Stewart v. Dalton

2023 IL App (3d) 230110-U

• Court: Appellate Court of Illinois
• Decided: November 14, 2023
• Docket: 3-23-0110
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2023 IL App (3d) 230110-U

Order filed November 14, 2023 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

CHERYL L. STEWART, ) Appeal from the Circuit Court ) of the 13th Judicial Circuit, Petitioner-Appellee, ) La Salle County, Illinois, ) v. ) Appeal No. 3-23-0110 ) Circuit No. 23-OP-26 ) SARA JEAN BUNCH DALTON, ) Honorable ) Karen C. Eiten, Respondent-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE PETERSON delivered the judgment of the court. Presiding Justice Holdridge and Justice Davenport concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: The circuit court had jurisdiction to issue a stalking no contact order. Issuance of the stalking no contact order was not against the manifest weight of the evidence.

¶2 Respondent-appellant, Sara Jean Bunch Dalton, appeals the La Salle County circuit

court’s issuance of a stalking no contact order. Respondent argues that the court did not have

jurisdiction to issue the order. She further argues that the contact was mutual and that there was

only one incident such that petitioner-appellee, Cheryl L. Stewart, failed to establish the requisite

course of conduct to obtain a stalking no contact order. We affirm. ¶3 I. BACKGROUND

¶4 Petitioner filed a petition seeking a stalking no contact order against respondent pursuant

to the Stalking No Contact Order Act (Act). 740 ILCS 21/1 et seq. (West 2022). The court

granted an emergency order and the matter proceeded to a plenary order hearing. Prior to any

testimony, the court reviewed surveillance video which was later admitted into evidence.

¶5 Respondent testified that she was in a store and saw petitioner. Respondent called

petitioner’s name and then asked something like “how is your rapist husband?” Respondent

stated that petitioner showed no emotion. Petitioner’s counsel asked respondent about the

statement she gave police, wherein she stated that petitioner looked confused and shocked.

Respondent clarified that petitioner had no reaction which she would say was shock. Petitioner

walked away from respondent and respondent again made a statement to petitioner about

petitioner’s “rapist husband.” Petitioner and respondent proceeded in opposite directions.

Respondent proceeded toward the checkout area. She saw petitioner from a distance walking

towards the front of the store. Respondent saw petitioner’s cart unattended. Respondent walked

to the self-checkout area and saw petitioner’s “head over a display staring right at [her].”

Respondent did not make another comment to petitioner until petitioner approached her. When

petitioner re-approached respondent, she “took that as an open conversation engagement again.”

Petitioner was on the phone and did not speak to her. Respondent asked petitioner if she wanted

to see the “photos of the case” and if she had seen them. Respondent testified that she may have

asked petitioner if she knew why her husband was fired from the police department. Respondent

heard petitioner telling the person she was on the phone with that respondent was getting ready

to leave the store. Respondent thought petitioner was on the phone with her husband.

2 ¶6 Respondent finished checking out and proceeded to the exit. Respondent testified that

petitioner was blocking her path. Petitioner was accompanied by a security guard. Petitioner and

the security guard narrowed the pathway to the exit so that the security guard needed to move in

order for respondent to walk through. Respondent exited the store and then took out her phone to

record petitioner. Respondent made a statement to the security guard that petitioner’s husband

was fired from the police department for being a rapist. When asked if the statement was made to

the security guard, knowing petitioner was right there, respondent stated that the statement was

made “to the vicinity.” Respondent started recording because she was nervous as she was exiting

the store and petitioner was telling the person she was on the phone with that she would follow

respondent to her car. Respondent became vocal again and started recording, in the hope that

petitioner would stop. The police arrived shortly thereafter. Respondent denied that the

statements she made were intended to intimidate petitioner.

¶7 Respondent testified that when she made the statements to petitioner she was not yelling

and her tone was conversational. She did not follow petitioner around the store. Between the first

encounter with petitioner and the second encounter when she was walking toward the checkout

area, she saw petitioner from a distance but did not say anything to her. The third time she saw

petitioner was at the checkout area and petitioner approached her. Petitioner just stared at

respondent and respondent felt intimidated. Petitioner never spoke to respondent.

¶8 Petitioner testified that she encountered respondent at the store. She heard respondent

behind her “saying things of the nature of how did your husband like losing his job, are you still

living with that rapist husband.” When she turned around, she saw respondent several aisles

behind her. Petitioner testified that she did not engage with respondent but instead turned around

and walked away. Petitioner was panicked and wanted to get away. As petitioner walked away,

3 respondent continued to say things of the same nature. Petitioner testified that she called her

husband and he advised her to call the police. She walked towards the checkout area. When she

was getting closer to the checkout area but not yet at the registers, respondent again started

making comments about petitioner living with a rapist and her husband being fired. Petitioner

testified that she walked away from her cart in an effort to get away and that respondent started

asking petitioner where she was going and why she was leaving her cart. When petitioner left her

cart, she called the police. She walked to the area where the carts were located near the self-

checkout area and leaned against them while talking to the police. Respondent was at the self-

checkout area. Petitioner did not speak with respondent. Petitioner testified that the police asked

her if the store had security and so she approached a cashier to inquire about a security guard.

