People v. Nordike

2021 IL App (5th) 190359-U

• Court: Appellate Court of Illinois
• Decided: May 26, 2021
• Docket: 5-19-0359
• Status: Unpublished

Opinion

2021 IL App (5th) 190359-U NOTICE NOTICE Decision filed 05/26/21. The This order was filed under text of this decision may be NO. 5-19-0359 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Clinton County. ) v. ) No. 19-CF-59 ) KEITH A. NORDIKE, ) Honorable ) Michael D. McHaney, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________

JUSTICE WHARTON delivered the judgment of the court. Justices Moore and Barberis concurred in the judgment.

ORDER

¶1 Held: The charging instrument was sufficient to state the offense of unlawful use of an electronic tracking device where (1) it contained specific allegations of conduct that fit within the elements of that offense, and (2) the defendant’s claim that his conduct fell within a statutory exception required the trial court to look beyond the charging instrument and consider evidence that might be presented at trial. The court therefore erred in dismissing the charge. The charge of unlawful misconduct was properly dismissed where proof of one element of the offense would necessarily negate proof of the other element. However, dismissal should not have been with prejudice.

¶2 The defendant, Keith A. Nordike, was charged with one count of unlawful use of an

electronic tracking device (720 ILCS 5/21-2.5(b) (West 2016)) and one count of official

misconduct (id. § 33-3(a)(2)). An amended information alleged that the defendant, a member of

the Clinton County Board (County Board), placed an electronic tracking device on a county-

owned vehicle driven by a Clinton County employee, and that the defendant was not authorized 1 to do so by any action of the County Board. The amended information further alleged that in

taking these actions, the defendant performed an act he knew to be illegal while acting in his

capacity as a public official. The defendant filed a motion to dismiss the amended information,

arguing that it failed to state an offense because his conduct fell within a statutory exception. The

court granted the defendant’s motion and dismissed both charges with prejudice. The State

appeals from that ruling, arguing that (1) the court erred in finding that the amended information

failed to state an offense because the applicability of the statutory exception was a question of

fact for a jury to resolve and (2) alternatively, the court should have dismissed the information

without prejudice. We reverse.

¶3 I. BACKGROUND

¶4 In April 2019, the State filed a two-count information charging the defendant with

unlawful use of an electronic tracking device (720 ILCS 5/21-2.5(b) (West 2016)) in count I and

with official misconduct (id. § 33-3(a)(2)) in count II. In count I, the State alleged that on

December 14, 2018, the defendant used an electronic tracking device to monitor the location or

movement of Ron Becker. In count II, the State incorporated the allegations of count I and

alleged that, in performing those acts, the defendant knowingly performed an act he knew to be

illegal while acting in his capacity as a public official.

¶5 In June 2019, the defendant filed a motion to dismiss the charges. He alleged that he was

a member of the Clinton County Board. He further alleged that Becker was an employee of the

Clinton County Engineering Department who was using a vehicle owned by Clinton County

when the tracking device was placed on the vehicle. The defendant argued that count I of the

complaint should be dismissed for failure to state an offense because the conduct alleged in the

charge fell within a statutory exception. Specifically, he argued that it is lawful for a State

2 agency to use an electronic tracking device to track a vehicle that is owned by the agency and

driven by one of its employees or contractors. See id. § 21-2.5(c)(4). He argued that Clinton

County falls within the statutory definition of a State agency, which includes “bodies politic and

corporate of the State” (see id. § 21-2.5(a)), and that the county can only act through the County

Board and its individual members. Alternatively, the defendant argued that the portion of the

statute defining the offense of unlawful use of an electronic tracking device (id. § 21-2.5(b)) is

unconstitutional because it is not narrowly tailored enough to avoid potential prosecution of

innocent conduct. The defendant further argued that count II of the information likewise fails to

state an offense. He argued that because the conduct at issue was not unlawful, it could not

support a charge of official misconduct. See id. § 33-3(a)(2).

