People v. Rizzo, 2-03-1245.
| Citation | 362 Ill. App.3d 444,842 N.E.2d 727 |
| Decision Date | 22 November 2005 |
| Docket Number | No. 2-03-1245.,2-03-1245. |
| Parties | The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Joseph M. RIZZO, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
G. Joseph Weller, Deputy Defender (Court-appointed), Office of the State Appellate Defender, Elgin, Michael J. Pelletier and Douglas R. Hoff (Court-appointed), Office of the State Appellate Defender, Chicago, for Joseph M. Rizzo.
Joseph E. Birkett, DuPage County State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Margaret M. Healy, Woodridge, for the People.
Following a jury trial, defendant, Joseph M. Rizzo, was convicted of disorderly conduct (720 ILCS 5/26-1 (West 2000)) and sentenced to two years' probation. On appeal, defendant contends that (1) the State failed to prove him guilty beyond a reasonable doubt; (2) his counsel was ineffective for eliciting testimony favorable to the State; (3) the trial court failed to give him proper admonishments in compliance with Supreme Court Rule 605(a) ); and (4) a probation condition prohibiting him from entering any school, park, or forest preserve is unreasonable and constitutionally overbroad. We affirm in part and vacate in part.
On June 28, 2001, the State charged defendant with one count of disorderly conduct, alleging that on June 26, 2001, defendant knowingly entered Lisa Marie Paul's property and, for a lewd purpose, deliberately looked into her house through a window.
A jury trial commenced on June 23, 2003, with Lisa testifying as follows. On the night of the incident, June 26, 2001, Lisa lived in small ranch house in Wheaton. The house had a one-step porch to the front door with a large bay window to the right of the front door. Lisa returned home to relax on her couch and watch television after moving items from her garage to a friend's house earlier that evening. The lights were on inside the house. Outside the house, an overhead porch light was on along with floodlights by the bushes in front of the house. Around 11:30 p.m., Lisa thought she saw a "flash" outside the bay window. When she looked out the bay window, however, she did not see anything. Lisa continued to watch television, and between 5 and 10 minutes later, she saw another flash. She looked out the bay window again and saw defendant, who has only one arm, standing directly outside the window about two feet from where she was sitting on the couch. Lisa was not friends with defendant but had seen him walking up and down her block "hundreds" of times. Lisa had also seen defendant walking up and down her street earlier that night.
Defendant was wearing a "blue-like sweatshirt" and tan or light brown shorts. His shorts were unzipped, and his hand was moving up and down rapidly near his genital area. Lisa got up, grabbed her telephone, and walked to the bay window so that defendant could see that she was calling the police. Defendant then ran away. Police officers arrived a short time later and found spots containing a "milky, creamy" substance on the right edge of her front porch. A couple of days prior to the incident, Lisa remembered seeing "a lot of different milky substances" on her porch.
Lisa went to work the next day, about three miles from her home. While outside on break, she saw defendant riding his bicycle. Defendant stopped when he saw her and "leered over at" her. Lisa ran inside and called the police.
On cross-examination, defense counsel asked Lisa questions that assumed defendant had looked into the house through the window. The following exchange occurred:
"Q. [Defense Attorney:] Seeing a person out on the night [sic] —seeing a person at any time would it be fair to say looking in your window is frightening?
A. Absolutely.
Q. And on the night of the 26th when you saw a man outside your window, you didn't know what he was going to do; correct?
A. Correct.
Q. And when you first saw him peering into your window, your first reaction was to pick up the phone and call the police?
A. Correct."
Wheaton police officer Robert Miller testified that he reported to Lisa's house on the night of the incident. Her bay window was only a couple of feet from the front step of the porch. On the step, Officer Miller found numerous spots, some wet and some dry. The wet "creamy" substance was "off-white" or "yellowish" and was running down the edge of the step.
The defense did not call any witnesses and argued that this was a case of mistaken identity.