The cashier directed petitioner to the security guard and petitioner contacted the security guard

between the front door and the cart corral. Petitioner testified that respondent finished checking

out and left the store and was in close proximity to petitioner and the security guard as she left.

The police asked if petitioner could see what car respondent was getting into, so she went outside

to see. As soon as petitioner exited the store, respondent turned her phone and camera on her and

stated loudly that petitioner’s husband is a rapist and was fired from the police department.

Petitioner testified that she asked the security guard to see what vehicle respondent was getting

into. Respondent proceeded to her vehicle and the police arrived shortly thereafter. Petitioner

stated that the incidents at the store made petitioner’s heart race and her palms sweaty, and she

just wanted to get out of the situation and for respondent to leave her alone. Petitioner was asked

how she felt since the incident and she stated, “[i]t keeps [her] up at night.” She was nervous to

come to court but felt she needed an order so respondent would leave her alone. Petitioner

testified that she gets nervous going to stores because she doesn’t know who is going to be there.

4 ¶9 On cross-examination, petitioner admitted that surveillance video showed her walking

toward respondent when respondent was at the self-checkout area. Petitioner stated that she did

so because she was on the phone with the police and was looking for something to lean on while

she waited for further directions. Petitioner testified that she stayed close to respondent because

she did not know where else to go and she had already left her cart. She did not want to walk

back to her cart. Petitioner was in a panicked, shocked state and was just waiting for the police to

tell her what to do. Petitioner testified that she did not feel fearful exiting the store to follow

respondent because the security guard was there and she was doing what the police told her to

do. Petitioner acknowledged that respondent did not tell petitioner that she was going to harm

her. Petitioner sought the no contact order on the basis that she did not like what respondent said

to her.

¶ 10 Surveillance video showed petitioner stop with her cart near, but not at, the checkout

area. A few seconds later, she walked away from the cart towards the front of the store.

Respondent appeared as petitioner walked away from her cart. Respondent walked to the self-

checkout area. Petitioner moved closer to the self-checkout area. The video showed that there

was a row of carts between petitioner and the backside of the self-checkout area. Petitioner

appeared to be on the phone. Petitioner then walked away and eventually approached the security

guard. She followed the security guard toward the cart corral. Respondent walked by petitioner

and the security guard and exited the store. Petitioner and the security guard were not blocking

respondent’s path but the security guard took a step away as respondent walked past. The video

showed that petitioner began walking out after respondent but stopped and turned around until

the security guard exited with her. As they walked out the door, respondent turned around and

held her phone up, apparently recording petitioner.

5 ¶ 11 The court noted that it had heard all the testimony and had an opportunity to observe the

parties as they testified. The court found that respondent’s intention “could only have been to

upset” petitioner and “[t]here was no other intention ascribed to that.” The court determined

there were at least two encounters and believed there were four. Respondent admitted in her

statement to the police that she spoke to petitioner several times. The court noted there was no

testimony that petitioner engaged respondent. The court found there were two or more acts, as

required under the Act. Therefore, the court entered the stalking no contact order. Respondent

appeals.

¶ 12 II. ANALYSIS

¶ 13 Respondent argues that the circuit court lacked jurisdiction to issue the stalking no

contact order, and it is therefore void. Respondent contends that the stalking no contact order

was not in compliance with the Act, as the order was based on a single incident, involved free

speech and petitioner was a “ ‘mutual’ player.” However, the issue of whether the order

complied with the Act is not a jurisdictional issue. The circuit court had jurisdiction to enter the

order in this matter because it has jurisdiction over all justiciable matters, except those which our

supreme court has original and exclusive jurisdiction. See McCormick v. Robertson, 2015 IL

118230, ¶¶ 19-21. Moreover, the Act specifically states that “[e]ach of the circuit courts has the

power to issue stalking no contact orders.” 740 ILCS 21/45 (West 2022). Except in limited

situations that are not present here, “the fact that the litigants or the court may have deviated

from requirements established by the legislature does not operate to divest the court of

jurisdiction.” McCormick, 2015 IL 118230, ¶ 22.

¶ 14 Respondent also argues that the stalking no contact order should not have been issued

because petitioner followed and stayed close to respondent such that she was a

6 “ ‘mutual’ player.” Respondent failed to cite to any legal authority supporting this argument as

required by Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020) (providing that argument

must “contain the contentions of the appellant and the reasons therefor, with citation of the

authorities and the pages of the record relied on” and that “[p]oints not argued are forfeited”). As

such, we conclude that respondent failed to properly develop and support her argument in this

regard and therefore, those arguments are forfeited.