¶6 On July 8, 2019, the State filed a response to the defendant’s motion to dismiss. The State

argued that the allegations in the defendant’s motion “would certainly be relevant at trial,” but

that those allegations “have no relevance” at the pleading stage. The State contended that the

defendant’s arguments required the court to look beyond the sufficiency of the information and

consider evidence that might be presented at trial. The State further contended that the defendant

had no authority to act on behalf of the entire County Board without some sort of authorization,

and that “it is questionable whether the County Board was the State agency which was entitled to

exercise control over the vehicle in question,” noting that the vehicle belonged to the Highway

Department, which is deemed to be a State agency in its own right. See id. § 21-2.5(a).

¶7 The court held a hearing on the motion on July 11, 2019. After hearing the arguments of

both parties, the court granted the defendant’s motion and dismissed the information without

prejudice. The court granted the State 21 days leave to file an amended information.

3 ¶8 On July 29, 2019, the State filed an amended information. Count I again charged the

defendant with unlawful use of an electronic tracking device. The State alleged in count I that the

defendant used an electronic tracking device to monitor the movement or location of a vehicle;

that the registered owner, lessor, or lessee of the vehicle did not consent to the use of the device;

and that the defendant was not acting on behalf of a law enforcement agency when he attached

the device to the vehicle. The State further alleged that although the vehicle was under the

control of a department of Clinton County, the defendant was not authorized by any ordinance or

other action of the County Board to act on behalf of Clinton County to track Becker’s

movements. In count II, the State once again charged the defendant with official misconduct,

again incorporating the allegations of count I and alleging that by performing the acts alleged in

count I, the defendant knowingly performed an act he knew to be illegal while acting in his

capacity as a public official.

¶9 On August 1, 2019, the defendant filed a motion to dismiss the amended information. He

argued that although the State alleged that he was not authorized to place the tracking device on

the vehicle used by Becker, this allegation was contradicted by the allegation in count II that the

defendant was acting in his official capacity at the time. He further argued that the legislative

history of the statute indicates that the legislature intended to prevent private citizens from

placing electronic tracking devices on the vehicles of other private citizens. The defendant also

reiterated his argument that the statute is unconstitutional and his argument that count II failed to

state an offense.

¶ 10 The matter came for a hearing on August 8, 2019. At the outset, the court asked the

prosecutor why the defendant, as a member of the Clinton County Board, does not fit within the

statutory exception in subsection (c)(4) (id. § 21-2.5(c)(4)). The prosecutor responded by arguing

4 that the defendant needed permission or authority from the entire County Board in order to have

authority to track the vehicle in his capacity as a County Board member. The defendant argued

that the State’s interpretation would require the County Board to take a vote to authorize the

investigation of any employee suspected of misusing a county-owned vehicle. He argued that

this would be problematic because such a vote would have to be taken in a public meeting. We

note that the record does not indicate whether Becker was suspected of misusing the vehicle.

¶ 11 The court granted the defendant’s motion. This time, the court dismissed the information

with prejudice. Asked by the State whether he was ruling on the defendant’s constitutional claim,

the trial judge stated that he would not reach that issue because it was not necessary to do so. The

State filed this appeal on August 22, 2019.

¶ 12 II. ANALYSIS

¶ 13 The State first argues that the court erred in dismissing count I of the information because

the allegations in that count adequately set forth the offense charged and complied with Illinois’s

statutory pleading requirements. The State further contends that whether the defendant was

acting with the authority of the County Board—thus placing his conduct within a statutory

exception—is a question of fact to be resolved at trial. We agree.

¶ 14 The purpose of a charging instrument in a criminal case is to apprise the defendant of the

nature of the charges against him so he is able to prepare a defense. People v. Alvarado, 301 Ill.

App. 3d 1017, 1023 (1998). Thus, the charging instrument must include all elements of the

offenses charged along with “allegations of the essential facts” that are sufficient to enable the

defendant “to prepare a defense which, if successful, would bar further prosecution for the same

offense.” Id. (citing People v. Smith, 99 Ill. 2d 467, 471 (1984)).

