People v. Lowe

2022 IL App (2d) 190981, 205 N.E.3d 139, 461 Ill. Dec. 642

• Court: Appellate Court of Illinois
• Decided: February 10, 2022
• Docket: 2-19-0981
• Status: Published

Opinion

2022 IL App (2d) 190981 No. 2-19-0981 Opinion filed February 10, 2022 ______________________________________________________________________________

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. 18-CF-2389 ) ARTAVEUS LOWE, ) Honorable ) David P. Kliment, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and opinion.

OPINION

¶1 Defendant, Artaveus Lowe, argues that the State presented insufficient evidence to sustain

his conviction under section 11-9.3(a) of the Criminal Code of 2012 (Code) (720 ILCS 5/11-9.3(a)

(West 2018)), which provides, “It is unlawful for a child sex offender to knowingly be present in

any school building, [or] on real property comprising any school *** when persons under the age

of 18 are present in the building, [or] on the grounds ***.” Defendant’s conviction was for his

presence in a parking space adjacent to a high school field house. He argues that, because the State

did not present any evidence of the high school grounds layout, it did not show the relationship

between the field house parking lot and “the school building itself.” Thus, the evidence was

insufficient to show that the field house grounds were part of the high school. We find that 2022 IL App (2d) 190981

defendant’s argument relies on an improperly narrow definition of “school.” We conclude that the

field house was part of the high school and that the parking space was part of the high school

grounds. Thus, the parking space was on high school real property. Accordingly, we affirm.

¶2 I. BACKGROUND

¶3 The State indicted defendant on a single count of violating section 11-9.3(a) of the Code

(720 ILCS 5/11-9.3(a) (West 2018)). The indictment alleged that, on October 14, 2018, defendant,

a child sex offender, “knowingly and unlawfully was present upon school property, Dundee Crown

High School ***, while persons under the age of 18 years of age were present.”

¶4 Defendant had a bench trial. The evidence showed that, on the morning of Sunday, October

14, 2018, the Dundee-Crown High School field house in Carpentersville was the site of a

nonschool recreational cheerleading competition for children of middle school age or younger.

Children in the competition were arriving when defendant was first present. Defendant arrived in

a van at the parking area in front of the field house. He was with Melissa Freund—one of the

cheerleading coaches—and Freund’s daughter. They parked in a handicap space alongside the field

house, and defendant got out to help unload the van. While defendant was near the van, Shaun

Schroeder, an Elgin police officer who was off duty and present for the competition, recognized

him. Schroder believed that defendant was a registered child sex offender, and Schroder confirmed

this by a call to his department.

¶5 Schroder testified that there was a parking lot “attached” to the high school. He implied

that the high school and the field house shared the same parking lot, but he left it unclear whether

the buildings were attached or separate (apparently, they were separated at most by a parking lot).

Schroder’s testimony was clear that the competition was held inside the field house.

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¶6 Freund also testified; she agreed that she and defendant had gone to the “high school” that

morning and that they had parked in a “handicapped stall in the front” of “the school.”

¶7 The State presented evidence that defendant, when interviewed, agreed that he was at

“Dundee Crown High School” on October 14, 2018.

¶8 Detective Chris Bognetti of the Carpentersville Police Department testified that he was

familiar with the high school and its grounds. The State questioned him about the configuration of

the high school campus:

“Q. Is there a parking lot to that high school?

A. Yes.

Q. Is it attached to the high school?

Q. Now, prior to entering actually the parking lot of the high school, are there any

signs indicating that you are about to enter a high school?

Q. And what are those signs?

A. There is a large sign that can be lighted at night. And it says ‘Dundee Crown

High School.’

Q. And where is that located in relation to the parking lot?

A. It is at the entry to the school, the driveway that leads into the school. And it is

at the street which is Kings Road.

Q. Would it be fair to say after you passed that first sign that you just described that

you would be on the campus of Dundee Crown High School?

***

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A. Yes.”

¶9 A photograph admitted into evidence showed part of the field house with an area of asphalt

paving in the foreground. A banner with the words “Dundee-Crown Chargers” hangs near the top

of the building. However, the photograph does not show the physical relationship between the field

house and the main classroom building or buildings.

¶ 10 Defense counsel made a motion for a directed finding on the basis that the State had failed

to offer sufficient evidence that defendant was “present upon school property as is required by the

statute, specifically on real property comprising any school.” Counsel questioned how Bognetti

could have known where the school’s property lines were; counsel implied that the State had to

prove that the land on which defendant was present “belonged to” the school. The court denied the

motion:

“It would be kind of an absurd reading of the law to suggest that the parking lot outside the

school building is appropriate grounds for people who are required to stay away from

school property to be present. I think the testimony was sufficient to establish that it was

part of the school property.”

