People v. Keough

2024 IL App (2d) 230400-U

• Court: Appellate Court of Illinois
• Decided: January 3, 2024
• Docket: 2-23-0400
• Status: Unpublished

Opinion

2024 IL App (2d) 230400-U No. 2-23-0400 Order filed January 3, 2024

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 23-CM-1686 ) JOHN S. KEOUGH, ) Honorable ) Salvatore LoPiccolo, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE MULLEN delivered the judgment of the court. Presiding Justice McLaren and Justice Birkett concurred in the judgment.

ORDER

¶1 Held: The trial court did not err in finding that the State met its burdens of proving that the proof is evident or presumption great that defendant committed the charged offenses, that defendant presented a threat to any persons or the community, and that no conditions of release would mitigate that threat; provision requiring State to provide victim with notice of hearing did not create right upon which defendant could base claim for relief.

¶2 Defendant, John S. Keough, appeals an order of the circuit court of Kane County granting

the State’s petition to deny him pretrial release pursuant to article 110 of the Code of Criminal

Procedure of 1963 (Code) (725 ILCS 5/art. 110 (West 2022)) (we will refer to article 110 as the

“Pretrial Fairness Act”). For the reasons that follow, we affirm. 2024 IL App (2d) 230400-U

¶3 I. BACKGROUND

¶4 Defendant was charged with a violation of an order of protection after having been served

notice (720 ILCS 5/12-3.4(a)(2) (West 2022)), a class A misdemeanor and a violation of conditions

of pretrial release where the victim of the offense was a family member (720 ILCS 5/32-10(b)

(West 2022)), also a class A misdemeanor. Defendant does not contest the trial court’s ruling that

he was charged with a qualifying offense under section 110-6.1(a)(3) of the Code (725 ILCS 5/110-

6.1(a)(3) (West 2022)).

¶5 The State’s petition alleged defendant’s pretrial release posed “a real and present threat to

the safety of any person or persons or the community.” It further alleged that defendant had two

other cases pending in Kane County: case No. 2023-CM-1479 (violation of an order of protection

(720 ILCS 5/12-3.4 (West 2022))) and case No. 2023-CM-1506 (violation of an order of protection

(720 ILCS 5/12-3.4 (West 2022)) and resisting or obstructing a peace officer (720 ILCS 5/31-1(a)

(West 2022))).

¶6 A hearing was held on the State’s petition. The State represented that the police had

notified the victim of the hearing. The State tendered synopses of the charged offenses as well as

of the two additional pending cases. The State then proffered that, in an earlier case (case No. 23-

OP-1316) an order of protection had been issued against defendant regarding the victim in this

case. All three pending cases involved violations of the earlier order of protection. The first case

(No. 2023-CM-1479) concerned events occurring on August 28, 2023, when it is alleged that he

contacted the victim by phone. The second (No. 2023-CM-1506) involved events occurring on

September 1, 2023, when defendant is alleged to have fled officers after throwing rocks at the

victim’s window and leaving her a message stating that she and anyone else in her apartment were

going to die.

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¶7 The instant case (the third one) involves allegations that, on September 29, 2023, defendant

called the victim several times. She answered the first time and hung up when she recognized

defendant’s voice. She then did not answer several calls from a blocked phone number. She left

for work at about 10:20 a.m., and, as she pulled out of her secured garage, defendant approached

her vehicle on foot and began banging on the driver’s side window. The victim stopped the car,

and defendant pulled on the car’s door handle, which broke off completely. He left with the handle

and then texted the victim to attempt to coordinate returning it. The police arrived. The victim

answered another call from defendant, now in the presence of the police. She recognized

defendant’s voice. During the call, defendant asked the victim why she had called the police.

¶8 The State pointed to what it characterized as the “escalating nature of these offenses.” The

State also reviewed defendant’s criminal history. It noted that defendant had been convicted of

criminal damage to property, unlawful possession of a stolen vehicle, and certain offenses as a

juvenile.

¶9 Defense counsel initially responded that the State had not carried its burden of presenting

clear and convincing evidence “in the absence of the complaining witness and having her only

been contacted by the police rather than the State and not appearing today.” Counsel further

asserted that defendant had obtained permission to stay at a residence in Joliet, where he could be

placed on electronic home monitoring. Counsel also assured that defendant would abide by orders

of the court and the existing order of protection. Defendant would be willing to comply with

“substance abuse evaluation and treatment.” Defendant has a job and is able to drive himself to

court.

¶ 10 The State responded that electronic home monitoring would “only tell us where he is, it

wouldn’t stop him from doing the things he’s allegedly done in the past.” It noted that defendant

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had already, on two occasions, failed to abide by the order of protection at issue in this case. The

State argued that electronic home monitoring would not provide adequate protection for the victim.

¶ 11 The trial court granted the State’s petition. It first stated that it had considered the factors

regarding dangerousness set forth in section 110-6.1(g) of the Code (725 ILCS 5/110-6.1(g) (West

2022)). It found that the State had established by clear and convincing evidence that the proof was

evident or the presumption great that defendant had committed the charged offenses. The trial

court rejected defendant’s claim that the State had to present live testimony to sustain its burden.

The court noted that defendant called the victim while the police were present, so there were two

witnesses to this violation of the order of protection. Regarding dangerousness, the trial court

observed that defendant had violated the original order of protection three times in approximately

one month. It described the confrontational nature of the violations, which included throwing

rocks and damaging the victim’s car. Moreover, the trial court found that the State had proven

that no conditions of release could adequately mitigate this threat. The trial court ordered

defendant detained, and this appeal followed.

