NO. 5-01-0932

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

JUSTICE KUEHN delivered the opinion of the court:

Michael A. Peterson has taken four brides. None of them have ever wanted to staymarried to him for very long. In 1996, his second wife, Carol, simply could not rid herselfof him without special help from the courts. When he ignored an order of protection thatprohibited contact with Carol, repeatedly driving by her residence, Peterson was prosecutedand convicted of violating the protective order. He was fined and placed on conditionaldischarge.

This case involves a different wife but presents a similar story. Peterson's fourth wife,Dawn, procured an order of protection prohibiting him from having any contact with her. Once again, Peterson ignored the court's authority. This time his disregard for an order ofprotection landed him in prison.

The evidence at the trial established the following facts.

Spurred by physical and mental abuse from her husband, Dawn Peterson sought court-ordered protection under the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 etseq. (West 2000)). A circuit judge entered a protective order on June 5, 2001, which, amongother things, prohibited Peterson from harassing or stalking his wife. Dawn was awardedtemporary exclusive possession of the marital residence located on the outskirts of Walsh,Illinois, a little town that lies southwest of Sparta, Illinois. Peterson was told by the courtthat he was not to have any contact with his frightened spouse.

Peterson moved into the Sparta Motel. Its location provided ample physicalseparation to easily avoid future contact with Dawn. Sparta was more than 10 milesnortheast of Walsh, and most of the larger southern Illinois communities that Peterson mighthave reason to visit lay north of Sparta. This was particularly true of Red Bud, Illinois. Itcould be easily reached by traveling northwest of Sparta on a state highway that went directlyto Red Bud. That highway, Route 154, would take Peterson in the opposite direction fromhis court-protected spouse's residence.

According to Peterson, Red Bud provided the nearest access to Amoco gasoline,Peterson's fuel of choice. On June 9, 2001, just four days after the protective order issued,Peterson drove to Red Bud. The Conoco station a few blocks from the Sparta Motel wouldsimply not do.

Peterson's decision to drive more than 20 miles to replenish the source of power forhis 1996 Monte Carlo was rendered particularly suspicious by his course of travel. Insteadof steering a course northwest to Red Bud on Route 154, he started out in the oppositedirection, driving south on Route 4, another state highway. After driving several miles south,he turned due west on Schuline Road. Schuline Road is a county back road used to get fromSparta to Walsh or Evansville, Illinois. Several houses line the road, including the one thatPeterson used to live in-the one still occupied by his court-protected wife. Peterson had topass the house on his way to Red Bud to purchase Amoco gasoline. After passing the house,he had to traverse the towns of Walsh and Evansville. Ultimately his circuitous route oftravel to Red Bud took him to another state highway, Route 3. He headed north on Route 3,and after driving several additional miles, he arrived in Red Bud and filled his gas tank. Upon his return home, he again spurned a shorter drive via Route 154 and traveled a path thattook him by his erstwhile abode.

Two days prior to this Red Bud excursion, and only two days after the protective orderissued, Peterson had the misfortune of deciding to do some banking at the precise momentthat Dawn, his court-protected spouse, was poised to exit her vehicle on the bank parking lot. According to Dawn, she sped off as Peterson approached her. Peterson was trying to havea word with her but was left standing on the lot talking to himself. On June 9, 2001, thesame day that Peterson journeyed to Red Bud for gasoline, Dawn received a five-page letterin the mail. Its words echoed refrains that she had heard before. Peterson wrote, againpromising to make amends.

According to Dawn, Peterson drove by her house at least six times on June 9, 2001. The fifth time that Dawn saw him drive by, he saw her. She was standing at the kitchen sinkgiving their five-month-old baby a bath when he saw her at the kitchen window. Petersonbrought his car to an abrupt halt, got out, and assumed a position across Schuline Road thatmade him clearly visible to Dawn. He gestured to her, waving his hands about, to assurehimself that he had her full attention. Then, he braced his stance, placed his hands on hiships, and glared at Dawn for well over a minute. When Dawn went to report his presenceto the police, he left. However, he returned again after dark. Dawn saw him drive by ataround 9:30 p.m.