¶ 11 The defense rested without presenting any evidence. In arguing to the court, counsel

contended that the evidence was insufficient to show that the “parking lot was owned or operated

by the school.” The State argued that, even if the evidence did not show that the parking lot was

owned or operated by the high school, the evidence nevertheless showed that defendant was

“loitering within 500 feet [of] the school building comprising any school.”

¶ 12 The court found that defendant was guilty based on his presence on the real property

comprising the high school:

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“If I were to accept the defendant’s argument, the exceptions that would be carved

out of the statute would be endless.

Was he present on any real property comprising any school? That is the argument

the defense is making is that there is no testimony or evidence that the parking lot is real

property comprising the school.

Well, of course it is. It is part of the school grounds. And he was present there.”

¶ 13 The court sentenced defendant to one year of imprisonment. Defendant timely appealed.

¶ 14 II. ANALYSIS

¶ 15 On appeal, defendant contends that his conviction is unsustainable because “the State

presented no evidence or testimony on whether the parking lot outside the field house was real

property comprising the high school.” He asks us to deem persuasive two out-of-state cases,

Stamps v. State, 620 So. 2d 1033 (Fla. Dist. Ct. App. 1993)), and State v. Peterson, 490 N.W.2d

53 (Iowa 1992), relevant to land contiguity issues in deciding school real property.

¶ 16 The State responds that the evidence showed that the field house was physically attached

to the main school building or was at least on land contiguous to it. In any event, the State asserts,

“the parking lot at the field-house [sic] satisfied the plain and ordinary meaning of ‘real property

comprising any school’ as contemplated by the statute.” The State asserts:

“To construe the statute such that parking lots are not included in school grounds,

and therefore, not off limits to child sex offenders, would end the statute’s reach at the door

of a school, contradicting both the definition of a school and the purpose of the

legislation—leading to absurd results. Clearly, school playgrounds and parking lots are not

places the legislature intended to invite child sex offenders.”

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¶ 17 In reply, defendant contends that the State “begs the issue of whether the particular parking

space in question, which was in front of the athletic field house and the [sic] not the school,

constituted real property that comprised the school.”

¶ 18 We review the sufficiency of the evidence under the standards of Jackson v. Virginia, 443

U.S. 307 (1979), as adopted by People v. Collins, 106 Ill. 2d 237 (1985). When a reviewing court

decides a challenge to the sufficiency of the evidence, “ ‘the relevant question is whether, after

viewing the evidence in the light most favorable to the State, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.)

Collins, 106 Ill. 2d at 261 (quoting Jackson, 443 U.S. at 319). “Under this standard, a reviewing

court must allow all reasonable inferences from the record in favor of the prosecution.” People v.

Davison, 233 Ill. 2d 30, 43 (2009).

¶ 19 Here, defendant’s argument turns on the applicable definition of a “school,” an issue of

statutory construction.

“The primary rule of statutory construction is to ascertain and give effect to the

intent of the legislature. [Citations.] The most reliable indicator of the legislature’s intent

is the language used in the statute, which must be given its plain and ordinary meaning.

Where the statutory language is clear and unambiguous, it will be given effect without

resort to other aids of construction.” In re Mary Ann P., 202 Ill. 2d 393, 405 (2002).

“A reviewing court may also consider the underlying purpose of the statute’s enactment, the evils

sought to be remedied, and the consequences of construing the statute in one manner versus

another.” People v. Garcia, 241 Ill. 2d 416, 421 (2011). A court should “always presume[ ] that

the legislature did not intend to cause absurd, inconvenient, or unjust results.” Garcia, 241 Ill. 2d

at 421. We address issues of statutory construction de novo. Garcia, 241 Ill. 2d at 421.

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¶ 20 We agree with the State that the field house parking lot was on “real property comprising

[a] school” under the plain language of section 11-9.3(a). Further, defendant’s argument relies on

a false premise. In his reply brief, he denies that the field house is the “school” and therefore denies

that we can infer from the proximity of the field house parking lot to the field house that the parking

lot was part of the high school grounds. In other parts of his argument, he implies that the “school”

is nothing more than “the school building itself,” meaning the central classroom building of a

typical primary school or a small secondary school. His implied definition of a “school” is

inconsistent with the Code and tends to defeat the purpose of section 11-9.3(a).

¶ 21 Section 11-9.3(a) derives its definition of a “school” from section 2-19.5 of the Code (720

ILCS 5/2-19.5 (West 2018)), which provides: “ ‘School’ means a public, private, or parochial

elementary or secondary school, community college, college, or university and includes the

grounds of a school.” The inclusion of both “college[s]” and “universit[ies]”—which typically

have multiple buildings—in the definition shows that the legislature did not contemplate that a

“school” would necessarily be embodied in a single building. Further, nothing in the Code’s

definition implies that an athletic facility or playground is not as much a part of a school as what

the defendant defines as “the school building itself.” Defendant’s implicit narrowing of the term

“school” to some single building is inconsistent with the Code’s definition.

