2021 IL App (2d) 180543 No. 2-18-0543 Opinion filed February 22, 2021 ______________________________________________________________________________
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. 17-CF-1428 ) STEPHEN P. SWEIGART, ) Honorable ) John A. Barsanti, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Presiding Justice Bridges and Justice Schostok concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant, Stephen Sweigart, was convicted of failing to register in
accordance with the requirements of the Murderer and Violent Offender Against Youth
Registration Act (Act) (730 ILCS 154/10(a) (West 2016)). The court sentenced him to two years
in prison. Defendant appeals. We reverse defendant’s conviction because the State failed to prove
the offense beyond a reasonable doubt.
¶2 I. BACKGROUND
¶3 A. Overview of the Act
¶4 Before addressing the facts of defendant’s case, we provide an overview of some of the
most pertinent provisions of the Act. 2021 IL App (2d) 180543
¶5 A person who is convicted of certain crimes, including child abduction, is required to
register as a “violent offender against youth” in accordance with the Act. See 730 ILCS
154/5(a)(1)(A), (b)(3), 10(a) (West 2016). When registering, the person must provide law
enforcement with accurate information, including, but not limited to, his or her current address.
730 ILCS 154/10(a) (West 2016). The law enforcement agency that registers a person “shall
forward any required information to the Department of State Police” and “enter the information
into the Law Enforcement Agencies Data System (LEADS).” 730 ILCS 154/45 (West 2016).
¶6 Irrespective of any changes in living arrangements, a person subject to the Act must
periodically report in person to “the appropriate law enforcement agency with whom he or she last
registered.” 730 ILCS 154/30 (West 2016). All registrants must so report at least annually. 730
ILCS 154/30 (West 2016). Persons who lack a fixed residence, however, are subject to more
frequent reporting. The Act defines “fixed residence” as “any and all places that a violent offender
against youth resides for an aggregate period of time of 5 or more days in a calendar year.” 730
ILCS 154/5(i) (West 2016). A person without a fixed residence “must report weekly, in person,
with the sheriff’s office of the county in which he or she is located in an unincorporated area, or
with the chief of police in the municipality in which he or she is located.” 730 ILCS 154/10(a)
(West 2016).
¶7 Aside from the required periodic reporting, a person subject to the Act who establishes a
new residence or takes up a temporary domicile in any Illinois county must register with law
enforcement in the new location within five days. 730 ILCS 154/10(b) (West 2016). The Act’s
definitions of “place of residence” and “temporary domicile” substantially mirror the definition of
a “fixed residence”: i.e., any and all places where the person “resides for an aggregate period of
time of 5 or more days in a calendar year.” 730 ILCS 154/5(i) (West 2016).
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¶8 Section 30 of the Act further specifies the requirements for when a person who is subject
to the Act changes his or her address. That section provides, in relevant portion:
“If any person required to register under this Act lacks a fixed residence or temporary
domicile, he or she must notify, in person, the agency of jurisdiction of his or her last
known address within 5 days after ceasing to have a fixed residence and if the offender
leaves the last jurisdiction of residence, he or she must, within 48 hours after leaving,
register in person with the new agency of jurisdiction. If any other person required to
register under this Act changes his or her residence address, place of employment, or
school, he or she shall report in person to the law enforcement agency with whom he or
she last registered of his or her new address, change in employment, or school and register,
in person, with the appropriate law enforcement agency within the time period specified in
Section 10. The law enforcement agency shall, within 3 days of the reporting in person by
the person required to register under this Act, notify the Department of State Police of the
new place of residence, change in employment, or school.” 730 ILCS 154/30 (West 2016).
¶9 A person who violates the Act’s provisions commits a Class 3 felony. 730 ILCS 154/60
(West 2016). Subsequent violations of the Act are Class 2 felonies. 730 ILCS 154/60 (West 2016).
¶ 10 B. Defendant’s Alleged Violation of the Act
¶ 11 On December 6, 2017, defendant was charged by superseding indictment with violating
the Act in the following manner on or about June 1, 2017:
“defendant, a violent offender against youth, knowingly failed to register weekly as
required as a homeless person, on or before May 31, 2017, with his last registration
occurring on May 24, 2017, in accordance with the provisions of the [Act], with the Aurora
Police Department.”
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¶ 12 The evidence at trial showed the following. In 2011, defendant was convicted of child
abduction (720 ILCS 5/10-5(b)(10) (West 2008)). As a result, he was required to register pursuant
to the Act as a “violent offender against youth.” On April 19, 2016, defendant registered with the
Du Page County Sheriff’s Office and reported that he resided at an address in Eola. Defendant
subsequently relocated to Aurora. Between January 12 and May 24, 2017, he registered with the
Aurora Police Department 11 times. Specifically, on January 12, 2017, he designated his address
as a hotel at 2380 Farnsworth Avenue, Room 105. On February 8, 2017, he changed his address
to a hotel at 2450 N. Farnsworth Avenue. From March 29 through May 9, 2017, he registered
weekly and indicated that he was homeless. When defendant registered as homeless, he sometimes
filled out a “log sheet” indicating where he slept the previous seven nights. Those log sheets
indicated that defendant spent April 4 through April 23, 2017, at 659 S. River Street, April 24 at
1250 N. Farnsworth Avenue (there was no room number specified), and April 25 through May 8
at 1250 N. Farnsworth, Room 136. On May 16, 2017, defendant designated his fixed residence as