Peterson was still cruising roads in the vicinity of the home at 11 p.m., when he wasstopped by Shannon Wolff, a Randolph County deputy sheriff. Deputy Wolff had receivedthe report from Dawn, and when he asked Peterson about the reported behavior, Petersonadmitted driving by but not to seeing or having any contact with his court-protected spouse. He explained that he had to use Schuline Road earlier in the day in order to buy Amocogasoline in Red Bud.

Peterson denied that he had repeatedly driven by Dawn's house. He also denied thathe had gotten out of his car. He did admit that, by happenstance, he saw her at the bank afew days earlier, but he denied that he had made any approach to engage in conversation. A Randolph County jury heard these facts and returned a guilty verdict on the chargeof violating an order of protection. The judge sentenced Peterson to a three-year prison term. This appeal ensued.

The State's information alleged that Peterson's violation of the order consisted ofharassment and stalking, and the jury was instructed that the State had to prove harassmentand stalking beyond a reasonable doubt.

The somewhat unique nature of the charge calls for an initial observation. In mostcases of this kind, when a violation might fit an act of stalking as that term is defined underthe Criminal Code of 1961 (see 720 ILCS 5/12-7.3(a) (West 2000)), it will usually alsoconstitute an act of harassment as that term is defined under the Illinois Domestic ViolenceAct of 1986 (see 750 ILCS 60/214(b)(1) (West 2000)). Proof of harassment is all that isrequired in order to establish the offense of violating an order of protection. 720 ILCS 5/12-30 (West 2000). The State need only prove that a defendant's conduct would causeemotional distress to a reasonable person and that it, in fact, caused the court-protectedperson such distress. Where the conduct in violation of a protective order fits harassmentand stalking, the State does not have to assume the added burden that an allegation ofstalking would entail. However, if it does, it should, as a matter of course, instruct the juryon the meaning of the term "stalking." Since the State must prove stalking as defined by theCriminal Code of 1961 in order to prove a protective-order violation on that basis, it willusually charge stalking as a separate offense, if the conduct in violation of a protective orderrises to the level of stalking.

Here, the State did not inform the jury of what conduct in which Peterson must havebeen engaged under the Illinois Domestic Violence Act of 1986 in order to commit theoffense of stalking. We are asked to overturn the conviction and order a new trial in light ofthe trial judge's denial of a defense request that the jury be instructed on how stalking isdefined under the Criminal Code of 1961. While we agree that the tendered instruction, orone like it, should have been given, we do not believe that the shortcoming requires areversal or a new trial.

The jury was properly instructed on what constitutes harassment. Because the jurywas told that it had to find that Peterson engaged in harassment and stalking, in order to reachits verdict the jury must have found that the State proved harassment beyond a reasonabledoubt. While the State charged Peterson with harassment and stalking and the trial judgeinstructed the jury that the State had to prove both, the law only requires conduct thatconstitutes harassment in order to establish the crime of violating a protective order. Hence,the State established the offense of violating an order of protection by proving to the jury'ssatisfaction that Peterson had harassed his spouse. The error in failing to properly instructthe jury about the stalking allegation proved harmless to the outcome reached.

Because the issue of defining the term "stalking" might arise in this context again, weexamine the error in refusing the definition tendered.

Peterson's defense counsel submitted the following nonpattern jury instruction duringthe jury-instruction conference:

"A person stalks another person when he knowingly, on at least two separateoccasions, follows another person and/or places another person under surveillance andtransmits a threat to inflict, or places that person in reasonable apprehension ofreceiving, immediate or future bodily harm, sexual assault, confinement, or restraint."

The instruction tracks the definition of stalking found in section 12-7.3(a) of theCriminal Code of 1961 (720 ILCS 5/12-7.3(a) (West 2000)).

The State's Attorney objected to the tendered instruction. He argued that theinstruction defined the criminal offense of stalking, something that was unnecessary andinappropriate where the charge was a violation of an order of protection. He felt that theterm "stalking," used in the context of this case, was used in a general sense. In effect, thedefense instruction would burden him with having to prove the criminal offense of stalking. The State's Attorney took the position that the legislatively defined crime of stalking was notat issue in terms of the stalking allegation contained in the information.

