2020 IL App (1st) 173022
THIRD DIVISION September 9, 2020
No. 1-17-3022
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) v. ) No. 16 CR 10568 ) DEVON WOODS, ) Honorable Ursula Walowski, ) Judge Presiding Defendant-Appellant. )
JUSTICE ELLIS delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice Cobbs concurred in the judgment and opinion.
OPINION
¶1 Defendant Devon Woods was convicted of violating a provision of the Sex Offender
Registration Act that requires individuals “lack[ing] a fixed residence” to report weekly to the
“law enforcement agency where the sex offender is located.” 730 ILCS 150/6 (West 2016). As
the State failed to prove beyond a reasonable doubt that defendant lacked a fixed residence
within Chicago from June 4 to June 9, 2016, we reverse defendant’s conviction outright.
¶2 BACKGROUND
¶3 Evidence of defendant’s prior criminal history is unnecessary to the disposition of this
appeal. It suffices to say that defendant was subject to the reporting requirements mandated by
the Sex Offender Registration Act (SORA). See 730 ILCS 150/1 et seq. (West 2016). 1-17-3022
¶4 In July 2016, a grand jury returned a one-count indictment charging defendant with
violating section 6 of SORA. See 730 ILCS 150/6 (West 2016). The indictment alleged that
between June 4 and June 9, 2016, defendant (1) was required to report under SORA, (2) lacked a
fixed residence, and (3) failed to report weekly with the Chicago Police Department.
¶5 At the short bench trial, Doris Gaskew, who worked in criminal registration for the
Chicago Police Department, testified that defendant had appeared before her 11 different times in
2015 and 2016 to register. (He did not register every week as required but tended to register
every other week, sometimes every third week. That is not the basis of the charge here.)
¶6 When defendant would register, he presented an identification card that listed his
residence as 11201 South Vernon Avenue in Chicago, Illinois. Despite that address, defendant
told Ms. Gaskew that he was homeless, and in his last registration with Gaskew on May 27,
2016, defendant indicated that he had spent the previous week staying and sleeping on the Red
Line train that runs through Chicago. Defendant also filled out a registration “for a person
lacking a fixed residence” during those past registrations, including the last time he registered on
May 27, 2016.
¶7 Chicago police officer Michael Hurley testified that, on June 9, 2016, in the 900 block of
West 87th Street in Chicago, he conducted a vehicular stop of defendant, who presented an
identification card that listed his address as 11201 South Vernon Avenue in Chicago. The car
defendant was driving was registered at that address as well. Hurley learned that defendant was
not current on his sex-offender registration and took him into custody. The following exchange
occurred on direct examination:
“Q. When you processed the defendant did you ask him where he lived?
A. Yes.
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Q. Did he indicate where he lived?
A. I believe he gave the address that was on the I.D. and the registered address of
the vehicle.
***
Q. [W]hen you process an individual do you put that information in the arrest
report under offender registration?
A. Yes. We would have confirmed the address he gave us. That would be the
address listed as his address of residence.”
¶8 The police report of defendant’s arrest was not admitted as an exhibit, but on cross-
examination, Officer Hurley admitted that he wrote down in his report that “the fact that there
was a vehicle registered to Mr. Woods in Chicago *** was not consistent with homelessness.”
The officer said, “I don’t recall” when asked whether he had a discussion with defendant “about
where he stayed from the night of June 4th to June 9th.”
¶9 The court ultimately found defendant guilty. In so doing, it provided the following
assessment of the evidence:
“The case here is very clear to me that the defendant was registering every week.
The Defense Exhibit No. 1 shows that sometimes it was every week. Sometimes he may
have skipped a week, but he was registering—which a reasonable inference is with a lack
of fixed address for quite some time.
Additionally, the testimony that was presented through Ms. Gaskew was that it
had a next court date when his date—not court date but next date when he is supposed to
register by, June 3rd. There was nothing presented that he did that. He basically did not.
He did not do that.
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The next time there is contact with the Chicago Police Department is when he is
arrested while driving a vehicle, and he gave an address. At that point it’s the same
address that he had on an I.D. that he gave to the registering officer, but regardless of that
he knew that he was supposed to be back it’s very clear on June 3rd and he wasn’t.