2450 N. Farnsworth Avenue, Room 136. On May 24, 2017, he registered as homeless.
¶ 13 Jennifer Logan, an administrative secretary for the Aurora Police Department, testified for
the State regarding her interaction with defendant on May 24, 2017. Defendant advised Logan that
he was homeless and that he had no friends or family with whom he could stay. When Logan asked
defendant where in the city he was going to be staying, he responded that he “would just be walking
around.” Logan advised defendant that he needed to “come back on May 31 of 2017 if he remained
homeless.” Defendant then told Logan that he was “attempting to be compliant.” He added,
however, that “maybe he just wouldn’t come back so that he could get picked up so he would at
least have a place to stay.” Logan attempted to assist defendant with finding a place to stay, but
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she was unsuccessful. Defendant signed a form on May 24, 2017, instructing him that he was
required to register again on May 31, 2017, and he was given a copy of that form.
¶ 14 Defendant did not register with the Aurora Police Department after May 24, 2017. In July
2017, Logan informed Officer Jeff Sherwood of the Aurora Police Department that defendant had
not registered, and a warrant was issued for defendant’s arrest. On September 19, 2017, defendant
was arrested at the hotel at 2450 N. Farnsworth Avenue (no room number was specified on the
booking form). Logan testified that she did not know defendant’s housing status after May 24,
2017. Sherwood likewise acknowledged that defendant “could have been anywhere” between May
24 and September 19, 2017.
¶ 15 Neither Logan nor Sherwood—the State’s only two witnesses—were ever specifically
questioned as to whether defendant registered in any jurisdiction other than Aurora after May 24,
2017. The prosecutor questioned Sherwood on direct examination as follows:
“Q. Now at the end of July 2017, did you become aware through Jennifer Logan
whether the defendant had stopped coming to register?
A. Yes.
Q. Okay. And upon becoming aware that the defendant had failed—or had stopped
coming to register, did you check that computer base with his registration information?
Q. And when you checked the computerized registration, did you see that the last
date that he had reported was May 24 of 2017?
A. That’s correct.”
It is unclear whether Sherwood meant that defendant never reported to any jurisdiction after May
24, 2017, or merely that defendant never again reported to the Aurora Police Department.
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¶ 16 Defendant moved for a directed verdict, arguing that the State failed to prove that he was
homeless on May 31 or June 1, 2017 (the two dates specified in the superseding indictment). In
presenting her argument, defense counsel reasoned that, if defendant had procured a fixed
residence in the week between May 24 and May 31, 2017, he would have been within the five-day
grace period to notify the Aurora Police Department of his new residence. Defense counsel also
emphasized that defendant was not charged with failing to notify the Aurora Police Department
that he procured a fixed residence. The prosecutor responded that the evidence showed that
defendant “never registered anywhere” after May 24, 2017. The prosecutor contended that the
State was not required to prove that defendant was homeless, just that he registered as homeless
on May 24, 2017. The prosecutor acknowledged that, if defendant procured a fixed residence on
May 31, 2017, he would have been allowed to register within five days thereafter. However, the
prosecutor maintained that the date of the offense alleged in the indictment was not an element of
the offense and that the evidence showed that defendant “never registered anywhere a fixed address
after that.” In her rebuttal argument, defense counsel noted that there was no evidence that the
Aurora Police Department checked whether defendant registered with any other jurisdiction.
¶ 17 The court denied the motion for a directed verdict. The court reasoned that the State
presented evidence that defendant “was given the date of the 31st to come in and he did not.” The
court also believed that there was evidence that defendant was homeless on May 31, 2017, because
(1) defendant indicated on May 24, 2017, that he was homeless and (2) defendant never notified
the Aurora Police Department after May 24, 2017, that he had a fixed residence.
¶ 18 Defendant presented no evidence. The parties submitted competing nonpattern jury
instructions, which reflected their disagreement as to whether the State had to prove that defendant
was homeless. The court gave the State’s instructions. The jury found defendant guilty. The court
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denied defendant’s posttrial motion and sentenced him to two years in prison. Defendant timely
appealed.
¶ 19 II. ANALYSIS
¶ 20 Defendant challenges the sufficiency of the evidence, the propriety of two jury instructions,
and certain comments that the prosecutor made during closing arguments. Because we hold that
the evidence was insufficient to support the conviction, we need not address the jury instructions
or the closing arguments.