5 ¶ 15 When a defendant challenges the sufficiency of a charge, the question before the trial

court is whether the charging instrument strictly complies with the statutory pleading

requirements. Id. at 1022-23. The applicable statute requires the State to include the name of the

offenses charged, citations to the statutory provisions under which the defendant is being

charged, the nature and elements of the offenses, the date of the offenses, the county in which

they occurred, and the name of the defendant. 725 ILCS 5/111-3(a) (West 2016). Further, if the

facts alleged in the charging instrument do not constitute an offense even if they are true, the

charge is not sufficient. Alvarado, 301 Ill. App. 3d at 1023. Whether a charging instrument is

sufficient to state an offense is a question of law. We therefore review de novo the trial court’s

determination. Id.

¶ 16 Here, the defendant was charged with unlawful use of a tracking device in violation of

section 21-2.5 of the Criminal Code of 2012. Under that statute, it is unlawful for any person or

entity to use an electronic tracking device to determine the location or movement of another

person. 720 ILCS 5/21-2.5(b) (West 2016). An electronic tracking device is defined by the

statute as a device that is “attached to a vehicle that reveals its location or movement by the

transmission of electronic signals.” Id. § 21-2.5(a). Violation of this provision is a Class A

misdemeanor. Id. § 21-2.5(d). There are certain statutory exceptions. See id. § 21-2.5(c).

Pertinent here, it is not unlawful to attach an electronic tracking device to a vehicle that is under

the control of a State agency if the device is used by the agency to track vehicles driven by its

employees or contractors. Id. § 21-2.5(c)(4).

¶ 17 Count I of the information in this case clearly identifies the offense, includes a citation to

the applicable statutory provision, and alleges facts comprising the essential elements of the

offense. It also includes the defendant’s name and the date and county of his alleged offense. As

6 the defendant correctly points out, however, the statutory exception we have just discussed is

applicable if he was acting on behalf of Clinton County to track the vehicle used by Becker.

According to the defendant, the allegations of the information are not sufficient to allege that his

conduct fell outside the exception. As such, he contends, the allegations of the information fail to

state an offense even assuming they are true. The State, by contrast, argues that “the defendant’s

mere status as a County Board member does not automatically make the exception applicable.”

Rather, the State contends, if the defendant was acting on his own without authority from the

County Board, the exception is not applicable.

¶ 18 The parties thus appear to agree that the crucial question in determining whether the

statutory exception applies is whether the defendant had authority to act on behalf of the County

Board. The question for us is whether the information alleges sufficient facts which, if proven to

be true, establish that the exception does not apply and that the defendant’s conduct, therefore,

constitutes a criminal offense.

¶ 19 We are guided in our analysis by the Fourth District’s decision in People v. Soliday, 313

Ill. App. 3d 338 (2000). There, the defendant was charged with criminal damage to property. The

charge alleged that he knowingly injured a domestic animal belonging to the Champaign County

Rottweiler Rescue. Id. at 339. The defendant shot the animal in question, a dog named Tritan. Id.

at 340. The defendant filed a motion to dismiss the charge, arguing that it did not state an offense

because the dog was his property, not that of the rescue. He argued that, as such, the allegations

in the charge were not sufficient to establish that the dog was the property of another, which is an

element of the offense. Id. at 339. In support of his claim, the defendant attached to his motion a

copy of an agreement between himself and the rescue. The agreement included conditions related

7 to the care of the dog, and provided that his failure to comply with some of the conditions would

result in the dog being returned to the rescue. Id.

¶ 20 In the State’s response to the defendant’s motion to dismiss, it alleged that the defendant

shot Tritan multiple times and returned his body to the rescue. Id. at 340. The State further

alleged that the defendant initially told the rescue that the dog had been struck by a car, but he

subsequently admitted that he shot the dog. Id. The State argued that although the defendant had

a possessory interest in Tritan, the rescue maintained a proprietary interest pursuant to the

agreement. Id.

¶ 21 The trial court agreed with the defendant and dismissed the charge. Id. at 341. In

explaining its ruling, the court noted that the State’s assertion that the dog was the property of the

rescue depended on an interpretation of the contract between the rescue and the defendant. Id. at

340. The court explained that contract interpretation is a question of law, not a question of fact

for jurors to decide. Id. The court found the contract to be ambiguous and “poorly worded.” Id.