¶ 12 II. ANALYSIS

¶ 13 On appeal, defendant raises three main issues. First he contends that the trial court erred

in finding that the State had proven, by clear and convincing evidence, that the proof is evident or

presumption great that defendant committed the charged offenses because (1) it relied on proffers

of police synopses rather than live testimony and (2) there is no indication that the State contacted

the complaining witness (though the record indicates that the police did so). Second, defendant

argues that the State failed to prove dangerousness by clear and convincing evidence because it

relied on synopses and presented no live testimony. Third, defendant asserts that the trial court

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erred in finding that no conditions of release would mitigate the threat to the victim that his release

would present. We find none of these contentions well founded.

¶ 14 We apply the manifest-weight standard to the trial court’s factual findings—including

whether a defendant poses a threat and whether any conditions would mitigate that threat. People

v. Trottier, 2023 IL App (2d) 230317, ¶ 13. A finding is against the manifest weight of the

evidence only if an opposite conclusion is clearly apparent. In re Marriage of Kavchak, 2018 IL

App (2d) 170853, ¶ 65. The ultimate question of whether a defendant should be detained is

reviewed using the abuse-of-discretion standard; therefore, we will reverse only if no reasonable

person could agree with the trial court. Trottier, 2023 IL App (2d) 230317, ¶ 13.

¶ 15 1. Proof Of Commission Of A Qualifying Offense

¶ 16 Defendant first argues that the State failed to meet its burden of establishing that the proof

is evident or presumption great that he committed the offenses of which he is charged. See 720

ILCS 5/110-6.1(e)(1) (West 2022). His sole complaint is that the State failed to present live

testimony. According to defendant, simply proffering police synopses is insufficient. Clearly, the

Pretrial Fairness Act requires proof of this proposition by clear and convincing evidence. Id.

However, it also plainly contemplates the State proceeding by proffer. See 720 ILCS 5/110-

6.1(f)(2) (West 2022). Defendant’s argument is inconsistent with the plain language of the Pretrial

Fairness Act. Moreover, we flatly rejected a similar argument in People v. Robinson, 2023 IL App

(2d) 230345-U, ¶¶ 9-10. This argument fails.

¶ 17 Defendant also argues that he is entitled to relief because the police, rather than the State,

notified the victim of the hearing. It is clear that the State is obligated to notify the victim of such

a hearing (720 ILCS 5/110-6.1(m)(1) (West 2022)); however, it is unclear why this would create

a right that would entitle a defendant to relief. Indeed, section 110-6.1(m)(1) states: “Crime

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victims shall be given notice by the State’s Attorney’s office of this hearing as required in

paragraph (1) of subsection (b) of Section 4.5 of the Rights of Crime Victims and Witnesses Act

and shall be informed of their opportunity at this hearing to obtain a protective order.” Id.; see

also 725 ILCS 120/4.5(b) (West 2022). The legislation referenced in this passage—the Rights of

Crime Victims and Witnesses Act—elsewhere states, “Nothing in this Act shall create a basis for

vacating a conviction or a ground for relief requested by the defendant in any criminal case.” 725

ILCS 120/9 (West 2022). Nothing here provides us with a basis to disturb the trial court’s decision.

¶ 18 2. Dangerousness

¶ 19 Defendant next argues that the trial court erred in finding that the State met its burden of

proving, by clear and convincing evidence, that he constituted a threat to any person or persons or

the community. 720 ILCS 5/110-6.1(e)(2) (West 2022). He again argues that the State could not

carry this burden without presenting live testimony. We rejected that argument above, and we find

it no more persuasive here. Defendant also asserts that the “State presented no evidence that [the]

complaining witness was physically harmed in any manner by defendant.” We find this an

extraordinary proposition because it disregards any psychological or emotional harm the victim

may have suffered. More importantly, defendant calls our attention to no rule of law that would

require a court to wait until a victim is physically harmed before acting, and the authority we have

located suggests otherwise. See In re Robin C., 385 Ill. App. 3d 513, 529 (2008)(court is not

required to wait until respondent harms himself or another in mental health commitment); In re

Kenneth D., 364 Ill. App. 3d 797, 801 (2006)(courts are not required to refrain from action to

protect minor child until another child is injured). We also note that defendant’s conduct had

progressed from mere communication to rock throwing and direct confrontation. In short, we find

this argument unpersuasive.

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¶ 20 3. Conditions Of Release

¶ 21 Finally, defendant argues that the trial court’s finding that no conditions of release would

mitigate the threat to the victim that his release would present is contrary to the manifest weight

of the evidence. See 720 ILCS 5/110-6.1(e)(2) (West 2022). Defendant asserts that electronic

home monitoring at a residence separate from the victim would be sufficient to mitigate the threat

he poses. The trial court concluded otherwise, and we cannot say that an opposite conclusion to

the trial court is clearly apparent. Notably, defendant violated an existing order of protection three

times. Moreover, in one alleged instance, defendant called the victim and asked why she had

called the police. From this behavior, it is inferable that defendant chose to violate the order of

protection despite the police presence and further inferable that remote electronic monitoring

would be less of a deterrent. We cannot conclude that the trial court’s finding on this issue is

against the manifest weight of the evidence. Further, in light of the trial court’s findings, its

decision to detain defendant was not an abuse of discretion.

¶ 22 III. CONCLUSION

¶ 23 For the reasons stated, we affirm the judgment of the circuit court of Kane County.

¶ 24 Affirmed.

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