¶ 21 Defendant’s sufficiency-of-the-evidence argument is as follows. Case law interpreting the
analogous Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2018)) holds
that one of the elements that the State must prove is that the offender lacked a fixed residence in
the subject jurisdiction at the time of the alleged violation. Although there is authority to the
contrary, such authority is factually distinguishable from the present case. Accordingly, we should
hold that the State was required to prove here that defendant lacked a fixed residence in Aurora on
or about June 1, 2017. The State, however, never proved this. To the contrary, the evidence showed
that (1) his housing status “fluctuated constantly” in 2017, (2) he provided multiple addresses in
his registrations in 2017 that could have been fixed residences for purposes of the Act, and (3) he
ultimately was arrested at one of the addresses that he had previously listed as his fixed residence.
Moreover, having last registered as homeless, if defendant left Aurora between May 24 and May
31, 2017, he was under no obligation to inform the Aurora Police Department that he relocated.
The State failed to prove that, under these circumstances, he was required to register in Aurora
after May 24, 2017.
¶ 22 The State responds that it proved beyond a reasonable doubt that defendant violated the
Act, arguing as follows. Case law does not support defendant’s contention that the prosecution
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was required to establish, as an element of the offense, defendant’s homelessness after May 24,
2017. Defendant registered as homeless on May 24, 2017, so his status under the Act remained in
effect until he reported a different status to the Aurora Police Department or until he registered in
a different jurisdiction. Although defendant presents hypothetical scenarios under which he could
have been innocent of the charged offense, such arguments do not rise to the level of reasonable
doubt. Moreover, contrary to what defendant argues, had he left Aurora after May 24, 2017, he
would have been required to notify Aurora of that relocation. Assuming, arguendo, that the
prosecution was required to prove defendant’s homeless status as an element of the offense, the
prosecution met its burden here. On that point, the State mentions that (1) defendant registered
consistently with the Aurora Police Department during the first five months of 2017, (2) he
indicated in many of those registrations that he was homeless, (3) his comments to Logan on May
24, 2017, suggested that he intended (a) to remain homeless in Aurora and (b) not to comply with
the Act’s reporting requirements, and (4) he was eventually arrested in Aurora.
¶ 23 A. Elements of the Offense
¶ 24 The threshold issue is whether the State was required to prove that defendant was in Aurora
on or about June 1, 2017, and that he lacked a fixed residence at that time. This presents a question
of law, which we review de novo. People v. Scott, 2017 IL App (4th) 150529, ¶ 15.
¶ 25 The parties have not cited, and we did not find, any case arising under the Act that would
be helpful to our analysis. We agree, however, that certain cases arising under SORA are relevant
to our analysis, as the two registration schemes contain similar language. Although the parties cite
many cases, three cases warrant discussion: People v. Wlecke, 2014 IL App (1st) 112467, Scott,
and People v. Woods, 2020 IL App (1st) 173022.
¶ 26 1. Wlecke
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¶ 27 In Wlecke, the defendant was charged with, and convicted of, violating SORA by failing
to report weekly while lacking a fixed residence. Wlecke, 2014 IL App (1st) 112467, ¶¶ 7, 15. The
evidence showed that the defendant was released from prison on June 11, 2010, at which time he
was given a temporary Illinois Department of Corrections identification card, listing his address
as a veterans’ hospital at 820 S. Damen Avenue in Chicago. Wlecke, 2014 IL App (1st) 112467,
¶¶ 8-9. On June 14, 2010, the defendant timely attempted to register with the Chicago Police
Department but a police officer turned him away for lack of proper identification. Wlecke, 2014
IL App (1st) 112467, ¶ 10. The officer did not tell the defendant at that time that he would have to
report weekly until he could provide satisfactory proof of his residence. Wlecke, 2014 IL App (1st)
112467, ¶ 10. On June 20, 2010, the defendant had an unrelated encounter with the police and was
subsequently arrested for failing to register as a sex offender. Wlecke, 2014 IL App (1st) 112467,
¶ 11. During the defendant’s interrogation in connection with that arrest, he told a police officer
that he had been staying with friends at 4928 West School Street in Chicago. Wlecke, 2014 IL App
(1st) 112467, ¶ 12. Apart from this statement, the State presented no evidence at the defendant’s
trial of where the defendant lived between June 11 and June 20, 2010. Wlecke, 2014 IL App (1st)
112467, ¶ 13.
¶ 28 On appeal, the defendant argued that the evidence did not support his conviction, because
the State failed to prove either that he lacked a fixed residence or that he did not report weekly.
Wlecke, 2014 IL App (1st) 112467, ¶ 19. The appellate court agreed with this argument and
reversed the conviction. Wlecke, 2014 IL App (1st) 112467, ¶ 19. The court explained:
“To sustain [the defendant’s] conviction for violating section 6 of [SORA], the
State was required to prove beyond a reasonable doubt that [the defendant] (1) lacked a
‘fixed residence’ and (2) failed to report weekly. [Citation.] In the context of this case,
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proving that [the defendant] lacked a fixed residence would have required the State to
adduce evidence that during the nine days following his release from prison and before his
arrest, [the defendant] did not stay in any one place for at least five days. But the record
lacks any evidence of [the defendant’s] presence (or absence) at either of the two addresses
given by him—820 S. Damen or 4928 W. School Street—for an aggregate period of five
days or more between June 11 and June 20, 2010.” Wlecke, 2014 IL App (1st) 112467,
¶ 21.