The court then noted that the contract explicitly named the defendant as Tritan’s “adopter,” and

stated that this “ ‘means he’s the owner.’ ” Id. The court went on to explain that while the rescue

attempted in the agreement “to retain some sort of interest” in the dog, that interest could best be

characterized as “some sort of reverter interest,” not a possessory interest. Id. The court found

that prosecuting the defendant for criminal damage to property under those circumstances went

“well beyond” the intent of the law. Id. at 341. The court also emphasized that the State could

properly have charged the defendant with cruelty to animals instead. Id. at 340.

¶ 22 The State appealed, arguing that (1) the information complied with the statutory pleading

requirements and (2) the trial court’s decision was based on its assessment of potential

evidence—specifically, whether the agreement between the defendant and the rescue defeated

8 the State’s case. The appellate court agreed. Id. at 341. The appellate court pointed out that the

trial court dismissed the charge based on evidence the defendant presented showing that the

rescue did not own Tritan. The appellate court then explained that “[s]uch evidence, if deemed

credible by the trier of fact at trial, would defeat an element of the charged offense, namely, that

the domestic animal injured be ‘of another.’ ” (Emphasis in original.) Id. The court went on to

explain that “when addressing a defendant’s motion to dismiss a charge [for failure to state an

offense], a trial court is strictly limited to assessing the legal sufficiency of the indictment,

information, or criminal complaint and may not evaluate the evidence the parties might present

at trial.” Id. at 342.

¶ 23 Similarly, in this case, the defendant sought dismissal of the information based on factual

allegations that he asserted would defeat the State’s claim that his conduct constituted an offense.

Specifically, as we have discussed, the defendant asserted that because he served on the Clinton

County Board, the statutory exception at issue applied and that his conduct therefore did not

constitute a criminal offense. The parties disagree on whether the defendant had the authority to

act on behalf of the entire County Board to monitor the use of a county-owned vehicle by a

county employee. For the reasons that follow, we believe that is a question of fact to be

determined at trial.

¶ 24 The State points out that individual board members cannot represent a county in court

absent a resolution granting them the authority to do so (see In re Appointment of Special State’s

Attorneys, 42 Ill. App. 3d 176, 179-80 (1976)) or bind the county to obligations unless the entire

board grants that authority to individual board members (see Pauly v. Madison County, 288 Ill.

255, 260 (1919); Will County v. George, 103 Ill. App. 3d 1016, 1018 (1982)). As stated

9 previously, the State alleged in the information that the defendant was not authorized to act as he

did by any ordinance or resolution passed by the entire County Board.

¶ 25 The defendant, by contrast, argues that County Board members have “not just authority,

but a duty to investigate” matters they will be called to vote on, including the budget and

expenditures for Becker’s department. The defendant argues that this obligation necessarily

includes a “duty to investigate whether a county vehicle is being properly used.” Although the

defendant cites no authority in support of his position, he does point out that a county board has

the power and duty to examine and settle the county’s accounts, to issue purchase orders, and to

make payments on purchase orders. 55 ILCS 5/5-1019 (West 2016). This provides at least some

support for the defendant’s claim that a resolution or some other formal action by the entire

board is not necessary for any and all actions taken by board members on behalf of a county.

Examining that county’s accounts and making payments on purchase orders are day-to-day

functions that are best carried out by individual board members on an ongoing basis. Arguably,

oversight of county employees’ usage of county-owned vehicles may fall into the same category.

¶ 26 Nevertheless, it is not appropriate to determine as a matter of law that the defendant’s

mere status as a member of the County Board was sufficient to give him the authority to monitor

Becker’s use of a county-owned vehicle on behalf of Clinton County. Whether monitoring a

county employee’s use of a county-owned vehicle is the responsibility of the Clinton County

Board or its members is a question of fact to be resolved at trial. If it is a function of the County

Board, whether it is a day-to-day function that can be performed by individual members without

the need for formal authorization is likewise a question of fact to be resolved at trial. Finally, if

some sort of formal action by the entire County Board is necessary, whether that occurred is a

10 question to be resolved at trial. For these reasons, we conclude that dismissal of count I of the

amended information was in error.