The jury found defendant guilty of one count of disorderly conduct. Defendant moved for a new trial, and that motion was denied. The court conducted a sentencing hearing on October 10, 2003, and advised defendant that he could appeal, that he could have an attorney appointed to represent him on appeal, and that he would be provided with a trial transcript. Defendant was sentenced to two years' sex offender probation. As a condition of his probation, defendant could not enter any school, park, or forest preserve. Defendant subsequently moved to reconsider the sentence, arguing that it imposed an "undue hardship" and was not consistent with the mitigating evidence. Based on the presentence report, the nature of the charges against defendant, and all of the evidence presented, the court denied this motion. Defendant's timely notice of appeal followed.
Defendant first argues that the State failed to prove beyond a reasonable doubt that defendant looked into the window of Lisa's home. Under the "windowpeeping" section of the statute, a person commits disorderly conduct when he knowingly "[e]nters upon the property of another and for a lewd or unlawful purpose deliberately looks into a dwelling on the property through any window or other opening in it." 720 ILCS 5/26-1(a)(5) (West 2000).
Initially, we address the standard of review. When considering a challenge based upon the sufficiency of the evidence, it is not the function of this court to retry the defendant. People v. Hall, 194 Ill.2d 305, 329-30, 252 Ill.Dec. 653, 743 N.E.2d 521 (2000). "Rather, the relevant question on appeal is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Hall, 194 Ill.2d at 330, 252 Ill.Dec. 653, 743 N.E.2d 521. It is the trier of fact who must assess the credibility of the witnesses and the weight of their testimony, resolve conflicts in the evidence, and draw reasonable inferences from that evidence. People v. Ortiz, 196 Ill.2d 236, 259, 256 Ill.Dec. 530, 752 N.E.2d 410 (2001). Only where the evidence is so improbable or unsatisfactory as to create reasonable doubt of the defendant's guilt will a conviction be overturned. People v. Collins, 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985).
Defendant concedes that this standard of review ordinarily applies when considering a challenge based on the sufficiency of the evidence. However, defendant contends that in this case this issue presents a question of law that is reviewed de novo. Specifically, defendant contends that this issue involves not an assessment of the credibility of witnesses but only a determination of whether a given set of facts sufficed to meet the State's burden of proof. Although the State does not contest defendant's assertion that de novo is the correct standard of review, we decline to apply it in this case.
The question of whether defendant deliberately looked into Lisa's home through her window was a question of fact for the jury. Without direct evidence that defendant was looking into the house, the State could rely upon circumstantial evidence to create a reasonable inference of defendant's guilt. People v. Kelley, 338 Ill.App.3d 273, 278, 273 Ill.Dec. 184, 788 N.E.2d 775 (2003). "An inference is a factual conclusion that can rationally be drawn by considering other facts." (Emphasis added.) People v. Funches, 212 Ill.2d 334, 340, 288 Ill.Dec. 654, 818 N.E.2d 342 (2004). Where the evidence presented is capable of producing conflicting inferences, it is best left to the trier of fact for proper resolution. People v. McDonald, 168 Ill.2d 420, 447, 214 Ill.Dec. 125, 660 N.E.2d 832 (1995); see also In re Marriage of Kneitz, 341 Ill.App.3d 299, 303, 276 Ill.Dec. 229, 793 N.E.2d 988 (2003) ().
In this case, it was up to the jury to accept or reject the inference that defendant looked into the house through the bay window. See Funches, 212 Ill.2d at 340, 288 Ill.Dec. 654, 818 N.E.2d 342 (). Based on the evidence presented, the jury in this case made a factual determination that the window-peeping element was satisfied. Because defendant disputes this factual finding on appeal, the issue presented is a question of fact and not a question of law.
Moreover, none of the cases relied upon by defendant to support de novo review involved a factual conclusion like the case at bar. Rather, the cases cited by defendant involved the interpretation of statutory terms. See In re Ryan B., 212 Ill.2d 226, 231, 288 Ill.Dec. 137, 817 N.E.2d 495 (2004) (); People v. Smith, 191 Ill.2d 408, 412-13, 247 Ill.Dec. 458, 732 N.E.2d 513 (2000) (...
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