The court rejected the State’s arguments that (1) the veterans’ hospital could not have been a “fixed
residence” for purposes of SORA and (2) SORA required the defendant to provide a government-
issued identification when he attempted to register with the Chicago Police Department on June
14, 2010. Wlecke, 2014 IL App (1st) 112467, ¶¶ 22-29. The court also rejected the State’s
argument that the defendant’s comment after being arrested on June 20, 2010—that he had been
staying with friends—was an admission that he lacked a fixed residence. Wlecke, 2014 IL App
(1st) 112467, ¶ 30. On this point, the court emphasized that the defendant’s lack of a fixed
residence was “a critical element for the State to prove.” Wlecke, 2014 IL App (1st) 112467, ¶ 31.
According to the court, because SORA defined “fixed residence” broadly, as any place where a
person resides for more than five aggregate days in a year, the defendant’s comment that he had
been staying with friends was not an admission that he lacked a fixed residence. Wlecke, 2014 IL
App (1st) 112467, ¶ 31.
¶ 29 The court explained, however, that the State did not have to prove that there was “no
address anywhere” that could be the defendant’s fixed residence. Wlecke, 2014 IL App (1st)
112467, ¶ 34. Instead, to prove that the defendant lacked a fixed residence, the State had to prove
whether he “was living at either of the two addresses given between June 11 and June 20, 2011
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[sic].” Wlecke, 2014 IL App (1st) 112467, ¶ 34. The court noted that the State could have met its
burden by obtaining hospital records or by interviewing the residents of 4928 West School Street.
Wlecke, 2014 IL App (1st) 112467, ¶ 34. But in the absence of any evidence as to where the
defendant lived during the nine-day period, the State failed to prove that the defendant violated
SORA. Wlecke, 2014 IL App (1st) 112467, ¶ 34.
¶ 30 The court further determined that the State failed to prove that the defendant did not report
weekly. Wlecke, 2014 IL App (1st) 112467, ¶ 37. The court reasoned that the defendant “made a
good faith effort to comply” with SORA on June 14, 2010, but he was inappropriately turned away
by a police officer. Wlecke, 2014 IL App (1st) 112467, ¶ 38. In the court’s view, if the defendant
submitted insufficient identification on June 14, 2010, he should have been registered as lacking a
fixed residence, not turned away. Wlecke, 2014 IL App (1st) 112467, ¶ 38. Had the officer
registered the defendant as lacking a fixed residence on June 14, 2010, the defendant would not
have been in violation of SORA six days later when he was arrested. Wlecke, 2014 IL App (1st)
112467, ¶ 38.
¶ 31 2. Scott
¶ 32 In Scott, the defendant was charged with, and convicted of, failing to register as a sex
offender. Scott, 2017 IL App (4th) 150529, ¶ 1. The evidence at trial showed that the defendant
last registered with the Jacksonville Police Department on August 11, 2014. Scott, 2017 IL App
(4th) 150529, ¶ 6. At that time, the defendant signed a form that listed a mailing address, but he
indicated that he did not live there, and he registered as homeless. Scott, 2017 IL App (4th) 150529,
¶ 8. The form instructed the defendant that his next registration date was August 18, 2014. Scott,
2017 IL App (4th) 150529, ¶ 8. The defendant did not report on August 18, 2014. Scott, 2017 IL
App (4th) 150529, ¶ 6. Instead, he reported to the Jacksonville Police Department on August 21,
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2014, at which time he told a police officer that he “thought he had a grace period.” Scott, 2017 IL
App (4th) 150529, ¶¶ 6-7. At that point, he was arrested for failing to register on August 18, 2014.
Scott, 2017 IL App (4th) 150529, ¶¶ 4, 7.
¶ 33 Following his conviction, the defendant appealed. Relying on Wlecke, he argued that lack
of a fixed residence was an element of the crime and that the State failed to prove that he lacked a
fixed residence. Scott, 2017 IL App (4th) 150529, ¶¶ 15, 23. Specifically, he claimed that his report
to the police on August 11, 2014, that he was homeless failed to establish that he lacked a fixed
residence. Scott, 2017 IL App (4th) 150529, ¶ 22. The appellate court rejected this argument,
asserting that Wlecke involved “a very different factual situation” than the case at bar. Scott, 2017
IL App (4th) 150529, ¶ 23. The court explained:
“Unlike the defendant in Wlecke, who never registered as a sex offender, defendant
had registered as a sex offender. Additionally, this case does not involve a change in living
circumstances that could warrant a new registration. [Citation.] Here, defendant did not
register a fixed residence and thus acquiesced to the weekly reporting requirement, which
is the most onerous registration requirement [citation]. Defendant signed the form that
stated he needed to report back in one week, which was August 18, 2014. Thus, unlike
Wlecke, no issue exists as to whether the weekly reporting provision of [SORA] applied to
defendant, and ‘the lack of a fixed residence’ is not an element of the crime.” Scott, 2017
IL App (4th) 150529, ¶ 25.
