People v. LEEZER

903 N.E.2d 726, 387 Ill. App. 3d 446, 328 Ill. Dec. 66, 2008 Ill. App. LEXIS 1342
CourtAppellate Court of Illinois
DecidedDecember 19, 2008
Docket4-08-0184
StatusPublished
Cited by4 cases

This text of 903 N.E.2d 726 (People v. LEEZER) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. LEEZER, 903 N.E.2d 726, 387 Ill. App. 3d 446, 328 Ill. Dec. 66, 2008 Ill. App. LEXIS 1342 (Ill. Ct. App. 2008).

Opinions

JUSTICE KNECHT

delivered the opinion of the court:

In March 2007, the State charged defendant, David M. Leezer, with violating an order of protection (720 ILCS 5/12 — 30 (West 2006)) for coming within 1,000 feet of Brandy Huber’s residence. Following a November 2007 conviction, the trial court granted defendant’s motion for judgment n.o.v.

The State appeals, arguing the stay-away provision of the order of protection precluded defendant from entering a 1,000-foot radius of Brandy’s home. We reverse.

I. BACKGROUND

In November 2006, the trial court issued an order of protection against defendant, which required him to stay 1,000 feet away from Brandy’s residence. The preprinted order-of-protection form was created by the Conference of Chief Circuit Judges. Section 2 of Part A of the form coincides with section 214(b)(3), the “stay away” provision, of the Illinois Domestic Violence Act of 1986 (Act). 750 ILCS 60/101 through 401 (West 2006). Within the stay-away portion of the form, subpart (a) deals with the person, subpart (b) deals with the residence, subpart (c) deals with communication, and subpart (d) deals with buildings, such as place of employment and school, that defendant is banned from while Brandy is present.

In February 2007, Brandy left her house around 10 a.m. to take her infant daughter to a doctor’s appointment. At an intersection near her house, Brandy noticed defendant’s truck parked in an alley. While deciding whether to call the police, she made several turns and again met defendant on the road. According to Brandy’s testimony, at the second meeting, defendant made eye contact and “he actually waved to me and grinned.” Brandy did not call police because she was late for the appointment. Instead, she called her friend, Gary Farha, who was the first assistant State’s Attorney. Farha drove past Brandy’s house to see if defendant was there. Satisfied defendant was not at Brandy’s house, Farha continued driving through her neighborhood. While stopped at an intersection, Farha saw defendant approaching from an adjacent road with his turn signal on, indicating he intended to turn onto the street on which Farha was stopped. The two made eye contact, and defendant discontinued the turn and accelerated past Farha.

In March 2007, the State charged defendant with violating an order of protection, and a November 2007 jury trial followed. At the close of the State’s case, defendant moved for a directed verdict, which the court denied. The jury returned a guilty verdict. Defendant filed a motion for judgment n.o.v., which the court later granted.

This appeal followed.

II. ANALYSIS

A. Jurisdiction and Double Jeopardy

Initially, we address this court’s jurisdiction because the State appeals the granting of defendant’s motion for judgment n.o.v. According to Supreme Court Rule 604(a)(1), “[i]n criminal cases the State may appeal only from an order or judgment the substantive effect of which results in *** arresting judgment because of a defective indictment, information[,] or complaint.” 210 Ill. 2d R. 604(a)(1); People v. Taylor, 50 Ill. 2d 136, 138, 277 N.E.2d 878, 880 (1971). The State may not appeal a motion for judgment n.o.v. as it is given the same weight as a directed verdict and is essentially an acquittal providing relief on the insufficiency-of-the-evidence ground. People v. Van Cleve, 89 Ill. 2d 298, 303, 432 N.E.2d 837, 839 (1982). An acquittal occurs when the judge’s ruling, regardless of its label, actually resolves some factual elements of the offense in defendant’s favor. People v. Wallerstedt, 77 Ill. App. 3d 677, 680, 396 N.E.2d 568, 570 (1979).

In this case, the State’s appeal is proper because the substance of defendant’s motion for judgment n.o.v. amounted to a motion in arrest of judgment (725 ILCS 5/116 — 2 (West 2006)). Defendant’s motion attacked the sufficiency of the charge in the information, not the sufficiency of the evidence. Further, the trial judge’s order granting the motion did not resolve any factual elements of the crime. For these reasons, we consider defendant’s motion a motion in arrest of judgment from which the State properly appealed. Both the State and defendant concede this point in their briefs.

Additionally, the State’s appeal does not pose a double-jeopardy threat to defendant. Traditionally, jeopardy attached when a jury was impaneled and sworn, or in a bench trial, when the court began to hear evidence. People v. Shields, 76 Ill. 2d 543, 546, 394 N.E.2d 1161, 1163 (1979). However, the rules of jeopardy attachment should not be applied mechanically when the interests the principle protects are not threatened. People v. Rudi, 103 Ill. 2d 216, 223, 469 N.E.2d 580, 583-84 (1984); People v. Collins, 214 Ill. App. 3d 98, 104, 573 N.E.2d 346, 350 (1991). The words “not guilty” are not controlling for purposes of double jeopardy, and what qualifies as an acquittal is not determined by the form of the judge’s action or the name he assigns it. Rudi, 103 Ill. 2d at 223-24, 469 N.E.2d at 584. “Double jeopardy does not attach when a cause is discharged on a motion in arrest of judgment, since jeopardy claims are waived by the filing of the motion.” People v. Kleiss, 90 Ill. App. 3d 53, 54, 412 N.E.2d 39, 40 (1980), citing People v. Beauchemin, 71 Ill. App. 3d 102, 109, 389 N.E.2d 580, 586 (1979). Here, defendant waived any claim of double jeopardy when he attacked the sufficiency of the State’s charge against him.

B. Standard of Review and Statutory Construction

An appellate court reviews issues of statutory interpretation de novo. People v. Olsson, 335 Ill. App. 3d 372, 374, 780 N.E.2d 816, 818 (2002).

When construing a statute, a reviewing court must “ascertain and give effect to legislative intent.” People v. Perry, 224 Ill. 2d 312, 323, 864 N.E.2d 196, 204 (2007). The language of the statute best indicates legislative intent, and the language should be given its plain and ordinary meaning. Perry, 224 Ill. 2d at 323, 864 N.E.2d at 204. To determine the plain meaning of the language, we read all statutory provisions together and consider the purpose of the legislature in enacting the statute. Perry, 224 Ill. 2d at 323, 864 N.E.2d at 204.

C. The Domestic Violence Act

The Act shall be construed liberally to promote its purpose (Olsson, 335 Ill. App.

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Cite This Page — Counsel Stack

Bluebook (online)
903 N.E.2d 726, 387 Ill. App. 3d 446, 328 Ill. Dec. 66, 2008 Ill. App. LEXIS 1342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-leezer-illappct-2008.