And basically the prior registering show that he lacked a fixed address, and that’s
what the State is alleging is that he lacked a fixed residence and therefore failed to report
as required any time that following week.
So I find that the evidence is clear here that the defendant did in fact violate the
Sex Offender Registration Act, and I am going to find him guilty.”
¶ 10 At the sentencing hearing, defendant was sentenced to six years’ imprisonment. This
appeal followed.
¶ 11 ANALYSIS
¶ 12 Defendant raises four arguments on appeal, but we need only consider one—that the
State failed to prove him guilty beyond a reasonable doubt.
¶ 13 Due process requires proof beyond a reasonable doubt of every element of the offense for
which a defendant is charged. People v. Lucas, 231 Ill. 2d 169, 178 (2008); People v. Nelson,
2020 IL App (1st) 151960, ¶ 48. The trier of fact need not “disregard inferences that flow
normally from the evidence before it, nor need it search out all possible explanations consistent
with innocence and raise them to a level of reasonable doubt.” People v. Jackson, 2020 IL
124112, ¶ 70. At the same time, no conviction can rest in whole or in part on speculation or
guesswork. People v. Smith, 185 Ill. 2d 532, 546 (1999) (“It is no help to speculate that the
defendant may have killed the victim. No citizen would be safe from prosecution under such a
standard.”).
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¶ 14 In this case, 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. That provision provides, in relevant
part, that “[a]ny person who lacks a fixed residence must report weekly, in person, to the
appropriate law enforcement agency where the sex offender is located.” 730 ILCS 150/6 (West
2016). SORA defines a “fixed residence” as “any and all places that a sex offender resides for an
aggregate period of time of 5 or more days in a calendar year.” Id. § 2(I). An “aggregate period”
of five days within “a calendar year” could mean five consecutive days or five days spread out
over the calendar year.
¶ 15 In other words, sex offenders whom society would consider “homeless” do not lack a
“fixed residence” under SORA if they have “ ‘an occasional but predictable place to stay.’ ”
People v. Wlecke, 2014 IL App (1st) 112467, ¶ 31 (quoting People v. Peterson, 404 Ill. App. 3d
145, 152 (2010)); see also Peterson, 404 Ill. App. 3d at 153 (“A person could have a ‘fixed
residence’ by the Act’s definition and yet be homeless by the ordinary way of speaking.”). We
agree with our supreme court and a previous decision of this court that, in the context of defining
the housing status of a sex offender in the context of “fixed residences” and “temporary
domiciles,” SORA “leaves something to be desired, in terms of clarity and consistency.” People
v. Pearse, 2017 IL 121072, ¶ 39; see also People v. James, 2019 IL App (1st) 170594, ¶ 18
(noting same).
¶ 16 In any event, as one might expect, to sustain a conviction under section 6 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.” Wlecke, 2014 IL App (1st) 112467, ¶ 21; see also id. ¶ 31 (“Whether [defendant]
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lacked a ‘fixed residence’ was a critical element for the State to prove to sustain a conviction
for violation of section 6 of the Act.”).
¶ 17 Section 6 of SORA is jurisdiction-specific, as the sex offender lacking a fixed residence
must report to “the appropriate law enforcement agency where the sex offender is located” (730
ILCS 150/6 (West 2016)), which is determined by reference to section 3 of SORA (id. § 3(a)).
See James, 2019 IL App (1st) 170594, ¶ 20 (location of offender’s residence is “critical element”
in proving SORA violation); People v. Gomez, 2017 IL App (1st) 142950, ¶¶ 28-30 (same).
Here, the claim is that defendant was residing in Chicago while lacking a fixed residence,
meaning he was supposed to report to the Chicago Police Department. 730 ILCS 150/3(a)(1)
(West 2016). So the State was required to prove not only that defendant lacked a fixed residence
during this window of time 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.