Accordingly,
“Under the facts of this case, the State did not have to prove defendant lacked a
fixed residence. Since the lack of a fixed residence was not a element [sic] of the crime in
this case, we do not address defendant’s insufficiency of the evidence argument, including
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whether the term ‘homeless’ constitutes lacking a fixed residence under [SORA].” Scott,
2017 IL App (4th) 150529, ¶ 26.
For similar reasons, the court also rejected the defendant’s contention that the jury instructions
should have specified that the State had to prove that he lacked a fixed residence. Scott, 2017 IL
App (4th) 150529, ¶ 29. The court reasoned that “the lack of a fixed residence establishes the
applicability of the weekly reporting requirement.” Scott, 2017 IL App (4th) 150529, ¶ 29. That
requirement “was not at issue and not an element of the crime” here, because the defendant
“acquiesced to the weekly reporting requirement when he signed his August 11, 2014, registration
form.” Scott, 2017 IL App (4th) 150529, ¶ 29.
¶ 34 3. Woods
¶ 35 In Woods, the State charged the defendant with violating SORA in that, between June 4
and June 9, 2016, he was required to report as a sex offender, he lacked a fixed residence, and he
failed to report weekly with the Chicago Police Department. Woods, 2020 IL App (1st) 173022,
¶ 4. The evidence at trial showed that the defendant registered with the Chicago Police Department
11 times in 2015 and 2016. Woods, 2020 IL App (1st) 173022, ¶ 5. When the defendant would
register, he would report lacking a fixed residence, even though he presented the police with an
identification card indicating that his residence was 11201 South Vernon Avenue in Chicago.
Woods, 2020 IL App (1st) 173022, ¶ 6. When the defendant last registered on May 27, 2016, he
informed the police that he spent the preceding week sleeping on a Red Line train. Woods, 2020
IL App (1st) 173022, ¶ 6. On June 9, 2016, a police officer pulled the defendant over for an
unrelated traffic stop. Woods, 2020 IL App (1st) 173022, ¶ 7. The defendant presented that officer
with an identification card listing his address as 11201 South Vernon Avenue. Woods, 2020 IL
App (1st) 173022, ¶ 7. The car the defendant was driving was registered to that same address, and
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he told the officer that he lived at that address. Woods, 2020 IL App (1st) 173022, ¶ 7. During this
stop, the officer learned that the defendant was not current on his sex-offender registration, and the
defendant was arrested. Woods, 2020 IL App (1st) 173022, ¶ 7. The trial court found the defendant
guilty. Woods, 2020 IL App (1st) 173022, ¶ 9.
¶ 36 The defendant appealed, arguing that the State failed to prove him guilty beyond a
reasonable doubt. Woods, 2020 IL App (1st) 173022, ¶ 12. The appellate court agreed and reversed
the conviction. Woods, 2020 IL App (1st) 173022, ¶ 32. The court noted that “the State charged
defendant with violating SORA’s section 6 for failing to register in Chicago for the period of June
4 to June 9, 2016.” Woods, 2020 IL App (1st) 173022, ¶ 14. Citing Wlecke, the court asserted that,
“to sustain a conviction under section 6 [of SORA] for failing to report on a weekly basis as a sex
offender who lacks a fixed residence, the State must prove beyond a reasonable doubt that the
defendant ‘(1) lacked a “fixed residence” and (2) failed to report weekly.’ ” Woods, 2020 IL App
(1st) 173022, ¶ 16 (quoting Wlecke, 2014 IL App (1st) 112467, ¶ 21). Given the State’s theory, the
State “was required to prove not only that defendant lacked a fixed residence during this window
of time [(June 4 through June 9, 2016)] and failed to report to the Chicago Police Department, but
also that defendant was residing in Chicago during the relevant time and failed to so report.”
(Emphasis in original.) Woods, 2020 IL App (1st) 173022, ¶ 17.
¶ 37 According to the court, even if the State proved that the defendant resided in Chicago
between June 4 and June 9, 2016, the State failed to prove that the defendant lacked a fixed
residence in Chicago during that time. Woods, 2020 IL App (1st) 173022, ¶ 19. The court
explained that, although the evidence showed that the defendant lived in Chicago without a fixed
residence for a significant period leading up to his last registration, the State’s witnesses had “no
idea” about the defendant’s housing status after May 27, 2016, and those witnesses made no effort
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to confirm that the defendant was homeless. Woods, 2020 IL App (1st) 173022, ¶ 19. The court
determined that the trial court erred in inferring from the defendant’s prior homelessness that he
was homeless from June 4 through June 9, 2016. Woods, 2020 IL App (1st) 173022, ¶ 20. The
court refused to “ ‘fill in the gaps in the State’s evidence with conjecture’ as to defendant’s housing
status.” (Internal quotation marks omitted.) Woods, 2020 IL App (1st) 173022, ¶ 20 (quoting
People v. James, 2019 IL App (1st) 170594, ¶ 22).