¶ 27 The State next argues that count II of the information was sufficient to state the offense of

official misconduct. As noted previously, the charge alleged that the defendant committed

official misconduct by knowingly performing an act he knew to be illegal while acting in his

capacity as a public official. See 720 ILCS 5/33-3(a)(2) (West 2016). The State argues that the

charge was sufficient because it alleged that the defendant violated “an identifiable statute.” With

respect to the requirement that the defendant be acting in his capacity as a public official, another

element of the offense, the State points out that the defendant himself claims to have been acting

in his capacity as a member of the Clinton County Board when he attached the electronic

tracking device to the vehicle used by Becker. The State argues that, although this “may or may

not be true,” the only question at this stage is the sufficiency of the allegations in the charge, not

the sufficiency of any evidence that might be presented at trial. We are not persuaded.

¶ 28 The flaw in the State’s argument is that the allegations in count II allege conduct that

does not constitute an offense no matter what the jury finds with respect to the allegation that the

defendant was acting in his official capacity. If the evidence at trial establishes that the defendant

was authorized to act in his capacity as a County Board member, his conduct will fit within the

relevant statutory exception. Such evidence will therefore refute the State’s allegation that the

defendant performed an act he knew to be illegal, a necessary element of the offense of official

misconduct as charged. See id. On the other hand, if the evidence at trial shows that the

defendant was not acting in his official capacity, this will defeat the State’s claim that he was a

public official acting in his official capacity, which is likewise an element of the offense. See id.

Because an element of the offense will be negated no matter what the evidence at trial shows, the

11 facts alleged in count II are not sufficient to state an offense. See Alvarado, 301 Ill. App. 3d at

1023 (explaining that if the facts alleged do not constitute an offense if true, the charge is

insufficient).

¶ 29 We recognize that an act can be performed in a public official’s official capacity even if it

is outside the scope of the official’s authorized duties. “An act is performed in a public officer’s

official capacity if it is accomplished by exploitation of his public position.” People v. Lynn, 223

Ill. App. 3d 688, 691 (1992). In Lynn, for example, a prison medical technician was properly

found to be acting in his official capacity when he agreed to deliver cocaine to an inmate. The

finding was proper because the access to the prison and its inmates afforded to the defendant by

his position and his familiarity with the prison’s search procedures were “integral to the drug

transaction.” Id. The amended information in this case, however, does not allege any facts to

support a conclusion that the defendant exploited his position as a County Board member to

place the tracking device on the vehicle driven by Becker. It is worth noting that the tracking

device appears to be the property of the defendant, not that of Clinton County. At the end of the

second hearing, his attorney asked that the device be returned to the defendant. Absent any

allegations that the defendant somehow exploited his position to attach the device to the vehicle,

the charge is insufficient to state an offense. As such, the trial court properly dismissed it.

¶ 30 We must next consider whether the court properly dismissed count II with prejudice. The

State argues that dismissal should have been without prejudice pursuant to the express terms of

the statute governing motions to dismiss charges. We agree.

¶ 31 Pursuant to the applicable statute, the trial court may dismiss an indictment, information,

or criminal complaint on any of the 11 grounds set forth in the statute. 725 ILCS 5/114-1(a)

(West 2016). Pertinent here, the court may dismiss any charge that does not state an offense. Id.

12 § 114-1(a)(8). The statute provides that the dismissal of charges “upon the grounds set forth in

subsections (a)(4) through (a)(11) of this Section shall not prevent the return of a new indictment

or the filing of a new charge.” Id. § 114-1(e). The charges in this case were dismissed under

subsection (a)(8) for failure to state an offense. Thus, under the express statutory language, the

dismissal of count II should have been without prejudice. We note that it may be possible for the

State to allege additional facts showing that the defendant exploited his position to place the

tracking device on the vehicle whether or not this conduct was part of his authorized duties as a

member of the Clinton County Board. We therefore conclude that count II should have been

dismissed without prejudice.

¶ 32 Finally, we note that the defendant argues that the statute is unconstitutional. The trial

court did not reach this claim. Therefore, we believe it would be inappropriate for us to do so at

this time.

¶ 33 III. CONCLUSION

¶ 34 For the foregoing reasons, we conclude that count I of the information should not have

been dismissed at all and that count II should have been dismissed without prejudice. We

therefore reverse the court’s order dismissing the charges against the defendant with prejudice.

¶ 35 Reversed.