¶ 15 Respondent further argues that there was only one incident, as it involved one shopping

trip at one location and that the Act does not apply to free speech. Under the Act, “ ‘[s]talking’

means engaging in a course of conduct directed at a specific person, and he or she knows or

should know that this course of conduct would cause a reasonable person to fear for his or her

safety *** or suffer emotional distress.” 740 ILCS 21/10 (West 2022). “ ‘Course of conduct’

means 2 or more acts, including but not limited to acts in which a respondent *** follows,

monitors, observes, surveils, or threatens a person, *** engages in other contact, or interferes

with or damages a person’s property or pet.” Id. § 10. “Nothing in the Act requires the passage of

any amount of time between ‘acts.’ ” Coutant v. Durell, 2021 IL App (3d) 210255, ¶ 80.

“ ‘Contact’ includes any contact with the victim, that is initiated or continued without the

victim’s consent, *** including *** approaching or confronting the victim in a public place.”

740 ILCS 21/10 (West 2022). “A victim does not need to contact her stalker to inform him or her

that the contact is unwanted.” Piester v. Escobar, 2015 IL App (3d) 140457, ¶ 12. “The focus is

on whether the stalker’s behavior would cause a reasonable person to be fearful for her safety or

to suffer emotional distress.” Id. The court shall issue a stalking no contact order if it finds the

petitioner has been a victim of stalking. 740 ILCS 21/80 (West 2022). The petitioner is required

to prove stalking by a preponderance of the evidence. Piester, 2015 IL App (3d) 140457, ¶ 12.

7 The decision to issue a stalking no contact order will only be reversed if it is against the manifest

weight of the evidence. Id. “A finding is against the manifest weight of the evidence only if the

opposite conclusion is clearly apparent or if the finding itself is unreasonable, arbitrary, or not

based on the evidence presented.” Nicholson v. Wilson, 2013 IL App (3d) 110517, ¶ 22.

¶ 16 Here, the court found that there were two or more acts to constitute a course of conduct as

required under the Act. We cannot say that this finding was against the manifest weight of the

evidence. Specifically, the course of conduct includes nonconsensual contact, including

approaching or confronting the victim in a public place. Here, the parties encountered each other

in a public place, a store. The testimony indicates that there were multiple times that respondent

confronted petitioner. Both parties testified as to the initial contact when respondent called

petitioner’s name and began making statements about her husband. Petitioner attempted to walk

away, indicating the contact was unwanted, but respondent herself testified that she continued to

confront petitioner by making statements about her husband. Petitioner testified that respondent

again confronted her with statements about her husband, which made petitioner walk away from

her cart and call the police. Respondent testified that she made statements to petitioner while

respondent was at the self-checkout area, again confronting petitioner regarding her husband.

She admitted that petitioner never spoke to her. Finally, respondent admitted that she recorded

petitioner. As the court concluded in Coutant, the Act does not require any passage of time

between acts. Thus, although the acts were in close proximity, they were distinct acts.

¶ 17 As to respondent’s allegations that her conduct was protected by free speech, we note that

this argument is largely undeveloped. See e.g., Obert v. Saville, 253 Ill. App. 3d 677, 682 (1993)

(“A reviewing court is entitled to have issues clearly defined with pertinent authority cited and

cohesive arguments presented [citation], and it is not a repository into which an appellant may

8 foist the burden of argument and research.”). Essentially, respondent asserts that free speech is

not prohibited under the Act and cursing is not harassment, but fails to articulate how her

conduct in confronting petitioner multiple times was protected free speech. See Henby v. White,

2016 IL App (5th) 140407, ¶ 26 (“When words are a component of the stalking behavior, then

the speech does not fall within constitutional protections.”). We note that respondent refers to the

Rights of Crime Victims and Witnesses Act (725 ILCS 120/1 et. seq.) but fails to cite to any

specific provision that would protect her conduct in this case or otherwise argue how it is

applicable. Based on the foregoing, respondent has failed to show that her conduct was protected

free speech.

¶ 18 The court’s findings were obviously based on its observations of the parties, their

testimony, and the court’s assessment of their demeanor and credibility. We, as the reviewing

court, defer to the trial court’s assessment of demeanor and credibility, as the court directly

observed such testimony in person, in open court. See In re Marriage of Manker, 375 Ill. App.

3d 465, 477 (2007) (“A reviewing court will defer to the trial court’s findings because the trial

court, ‘by virtue of its ability to actually observe the conduct and demeanor of witnesses, is in the

best position to assess their credibility.’ ”) (quoting In re Commitment of Sandry, 367 Ill. App. 3d

949, 980 (2006)).

¶ 19 III. CONCLUSION

¶ 20 The judgment of the circuit court of La Salle County is affirmed.

¶ 21 Affirmed.