¶ 38 The court continued:
“The same problems of proof that existed in Wlecke exist here. The State did not
prove that the address defendant gave the police on South Vernon Avenue was not a ‘fixed
residence’ within the meaning of SORA. The State did not show that defendant did not
actually live there, even if only recently, and the fact that he was driving a car
registered to that address certainly placed at least some credibility in the possibility
that he did, in fact, temporarily reside there—five days in the aggregate, as required by
SORA.” Woods, 2020 IL App (1st) 173022, ¶ 23.
¶ 39 The court rejected the State’s various attempts to “salvage this conviction” on appeal
(Woods, 2020 IL App (1st) 173022, ¶ 24), including the State’s efforts to “shift the burden to
defendant to prove that he was not homeless” between June 4 and June 9, 2016 (emphasis in
original) (Woods, 2020 IL App (1st) 173022, ¶ 25). According to the court, “[i]t was the obligation
of the State, which charged defendant with failing to report weekly as a person lacking a fixed
residence, to prove that defendant was, in fact, without a fixed residence—that his ‘status as
homeless in Chicago’ had not changed since his last reporting.” (Emphasis in original.) Woods,
2020 IL App (1st) 173022, ¶ 25. The court hypothesized that the State might have been able to
meet this burden had the defendant made some admission or if the police “looked into the matter
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and confirmed that defendant did not, in fact, reside at that South Vernon address or anywhere else
during that time window.” Woods, 2020 IL App (1st) 173022, ¶ 26. In the court’s view, the State
“ ‘failed to meet its affirmative obligation to investigate the charge.’ ” (Internal quotation marks
omitted.) Woods, 2020 IL App (1st) 173022, ¶ 26 (quoting James, 2019 IL App (1st) 170594,
¶ 22).
¶ 40 Finally, the court addressed the State’s argument that the defendant’s failure to notify the
Chicago Police Department of any change of address meant that he must have remained homeless
between June 4 and June 9, 2016. Woods, 2020 IL App (1st) 173022, ¶ 27. The court rejected this
argument for three reasons: (1) the fact that the defendant did not report a fixed residence did not
necessarily mean that he lacked a fixed residence, (2) no witness directly testified that the
defendant did not report a fixed residence to the Chicago Police Department, and (3) the defendant
arguably reported a fixed residence on and prior to May 27, 2016, when he presented an
identification card with an address on it, even though he reported on those occasions that he was
homeless. Woods, 2020 IL App (1st) 173022, ¶¶ 28-30.
¶ 41 The court in Woods did not cite the Fourth District’s opinion in Scott.
¶ 42 4. The State Was Required to Prove That Defendant Was in Aurora
On or About June 1, 2017, and That He
Lacked a Fixed Residence at That Time
¶ 43 After considering Wlecke, Scott, and Woods, and upon reviewing both the allegations of
the superseding indictment and the evidence adduced at trial, we hold that the State was required
to prove that defendant was in Aurora on or about June 1, 2017, and that he lacked a fixed residence
at that time.
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¶ 44 Woods offers a comprehensive and convincing explanation of why the State must prove its
allegations and refrain from either shifting the burden to the defendant or relying on speculation
to fill in the gaps. At first blush, Woods might appear inconsistent with Scott, as those cases reached
contrary conclusions about whether the State was required to prove that each respective defendant
lacked a fixed residence. But the factual differences between Scott and Woods explain their results.
In Scott, there apparently was no specific allegation in the charging instrument that the defendant
lacked a fixed residence on August 18, 2014. See Scott, 2017 IL App (4th) 150529, ¶ 4. In Woods,
on the other hand, the charging instrument alleged that the defendant lacked a fixed residence
between June 4 and June 9, 2016. Woods, 2020 IL App (1st) 173022, ¶ 4. Moreover, key to the
court’s decision in Scott was that the case did “not involve a change in living circumstances that
could warrant a new registration.” Scott, 2017 IL App (4th) 150529, ¶ 25. To that end, unlike in
Woods, there was no reason to suspect that the defendant in Scott, despite having previously
registered as homeless, had a fixed residence. Most importantly, unlike in Woods, when the
defendant in Scott was arrested, he effectively admitted to the police that his living circumstances
had not changed since the date that he last registered. Specifically, on August 21, 2014, he returned
to the same police station where he had registered 10 days earlier, and he told the police at that
time that he believed that he had some sort of a grace period for reporting. These factual differences
account for the divergent holdings in Scott and Woods as to whether the prosecution was required
to prove that each respective defendant lacked a fixed residence.
¶ 45 The circumstances here are closer to those in Woods than to those in Scott. The State
charged defendant with violating the Act in the following manner on or about June 1, 2017:
“defendant, a violent offender against youth, knowingly failed to register weekly as
required as a homeless person, on or before May 31, 2017, with his last registration
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occurring on May 24, 2017, in accordance with the provisions of the [Act], with the Aurora
Police Department.” (Emphases added.)
The charging instrument was ambiguous. Was the State alleging that defendant was required to
register as a homeless person with the Aurora Police Department on or before May 31, 2017? Or
was the State alleging that defendant was required to register as a homeless person somewhere on
or before May 31, 2017, having last registered with the Aurora Police Department? From the
prosecutor’s opening statement, it appears that the State’s theory was the former. Irrespective of
that ambiguity, the State plainly alleged in the superseding indictment that defendant was required
to register “as a homeless person” on or before May 31, 2017—in other words, that defendant
continued to lack a fixed residence after May 24, 2017. Thus, the charging instrument more closely
resembled the charging instrument in Woods than the one in Scott.