¶ 18 Taking the evidence in the light most favorable to the State, the State might have proven
that defendant was residing in Chicago during this time period. Officer Hurley believed he
recalled that, at the time of the arrest and processing, defendant listed the South Vernon address,
located in Chicago, as his current place of residence. That admission—the only evidence
anywhere in this trial about defendant’s residence during that window of time—might have been
enough to tie him to the jurisdiction of Chicago for reporting purposes. (We say this might be
enough because, to accept this admission but not accept that he was living at the South Vernon
address as a fixed residence along with it, of course, the fact finder would have to dice up the
admission, believing the “Chicago” part and disbelieving the “South Vernon address” part.)
¶ 19 But we need not consider that further because, even if the evidence were sufficient to
prove that defendant resided in Chicago during the relevant time period, the State did not prove
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that defendant lacked a fixed residence in Chicago between June 4 to June 9, 2016. The
testimony of Doris Gaskew, taken in the light most favorable to the State, proved only that for a
significant period of time, including up to two weeks before his arrest, defendant lived in
Chicago without a fixed residence. But she admitted, as she must, that she had no idea of
defendant’s housing status or where he lived after he left the police station on May 27, 2016.
Officer Hurley, for his part, admitted that he made no effort to confirm the “homeless” status of
defendant; as just noted, defendant gave him the South Vernon address, a dwelling of some kind,
as his residence, and Hurley also admitted writing in his report words to the effect that
defendant’s possession of a vehicle, registered to that same address, seemed inconsistent with his
being homeless.
¶ 20 Indeed, it did. The trial court inferred defendant’s homelessness from June 4 to June 9
from his previous homelessness. But not everyone who is homeless remains forever homeless;
indeed, SORA specifically contemplates, in its broad definitions of “fixed residence” and
“temporary domiciles,” that sex offenders may, from time to time, manage to secure shelter of a
non-permanent nature, if not of a more permanent kind. There was absolutely no evidence that
defendant did not have a fixed residence, nothing but speculation based on his history. “ ‘[W]e
will not fill in the gaps in the State’s evidence with conjecture’ ” as to defendant’s housing
status. James, 2019 IL App (1st) 170594, ¶ 22 (quoting Gomez, 2017 IL App (1st) 142950, ¶ 24).
The State must prove its case, namely that during the operative time window, defendant did not
have a fixed residence and thus was subject to weekly reporting under section 6.
¶ 21 In Wlecke, 2014 IL App (1st) 112467, ¶ 9, the defendant had been recently released from
prison and was given an identification card from the Department of Corrections that listed the
address of a Veterans Administration (VA) hospital on South Damen Avenue. Not long after he
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was released, the defendant was arrested for failing to report weekly as a person without a fixed
residence. Id. ¶ 11. The defendant told the police at that time that he had been “staying with
friends” at a specified address on School Street in Chicago. Id. ¶ 12. The State provided no other
evidence at trial as to where the defendant had been residing (as here), and the defendant did not
testify at trial (as here).
¶ 22 We reversed his conviction for a section 6 violation, reasoning that to constitute a “fixed
residence” under SORA, the defendant need only reside at that location for an aggregate of five
days out of a year. Id. ¶ 31; see 730 ILCS 150/2(I) (West 2016). The defendant’s admission that
he had been “staying with friends” at that address did not disqualify that residence from being a
“fixed residence,” and the State had not provided any proof to so disqualify it. Wlecke, 2014 IL
App (1st) 112467, ¶ 31. Nor did the State prove that the defendant had not resided, for any
period of time, at the VA hospital listed on his identification card, which we determined could
also be a “fixed residence” under the broad definition in SORA. Id. ¶ 31. Given “the State’s
failure to prove that Wlecke did not live at either address for an aggregate of five days between
June 11 and June 20, 2010, the evidence [was] insufficient to support a reasonable inference that
Wlecke lacked a ‘fixed residence.’ Therefore, proof of an essential element of the crime of which
Wlecke was convicted is missing.” Id. ¶ 32.
¶ 23 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. See 730 ILCS 150/2(I) (West 2016).
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¶ 24 We cannot agree with the State’s attempts to salvage this conviction. The State points to
“the absence of any evidence that [defendant’s] status as homeless had changed during that brief
period of time” in June 2016 and likewise notes, elsewhere in its brief, that there was “no
evidence that defendant’s status as homeless in Chicago, which had continued for almost a year
up to that point, had changed in the 13 days since he last registered.”