¶ 22 Defendant’s implied definition of a “school” is inconsistent with the purpose of section 11-

9.3(a), which is self-evident: the legislature intended to protect minor students from child sex

offenders by barring child sex offenders from school property while minors are present.

Defendant’s implied definition of a “school” would mean that school facilities on tracts not

contiguous with the real property on which “the school building itself” is located would be outside

the scope of section 11-9.3(a). But the legislature could not have reasonably concluded that minors

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using school facilities on discontiguous land need less protection than those nearer the main

building. Indeed, the vulnerability of students using more remote facilities suggests that more

protection is appropriate. Thus, leaving facilities on discontiguous land unprotected would create

an absurd loophole in the law. Moreover, school facilities, athletic facilities, and outdoor areas

stand out as areas where protection from child sex offenders is most obviously necessary.

Therefore, it would be absurd to conclude that the legislature implicitly excluded such facilities

from the meaning of a “school” for purposes of section 11-9.3(a) when it did not exclude such

facilities from the definition of a “school” in section 2-19.5.

¶ 23 Because the field house was part of the high school, the field house property was

necessarily part of the high school grounds. Further, since a school’s grounds are part of the school

per section 2-19.5, the field house grounds were part of the high school’s real property. Defendant

does not deny that the field house parking lot was part of the grounds of the field house, only that

it was part of the high school grounds. Further, the parking space where Freund placed defendant

was directly in front of the field house—essentially at the field house door. Thus, the evidence

strongly supported the conclusion that defendant was on the field house grounds and therefore on

the school’s real property.

¶ 24 We are unpersuaded by the cases on which defendant primarily relies. In Stamps, the

defendant challenged his conviction of purchasing cocaine within 1000 feet of “ ‘real property

comprising *** a school.’ ” (Emphasis in original.) Stamps, 620 So. 2d at 1033 (quoting Fla. Stat.

§ 893.13(1)(e) (1991)). The defendant argued that the purchase occurred in an overflow parking

lot separated from the “school itself” by a soccer field. Stamps, 620 So. 2d at 1033. The Stamps

court reversed the defendant’s conviction, reasoning:

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“We would affirm [the defendant’s drug conviction] if the evidence would have permitted

the jury to infer that defendant’s cocaine purchase was made within 1,000 feet of the

‘boundaries’ of the school, that is, within 1,000 feet of the school area consisting of

contiguous tracts owned by the school, none of which were separated from one another by

any intervening tract having a different owner. See Lyon v. State, 591 So. 2d 1107 ([Fla.

Dist. Ct. App.] 1992).

However, our review of the record establishes the lack of an evidentiary basis for

such an inference. At best, the evidence merely shows that the purchase was made within

1,000 feet of a parking lot owned by the school. Under the rule of lenity applied to criminal

statutes, [citation], it is not sufficient that the school ‘own’ the property. Rather, the

property must ‘comprise’ the school. The two terms are not synonymous.” Stamps, 620 So.

2d at 1033.

We believe that the Stamps court assumed that a remote overflow parking lot was not part of the

school at issue. Here, by contrast, the parking lot was part of the immediate grounds of the field

house, a part of the high school.

¶ 25 In Peterson, the issue was whether the defendant had delivered a controlled substance

“ ‘within one thousand feet of the real property comprising a public or private elementary or

secondary school.’ ” Peterson, 490 N.W.2d at 54 (quoting Iowa Code § 204.401A (1991). The

evidence showed that “the distance between the parking lot where the drugs were delivered and

the closest corner of the classroom building was 1232 feet.” Peterson, 490 N.W.2d at 54. However,

the “distance between the parking lot and the nearest point of the land owned by the school district

surrounding and contiguous to the school buildings was approximately 138 feet.” Peterson, 490

N.W.2d at 54. The Peterson court held that the phrase “ ‘real property comprising a school’ [is]

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commonly understood to include not only the school buildings but also the contiguous land

surrounding the buildings.” Peterson, 490 N.W.2d at 55. Thus, a drug delivery within 1000 feet of

the land’s edge fell within the statute. Peterson, 490 N.W.2d at 55. Here, the parking area at issue

was contiguous to a school building—the field house—so Peterson, contrary to defendant’s

reading, is consistent with our holding here.

¶ 26 III. CONCLUSION

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

¶ 28 Affirmed.

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No. 2-19-0981

Decision Under Review: Appeal from the Circuit Court of Kane County, No. 18-CF- 2389; the Hon. David P. Kliment, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Tomas G. Gonzalez, of for State Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Jamie L. Mosser, State’s Attorney, of St. Charles (Patrick for Delfino, Edward R. Psenicka, John G. Barrett, and Lawrence M. Appellee: Bauer, of State’s Attorneys Appellate Prosecutor’s Office, of counsel, and Hunter Gilbertson, law school graduate), for the People.

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