¶ 46 Additionally, in Scott, there was no evidence that the defendant ever registered a fixed
residence. Here, by contrast, during 2017, defendant alternated between registering fixed
residences and registering as homeless. Defendant ultimately was arrested at a location in Aurora
that he had previously designated as a fixed residence. Accordingly, it was not a foregone
conclusion that defendant lacked a fixed residence after May 24, 2017.
¶ 47 Finally, the defendant in Scott never disputed that he remained within the jurisdiction of
the Jacksonville Police Department between August 11 and 21, 2014. Thus, the reviewing court
had no occasion to consider whether the State was required to prove that the defendant remained
within the jurisdiction of the Jacksonville Police Department. Unlike the defendant in Scott,
defendant made no admissions upon his arrest. And unlike the defendant in Scott, defendant argues
on appeal that the State failed to prove that he was within the jurisdiction of the Aurora Police
Department at the time specified in the charging instrument.
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¶ 48 As illustrated by Wlecke, Scott, and Woods, what the prosecution must prove at trial
depends on the circumstances presented and how the prosecution alleges that the defendant
violated the statutory requirements. We recognize that it would be a tall order, and in many
scenarios an insurmountable task, to require the prosecution to prove the daily whereabouts of
registrants who fail to notify the proper authorities of their movements. The State’s hands,
however, are not tied. In State v. Peterson, 230 P.3d 588, 592 (Wash. 2010), upon construing
Washington’s sex-offender registration requirements, the Supreme Court of Washington
recognized that “it is possible to prove that a registrant failed to register within any applicable
deadline without having to specify the registrant’s particular residential status.” The court reasoned
that it would be “absurd” to “allow[ ] individuals to escape punishment when they have failed to
register within the prescribed deadlines.” Peterson, 230 P.3d at 593.
¶ 49 We agree with those propositions. If the prosecution can prove that a person subject to the
Act failed to comply with the Act’s requirements under any potentially applicable deadline for
reporting or registering, it certainly would be possible to sustain a conviction without proving the
defendant’s whereabouts during the time when he failed to report or register. Here, for example,
if the State had evidence that defendant failed to timely register in any jurisdiction after last
registering in Aurora as homeless on May 24, 2017, the State could have avoided having to prove
defendant’s whereabouts and living arrangements after that date. See Peterson, 230 P.3d at 593
(rejecting the argument that “an offender who successfully hides his whereabouts after moving
cannot be convicted of failure to register despite clear evidence that he failed to register within any
statutorily prescribed deadline”). Given that the Act requires the law enforcement agency that
registers a person to “forward any required information to the Department of State Police” and to
“enter the information into the Law Enforcement Agencies Data System (LEADS)” (730 ILCS
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154/45 (West 2016)), it would seem rather straightforward to determine whether a person has
registered in any other jurisdiction after a particular date. See also James, 2019 IL App (1st)
170594, ¶ 4 (noting that the defendant last registered as a sex offender in Illinois on August 21,
2012; there was no evidence that the police attempted to check whether the defendant had
registered in another state, though it was possible for the police to have done so); People v. Gomez,
2017 IL App (1st) 142950, ¶ 22 (noting that the evidence showed that the defendant “never
registered anywhere”).
¶ 50 Here, however, the State did not clearly pursue its case under a theory that would have
allowed the State to avoid having to prove defendant’s whereabouts and living arrangements after
May 24, 2017. As noted above, although the charging instrument was not a model of clarity, the
State explicitly alleged that defendant was required to register “as a homeless person” on or before
May 31, 2017. Moreover, at trial, the prosecutor never explicitly asked the State’s witnesses
whether defendant registered in any jurisdiction other than Aurora after May 24, 2017. In light of
the language in the superseding indictment, and considering that the State did not introduce
evidence that defendant failed to timely register in any jurisdiction other than Aurora, defendant’s
conviction can be upheld only if the State proved that defendant was required to register “as a
homeless person” with the Aurora Police Department after May 24, 2017. To meet its burden on
this point, the State had to prove that defendant was in Aurora on or about June 1, 2017, and that
he lacked a fixed residence at that time. See 730 ILCS 154/10(a) (West 2016) (“Any person who
lacks a fixed residence must report weekly, in person, *** with the chief of police in the
municipality in which he or she is located.”).
¶ 51 The State asserts that defendant merely presents hypothetical claims of innocence by
highlighting possible scenarios in which he would not have been in violation of the Act’s
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registration requirements. We note that the State was required to prove that defendant failed to
comply with the Act; it was not defendant’s burden to prove that he complied with the Act. See
Woods, 2020 IL App (1st) 173022, ¶ 25.