¶ 25 First of all, we disagree with that assessment of the evidence. Defendant told the police
he resided at the South Vernon address, and he was driving a car registered at that same address,
which certainly suggests he had recently been at that address. That is evidence that his “status as
homeless” had, in fact, changed. More to the point, the State cannot shift the burden to defendant
to prove that he wasn’t homeless. It 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.
¶ 26 The State could have used an admission by defendant but had none; it could have
presented evidence that officers looked into the matter and confirmed that defendant did not, in
fact, reside at that South Vernon address or anywhere else during that time window, but the State
offered no such proof. One way or another, the State had to prove that defendant “did not stay in
any one place for at least five days” during the relevant time window. Wlecke, 2014 IL App (1st)
112467, ¶ 21. But here, as in James, “[t]he State failed to meet its ‘affirmative obligation to
investigate the charge.’ ” Id. (quoting People v. Robinson, 2013 IL App (2d) 120087, ¶ 21).
¶ 27 The State correctly notes that, if defendant had stopped being “homeless” and had found
a residence, temporary or otherwise, he had an obligation to report that fact to the Chicago Police
Department. The State cites section 6 of SORA, but that requirement is actually found in section
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3. See 730 ILCS 150/3(b) (West 2016) (“Any sex offender *** regardless of any initial, prior, or
other registration, shall, within 3 days of *** establishing a residence *** register in person as
set forth in subsection (a) or (a-5).”). The fact that defendant did not so report, in the State’s
eyes, suggests that defendant had nothing to report about a fixed residence—he remained
homeless.
¶ 28 There are three problems with that argument. For one, the fact that defendant did not
report a fixed residence—if in fact he did not—does not necessarily mean he didn’t have one. It
might only mean he failed to report it.
¶ 29 Second, there was no evidence that defendant did not report a fixed residence with the
Chicago Police Department. Ms. Gaskew, the only one of the two State’s witnesses who could
possibly know the answer, was never asked that question. It was not part of the State’s proof.
Gaskew briefly discussed defendant’s overall registration file but focused on the form used for
homeless sex offenders, State’s exhibit No. 2, to show that defendant hadn’t reported as
homeless since May 27, 2016. Defense counsel, on cross-examination, made that point clear in
asking Ms. Gaskew about State’s exhibit No. 2:
“Q. That’s part of a log for Mr. Woods’ registration history; is that right?
Q. Is that kind of log—that log kept for every person who has to register in the
same way?
A. For the homeless weekly, yes.”
For the homeless weekly reporters, she said, not a log with defendant’s entire history.
¶ 30 And third, it is at least debatable that, by the State’s own proof, defendant did report the
South Vernon address in Chicago. Ms. Gaskew was clear in her testimony that defendant had
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already given her the South Vernon address, as indicated on State’s exhibit 1. All those weeks
that defendant reported to her, he gave her that address from his ID card, and she recorded it. He
told her he was homeless at the time, so she had him fill out the form (State’s exhibit No. 2) for
homeless sex offenders, but that does not change the fact that he gave her that South Vernon
address. Chicago had it on file all along.
¶ 31 Is that not complying with section 3’s requirement? That question has not been briefed
and is not directly before us. So we will leave for another day any attempt to untangle the
confusing and contradictory reporting provisions of sections 3 and 6. Suffice it for now to say
that the State put forth no affirmative proof that defendant lacked a fixed residence, such that
defendant was required to report weekly during the time period of June 4 to June 9, 2016. Absent
that proof, defendant’s conviction cannot stand.
¶ 32 We reverse outright defendant’s conviction.
¶ 33 Reversed.
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Decision Under Review: Appeal from the Circuit Court of Cook County, No. 16-CR- 10568; the Hon. Ursula Walowski, Judge, presiding.
Attorneys James E. Chadd, Patricia Mysza, and Ann B. McLennan, of for State Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg, Daniel Piwowarczyk, and Kim Przekota, Assistant Appellee: State’s Attorneys, of counsel), for the People.