly and falsely" in conjunction. Section 4-5 of theCriminal Code states:

"A person knows, or acts knowingly orwith knowledge of:

(a) The nature or attendant circum-stances of his conduct, described by thestatute defining the offense, when he isconsciously aware that his conduct is of suchnature or that such circumstances exist. Knowledge of a material fact includes awareness of the substantial probability that suchfact exists.

(b) The result of his conduct, describedby the statute defining the offense, when heis consciously aware that such result ispractically certain to be caused by his conduct.

Conduct performed knowingly or withknowledge is performed wilfully, within themeaning of a statute using the latter term,unless the statute clearly requires anothermeaning." 720 ILCS 5/4-5 (West 1998).

We further note that a plain and ordinary definition of "false"is "tending to deceive or mislead; deceptive." Webster's CollegeDictionary 469 (2d ed. 1997). An actor or Halloween masquerader,contrary to defendant's assertion, does not knowingly and falselyrepresent himself to be a peace officer. There is no consciousintent on either's part to deceive the public that they areacting in the official capacity of a police officer. Our interpretation of the statute is consistent with and furthers threeimportant rules: "(1) a court must ascertain and give effect tothe legislature's intent in enacting the statute [citation]; (2)in construing a statute, this court has a duty to affirm thestatute's validity and constitutionality if reasonably possible[citation]; and (3) an interpretation that renders a statutevalid is always presumed to have been intended by the legislature[citation]." People v. Bailey, 167 Ill. 2d 210, 225, 657 N.E.2d953, 960-61 (1995). Accordingly, we hold the statute does bear areasonable relationship to the public interest served, and themeans adopted are reasonable to accomplish the desired objective.

Our holding is not inconsistent with People v.Rinehart, 81 Ill. App. 2d 125, 128-29, 225 N.E.2d 486, 488-89(1967). In that case, a watchman, wearing a uniform, was standing near his car, which was equipped with Mars lights. Althoughhis appearance may have given the impression that he was apeace officer, he did not knowingly and falsely represent himselfto be one. Hence, a conviction under section 32-5.1 could notstand. Rinehart, 81 Ill. App. 2d at 129, 225 N.E.2d at 488-89.

B. Overbreadth Doctrine

Defendant also argues section 32-5.1 of the CriminalCode violates the constitutional guarantees of freedom ofexpression because it is overbroad. We disagree.

"The doctrine of overbreadth is designed to protectfirst amendment freedom of expression from laws written sobroadly that the fear of punishment might discourage people fromtaking advantage of that freedom." People v. Anderson, 148 Ill.2d 15, 26, 591 N.E.2d 461, 466 (1992), citing Broadrick v.Oklahoma, 413 U.S. 601, 611-12, 37 L. Ed. 2d 830, 839-40, 93 S.Ct. 2908, 2915-16 (1973), and Gooding v. Wilson, 405 U.S. 518,521, 31 L. Ed. 2d 408, 413, 92 S. Ct. 1103, 1105 (1972). TheUnited States Supreme Court has stated that "'particularly whereconduct and not merely speech is involved, we believe that theoverbreadth of a statute must not only be real, but substantialas well, judged in relation to the statute's plainly legitimatesweep.'" Hill v. Colorado, 530 U.S. 703, 732, 147 L. Ed. 2d 597,621, 120 S. Ct. 2480, 2498 (2000), quoting Broadrick, 413 U.S. at615, 37 L. Ed. 2d at 842, 93 S. Ct. at 2918. The doctrine isused sparingly, and an overbreadth challenge may be made "only ifthe statute is one that may inhibit the exercise of rights ofexpression or association protected by the first amendment." Bailey, 167 Ill. 2d at 226, 657 N.E.2d at 961.

We reject defendant's argument that the effect of thestatute's "sweeping" language is to ban the impersonation of apeace officer "regardless of the individual's motivation fordoing so." As stated previously, the statute's language requiresa person to "knowingly and falsely" (emphasis added) representhimself to be a peace officer. 720 ILCS 5/32-5.1 (West 1998). The legislature has a legitimate interest in preventing thepublic from being deceived by such an individual. Defendant'sargument that the statute will have a chilling effect on innocentconduct is based on broad speculation and fails to consider themeaning of the statutory language and its purpose. Section 32-5.1 is not so broadly drafted that possible unconstitutionalapplications are real and substantial. Thus, defendant's argument must fail as section 32-5.1 is not unconstitutionallyoverbroad, and his conviction must be upheld.

III. CONCLUSION

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

McCULLOUGH, P.J., and STEIGMANN, J., concur.

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