People v. Abdennabi

Opinion

No. 3--06--0052 Filed July 11, 2007. _________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2007

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) v. ) Nos. 05--TR--93728 & ) 05--TR--93729 ) SARUD Y. ABDENNABI, ) Honorable ) Michael J. Powers, Defendant-Appellant. ) Judge, Presiding. _________________________________________________________________

JUSTICE McDADE delivered the opinion of the court: _________________________________________________________________

The defendant, Sarud Y. Abdennabi, was charged with speeding

(625 ILCS 5/11--601(b) (West 2004)) and operating an uninsured

vehicle (625 ILCS 5/3--707 (West 2004)). The circuit court held

the defendant in direct criminal contempt of court for presenting

a fraudulent insurance card in open court. On appeal, the

defendant argues that the circuit court erred when it found him

in direct criminal contempt without holding an evidentiary

hearing on the issue. We reverse.

The defendant first appeared on the charges on October 6,

2005. After the court asked him if he had proof of insurance,

the pro se defendant tendered an insurance card to the judge. The judge noted that the card appeared suspicious, and he had the

bailiff call the insurance company listed on the card. The

bailiff reported that the company confirmed it was a fraudulent

card. The circuit court continued the matter so the defendant

could hire an attorney and return at a later date.

At the January 5, 2006, hearing, the court allowed defense

counsel to present a defense to the contempt charge. Defense

counsel argued that (1) the case law requires that there be a

showing of the defendant's mental state; and (2) because the

bailiff made the phone call, the judge did not have personal

knowledge of all of the facts necessary to find direct criminal

contempt. The court found that it was not reasonable to believe

that the defendant did not know the card was fraudulent, and that

he personally observed the operative facts of the incident.

Then, the court held the defendant in direct criminal contempt of

court.

The defendant's sole contention on appeal is that the

circuit court erred when it held him in direct criminal contempt

without holding an evidentiary hearing on the issue. The State

argues that, because the record lacks a report of proceedings

from October 6, 2005, and a bystander's report, the defendant has

provided an insufficient record to allow this court to do

anything other than affirm the circuit court's judgment.

The appellant has the duty to supply a sufficient record for

2 review. People v. Johnson, 285 Ill. App. 3d 307, 674 N.E.2d 487

(1996). Despite the State's claim that the record is incomplete

without the transcript from October 6, 2005, we believe that the

transcript from January 5, 2006, constitutes a sufficient record

for us to decide the case. Indeed the defendant’s attorney made

it clear that he was using the January 2006 hearing to document

the proceedings of the earlier hearing. In essence, he was

creating a bystanders’ report on the record. Furthermore, based

on the record before us, requiring the appellant to submit a

bystander's report pursuant to Supreme Court Rule 323(c) (166

Ill. 2d R. 323(c)) would be pointless, as the January 2006

transcript clearly indicates that neither party nor the court

could recall if the defendant commented on whether he knew the

card was false when he presented it to the court. Consequently,

we find the record adequate and we will address the merits of the

defendant's argument.

ANALYSIS

"Direct criminal contempt is contemptuous conduct occurring

the offense within his own personal knowledge.’ People v.

Harrison, (1949), 403 Ill. 320, 323-24, Direct contempt is

court, and no matters resting upon opinions, conclusions,

presumptions, or inferences should be considered’, People v.

3 Loughran (1954) 2 Ill. 2d 258, 262." People v. Simac, 161 Ill.

2d 297, 360, 641 N.E.2d 416, 420 (1994). Direct criminal

contempt is defined as conduct or actions that tend to directly

obstruct and prevent the administration of justice. People v.

Randall, 89 Ill. App. 3d 406, 411 N.E. 2d 1017 (1980). "Direct

criminal contempt may be found and punished summarily because all

elements are before the court and, therefore, come within its own

immediate knowledge." Simac, 161 Ill. 2d at 306, 641 N.E.2d at

420. We review a finding of direct criminal contempt by

addressing whether the evidence was sufficient to support the

finding, and whether the judge considered facts outside of his

personal knowledge. Simac, 161 Ill. 2d at 306, 641 N.E.2d at

420.

