People v. Thoennes

• Citation: 777 N.E.2d 1075,268 Ill.Dec. 152,334 Ill. App.3d 320
• Decision Date: 09 October 2002
• Docket Number: No. 4-00-0776.,4-00-0776.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sean Michael THOENNES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

777 N.E.2d 1075

334 Ill. App.3d 320

268 Ill.Dec. 152

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sean Michael THOENNES, Defendant-Appellant.

No. 4-00-0776.

Appellate Court of Illinois, Fourth District.

October 9, 2002.

Rehearing Denied November 6, 2002.

Daniel D. Yuhas and Jacqueline L. Bullard (argued), both of State Appellate Defender's Office, of Springfield, for appellant.

Charles G. Reynard, State's Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose (argued), all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Justice TURNER delivered the opinion of the court:

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

I. BACKGROUND

In January 2000, a grand jury returned an indictment against defendant, along with his cousin, Robert Thoennes (not a party to this appeal), charging him with the offense of false personation of a peace officer, a Class 4 felony, pursuant to section 32-5.1 of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/32-5.1 (West 1998)) in that he knowingly and falsely represented himself to be a peace officer of any jurisdiction by identifying 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 Explorer on December 27,1999, around midnight. Her friend, Katy Benjamin, was also in the vehicle as they headed west on College Avenue in Normal. While driving, Hoelscher noticed two males in a Camaro traveling next to them. She indicated the two males proceeded to repeatedly speed up and slow down and later the Camaro's passenger "flipped [her] off." Upon approaching a set of railroad tracks, the Camaro swerved in front of the Explorer, and Hoelscher stated she "braked hard." Thereafter, she decided to write down the license plate number of the Camaro and report it to the police. Hoelscher then followed the Camaro to a residential neighborhood where both vehicles stopped. She indicated 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. After telling defendant and the Camaro driver, Robert Thoennes, that she wanted the license plate number, Hoelscher testified that defendant stated "he was a police officer." Hoelscher stated she disbelieved the two males were police officers and asked for proof. She stated Robert Thoennes entered his car and "pulled out what appeared to be a badge." After requesting their names, defendant responded his name was "Officer Jack Off and made a motion as if he was masturbating. Hoelscher then drove off without getting the Camaro's license plate numbers. The occupants of the Camaro then began following the Explorer, and Hoelscher indicated she was "slightly" concerned for her safety. Hoelscher testified she was able to take down the Camaro's license plate number and call the police after the Camaro had driven into someone's yard and hit a mailbox.

Katherine Benjamin testified she was traveling with her friend Jessica Hoelscher on the night of December 27, 1999. She stated the passenger of the Camaro "flicked us off" and later the car swerved into their lane causing Hoelscher to brake. Benjamin stated Hoelscher proceeded to follow the Camaro to get the license plate number and report it to the police. Once the two vehicles stopped, defendant exited the Camaro and began yelling at them. Thereafter, all the parties involved engaged in a shouting match and traded profanities. At one point, Robert Thoennes reached into his car and quickly flashed a badge stating he was a police officer. Benjamin indicated the shiny smooth material appeared to be a badge. She also testified defendant stated his name was "Officer Jack Off" and made a motion with his hands near his crotch. After Hoelscher and Benjamin questioned defendant's use of profanity, defendant stated he could do anything he wanted because they had "the law behind us." She also stated the driver told her and Hoelscher that they were going to spend the night in jail. After the males in the Camaro began following them, Benjamin stated she called 9-1-1 because "we didn't feel safe."

Defendant testified on his own behalf. He stated he was a passenger in a Camaro that was being followed by a Ford Explorer. After both vehicles stopped, the occupants of both vehicles exchanged heated language. After becoming frustrated with the argument with the girls, defendant stated he and his cousin left. Thereafter, they were stopped by a Normal police officer. On cross-examination, defendant stated he did not know there was a badge in the car until the police officer asked about it.

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

Following closing arguments, the jury returned a guilty verdict as to defendant and Robert Thoennes of false personation of a police officer. In May 2000, defendant filed a motion for new 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 reconsider the trial court's denial of his posttrial motion alleging section 32-5.1 of the Criminal Code was unconstitutional. 720 ILCS 5/32-5.1 (West 1998). The trial court found the statute was not unconstitutional and denied defendant's motion. The trial court then reimposed defendant's sentence of 24 months' probation. This appeal followed.

II. ANALYSIS

A. Substantive Due Process

Defendant argues the false personation of a peace officer statute is unconstitutional because it does not require the false personation be committed for an unlawful or improper purpose which criminalizes a substantial amount of innocent conduct and violates state and federal substantive due process guarantees. We disagree.

All statutes are presumed constitutional. In re R.C., 195 Ill.2d 291, 296, 253 Ill.Dec. 699, 745 N.E.2d 1233, 1237 (2001). The party challenging the constitutionality of the statute bears the burden of clearly establishing the alleged constitutional violation. R.C., 195 Ill.2d at 296, 253 Ill.Dec. 699, 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 of liberty without due process of law. In re K.C., 186 Ill.2d 542, 550 [239 Ill.Dec. 572, 714 N.E.2d 491] (1999). When legislation does not affect a fundamental constitutional right, the test for determining whether it complies with substantive due process requirements is the rational basis test. People v. Hamm, 149 Ill.2d 201, 216 [172 Ill.Dec. 179, 595 N.E.2d 540] (1992). Under this test, a statute will be upheld if it `bears a reasonable relationship to a public interest to be served, and the means adopted are a reasonable method of accomplishing the desired objective.' People v. Adams, 144 Ill.2d 381, 390 [163 Ill.Dec. 483, 581 N.E.2d 637] (1991)." People v. Wright, 194 Ill.2d 1, 24, 251 Ill.Dec. 469, 740 N.E.2d 755, 766-67 (2000).

In People v. Wick, 107 Ill.2d 62, 65-67, 89 Ill.Dec. 833, 481 N.E.2d 676, 678-79 (1985), the supreme court found a portion of the aggravated arson statute (Ill.Rev. Stat.1981, ch. 38, par. 20-1.1(a)(3)) unconstitutional as it violated due process. The statute provided that a person committed aggravated arson, a Class X felony, when he knowingly damaged a building by fire and a fireman or policeman was injured while present at the scene. Wick, 107 Ill.2d at 64, 89 Ill.Dec. 833, 481 N.E.2d at 678. The court stated, in part:

"Because aggravated arson as defined by the statute does not require an unlawful purpose in setting a fire, however, the statute as presently constituted sweeps too broadly by punishing innocent as well as culpable conduct in setting fires. Under this statute, for example, a farmer who demolishes his deteriorated barn to clear space for a new one is liable for a Class X penalty if a fireman standing by is injured at the scene. If the statute's purpose is to provide a severe penalty for arsonists whose conduct results in personal injury to firemen or policemen, the statute does not bear a reasonable relationship to its purpose because the penalty is not limited to arsonists." Wick, 107 Ill.2d at 66,89 Ill.Dec. 833,481 N.E.2d at 678-79.

Similarly, in People v. Zaremba, 158 Ill.2d 36, 42-43, 196 Ill.Dec. 632, 630 N.E.2d 797, 800 (1994), the supreme court held a portion of the theft statute did not bear a rational relationship to a legitimate state purpose. The statute in question stated a person committed theft when he knowingly exerted "`control over property in the custody of any law enforcement agency which is explicitly represented to him by any law enforcement officer or any individual acting in behalf of a law enforcement agency as being...