The trial judge agreed, stating: "[The tendered instruction] is not going to fit any typeof general definition. So based on that alone, the Court's going to deny your TenderedInstruction Number 1."

The crime of violating a protective order is set forth in section 12-30 of the CriminalCode of 1961 (720 ILCS 5/12-30 (West 2000)), which reads, in pertinent part, "A personcommits violation of an order of protection if *** [h]e or she commits an act which wasprohibited by a court *** in violation of *** a remedy in a valid order of protectionauthorized under paragraph[] (1) *** of subsection (b) of Section 214 of the IllinoisDomestic Violence Act of 1986[.]" 720 ILCS 5/12-30(a)(1)(i) (West 2000).

The Illinois Domestic Violence Act of 1986 provides for orders of protection, bothin content and in remedy. The provision at issue in this case was section 214(b)(1), whichprohibits, among other things, "harassment *** or stalking of the petitioner, as defined inSection 12-7.3 of the Criminal Code of 1961." (Emphasis added.) 750 ILCS 60/214(b)(1)(West 2000).

Contrary to the reasoning employed by the trial judge in denying the instruction, theconduct implicated by an allegation of stalking in a charge leveled under section 12-30 of theCriminal Code of 1961 is not generic but rather is limited to conduct specifically defined insection 12-7.3 of the Criminal Code of 1961. Without an instruction that tracks the statutorydefinition, there is no way for a jury to properly measure an accused's conduct when the jurydecides whether a protective-order violation based upon the act of stalking has occurred. Inorder to properly weigh evidence attempting to establish that a protective order has beenviolated by stalking the protected person, a jury needs to know that in order to stalk someonein violation of a protective order, a defendant must have followed or placed the protectedperson under surveillance on at least two occasions and either transmitted a threat of, orplaced that person in reasonable apprehension of receiving, immediate or future bodily harm,sexual assault, confinement, or restraint.

The facts of this case provide a good example of why the absence of an instruction onwhat constitutes stalking under the Criminal Code of 1961 could taint a verdict. Had theState alleged only the act of stalking or had it alleged harassment or stalking, the jury maywell have returned a guilty verdict upon an erroneous factual determination that Peterson hadengaged in stalking when it actually believed that the stalking behavior had only occurred onone occasion. The jury could have easily believed that Peterson's behavior when he realizedthat Dawn saw him constituted stalking conduct, while the more benign, silent cruising pastthe home did not amount to stalking. Moreover, a common perception of stalking behaviorcould have been applied to all of Peterson's conduct with nary a thought about whether thatconduct transmitted a threat of, or placed Dawn in reasonable apprehension of receiving,immediate or future bodily harm, sexual assault, confinement, or restraint.

Since section 214(b)(1) of the Illinois Domestic Violence Act of 1986 clearly calls forconduct defined under the Criminal Code of 1961 to form the basis of a stalking allegationmade in a charge brought under section 12-30 of the Criminal Code of 1961, the content ofthat conduct needs to be explained to the jury in order to ensure accurate decision-making.

For the reasons stated, we affirm.

Affirmed.

HOPKINS, P.J., and MAAG, J., concur.

Opinion Filed: January 21, 2003

Justices: Honorable Clyde L. Kuehn, J.

Honorable Terrence J. Hopkins, P.J.

Honorable Gordon E. Maag, J.

Concur

Attorneys Daniel M. Kirwan, Deputy Defender, Paige Clark Strawn, Assistant

for Defender, Office of the State Appellate Defender, Fifth Judicial

Appellant District, 730 E. Ill. Hwy. 15, P.O. Box 2430, Mt. Vernon, IL 62864;

Assisted by Jamie L. Eastwood, Third Year Law Student, Southern

Illinois University School of Law, Carbondale, IL 62901

Attorneys Hon. Darrell Williamson, State's Attorney, Randolph County

for Courthouse, Chester, IL 62223; Norbert J. Goetten, Director,

Appellee Stephen E. Norris, Deputy Director, Sharon Shanahan, Contract

Attorney, Office of the State's Attorneys Appellate Prosecutor,

730 E. Ill. Hwy. 15, P.O. Box 2249, Mt. Vernon, IL 62864