Before a defendant can be found guilty of direct contempt

regarding, as here, a case of alleged false representation, it

must appear beyond a reasonable doubt from the personal knowledge

of the court or by admission from the lips of the defendant in

open court and from no other source that the representations were

untrue and that defendant knew they were untrue when they were

made. People v. Randall, 89 Ill. App. 3d at 414, 411 N.E. 2d at

1022 (1980).

In this case, the first problem is that the trial judge did

not know the proof of insurance document was fraudulent. He

suspected it might be and enlisted the assistance of the bailiff

4 to confirm his suspicion. The bailiff reported that whomever he

had called said the card was fraudulent -- still leaving that

information outside the ambit of the judge’s personal knowledge.

Clearly, if an investigation is necessary to assess whether

direct criminal contempt has occurred, the element of personal

knowledge of all of the acts and facts has not been satisfied.

The second problem is that the court had no basis for making

the requisite finding that the defendant’s conduct was willful.

Simac, 161 Ill. 2d at 307, 641 N.E. 2d at 421. In January 2006,

neither the court nor the prosecutor could say whether the

defendant stated on October 6, 2005, that he did not know the

card was fraudulent, the court stated, "I don't know

affirmatively one way or the other whether or not he made that

representation. I'm not going to say that he did because I don't

recall that and I don't have that written anywhere, so I'm not

going to make that representation that he said that." We find

nothing in this case to suggest that the defendant actually knew

the card was fraudulent and, without such evidence, the trial

court could not find the requisite intent to mislead the court.

In sum, the trial judge lacked personal knowledge that the

card was fraudulent; he relied on inference, opinion, or

presumption to intuit that it might be; he had someone else

investigate whether it was; and he apparently made no effort to

ascertain whether the defendant knew he had a fraudulent card.

5 Thus, the circuit court found the defendant guilty of direct

criminal contempt without any showing that the defendant’s

alleged conduct was willful and had the effect of immediately

disrupting and disturbing the court’s business. Accordingly, the

evidence was insufficient to support the finding of defendant’s

guilt.

The judgment of the circuit court of Will County is

reversed.

CARTER, J., concurs.

JUSTICE SCHMIDT, specially concurring:

I concur in the result, but not in the entire analysis. I

believe that a reversal is warranted by what the majority

describes as "the first problem." I strongly disagree with the

majority's discussion of "the second problem." The majority

states, "We find nothing in this case to suggest that the

defendant actually knew the card was fraudulent and, without such

evidence, the trial court could not find the requisite intent to

mislead the court." Slip op. at 5. Apparently, the majority

would require a confession from defendant that he knew the card

was fraudulent in order to find intent to mislead the court. I

think most reasonable people would agree that it would be, at

best, highly improbable for someone to have a fraudulent

6 insurance card in his wallet without knowing it was fraudulent.

Where do people get insurance cards? Answering my own rhetorical

question, I suggest that it is either directly from our insurance

agent or in an envelope mailed to us directly from our insurance

carrier, along with a statement and/or a declarations page. The

fact that the card is fraudulent can only lead to the rational

inference that defendant did not get the card either directly

from his insurance agent or mailed directly to him from his

insurance carrier. Had defendant pulled a Molotov cocktail out

of his coat, ignited a wick and thrown it at the judge, would the

court find direct criminal contempt inappropriate because there

was no evidence that defendant knew the bottle contained a

flammable liquid?

Of course he knew it was fraudulent, and of course he handed

it to the court representing it to be a valid insurance card,

satisfying the requirement that he intended to mislead the court.

The only problem in this case is that the proof that the card was

fraudulent came from outside the courtroom and, therefore, direct

criminal contempt was not the proper charge. The defendant

should have been charged with indirect criminal contempt as the

majority correctly points out.