¶ 52 The State also argues that defendant was required to keep the Aurora Police Department
apprised of his whereabouts if he relocated. Defendant, however, is correct that the Act does not
explicitly require a registrant who lacks a fixed residence or a temporary domicile, and who most
recently registered as homeless, to notify the law enforcement agency with which he last registered
if he leaves the jurisdiction but remains in Illinois. A registrant in that situation would, however,
be required, within 48 hours of leaving, to “register in person with the new agency of jurisdiction.”
730 ILCS 154/30 (West 2016). We reiterate that the State never established that defendant failed
to register in any jurisdiction other than Aurora after May 24, 2017.
¶ 53 The State relies on People v. Jones, 2017 IL App (1st) 143718, and People v. Brock, 2015
IL App (1st) 133404. Those cases do not support the State’s arguments. It is true that both Jones
and Brock generally identified the elements for proving a violation of section 6 of SORA as (1) the
defendant was subject to SORA’s reporting requirements and (2) the defendant knowingly failed
to report in person at the requisite reporting agency. Jones, 2017 IL App (1st) 143718, ¶ 15; Brock,
2015 IL App (1st) 133404, ¶ 21. However, because of how the prosecution charged and tried the
case at bar, to prove that defendant knowingly failed to report in person at the requisite reporting
agency (allegedly the Aurora Police Department), the State had to prove that defendant was in
Aurora on or about June 1, 2017, and that he lacked a fixed residence at that time. Accordingly,
neither Jones nor Brock undermines our conclusion as to what the State had to prove to sustain
defendant’s conviction.
¶ 54 B. The State Failed to Prove That Defendant Was in
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Aurora On or About June 1, 2017, and That He
¶ 55 The question then becomes whether the State proved that defendant was in Aurora on or
about June 1, 2017, and that he lacked a fixed residence at that time.
¶ 56 When a criminal defendant challenges the sufficiency of the evidence, it is not our role to
retry him. People v. Robinson, 2013 IL App (2d) 120087, ¶ 11. Rather, the proper inquiry is
“ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”
(Emphasis in original.) Robinson, 2013 IL App (2d) 120087, ¶ 11 (quoting People v. Collins, 106
Ill. 2d 237, 261 (1985)). We will not substitute our judgment for the fact finder’s judgment on
issues regarding witness credibility or the weight of the evidence. Robinson, 2013 IL App (2d)
120087, ¶ 11. However, we may reverse a conviction “[w]here the evidence is so unsatisfactory
as to justify a reasonable doubt of the defendant’s guilt” or “where proof of an element is wholly
lacking.” Robinson, 2013 IL App (2d) 120087, ¶ 11.
¶ 57 We hold that the State failed to prove that defendant was in Aurora on or about June 1,
2017, and that he lacked a fixed residence at that time. Defendant apparently moved to Aurora in
early 2017. The evidence showed that defendant relocated frequently within Aurora during the
first five months of 2017. He vacillated between registering a fixed residence and registering as
homeless. When defendant last registered in Aurora on May 24, 2017, he registered as homeless.
Although defendant made a comment when he registered on May 24, 2017, that “maybe he just
wouldn’t come back so that he could get picked up so he would at least have a place to stay,” that
says nothing about whether he remained homeless on or about June 1, 2017, or whether he even
was in Aurora at that time. “[N]ot everyone who is homeless remains forever homeless ***.”
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Woods, 2020 IL App (1st) 173022, ¶ 20. Moreover, as we recognized in People v. Peterson, 404
Ill. App. 3d 145, 152 (2010), “[a] person can be homeless by any normal standards and still have
a ‘fixed residence’ if he or she has an occasional but predictable place to stay.” Additionally, a
person may obtain a fixed residence even before he or she spends five days at that location. See
Peterson, 404 Ill. App. 3d at 152 (“[A]n offender who waits to register an occasional address until
after he or she has stayed five days has waited too long, at least if he or she could have anticipated
the length of the stay.”). Indeed, one of the State’s witnesses here acknowledged that defendant
“could have been anywhere” between May 24 and September 19, 2017, when he was arrested.
And when defendant was arrested, the officers found him at 2450 N. Farnsworth Avenue, an
address that he twice told the Aurora Police Department in 2017 was his fixed residence. Under
these circumstances, the jury could only speculate that defendant was in Aurora on or about June
1, 2017, or that he lacked a fixed residence at that time. Accordingly, the State did not prove
beyond a reasonable doubt that defendant violated the Act’s registration requirements.
¶ 58 The State failed to meet its burden to prove that defendant violated the Act. Accordingly,
we reverse defendant’s conviction.
¶ 59 III. CONCLUSION
¶ 60 The judgment of the circuit court of Kane County is reversed.
¶ 61 Reversed.
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No. 2-18-0543
Decision Under Review: Appeal from the Circuit Court of Kane County, No. 17-CF-1428; the Hon. John A. Barsanti, Judge, presiding.
Attorneys James E. Chadd, Thomas A. Lilien, and Anthony J. Santella, of for State Appellate Defender’s Office, of Elgin, for appellant. Appellant:
Attorneys Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick for Delfino, Edward R. Psenicka, and Katrina M. Kuhn, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
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