morning honors may place the court counsel and gary bryson assistant defender with the office of the state a public defender and i represent archie howard in this matter if she was she standing in this court the first being whether mr howard was proved guilty beyond reasonable doubt and the second challenging the constitutionality of the statute under which he was convicted under well established by this court necessarily has to consider the reasonable doubt issue first resolving the case on one constitutional grounds if possible  and that being said though there is significant overlap between the issues in this case because both are dependent on how we construe the statute in question and so i'd like to start by addressing the meaning of the statute after all we have to know what it requires in order to determine whether archie was proved guilty beyond a reasonable doubt and to whether the statute is constitutional so what does the statute have it by its plain language the statute says a convicted child sex offender cannot knowingly loiter within five hundred feet of a school while children under the age of eighteen are present except for exceptions that apply to parents or guardians which aren't at issue in this case the situ goes on to define what lawyer means within and define loitering in this statute as standing sitting idle whether or not the person is in a vehicle or remaining so the states are given essentially equates to the statute with a ban on presence in a school zone that being within five hundred feet of a school but the l provision is not a complete and the statute in fact has subsections that do ban presence in specific areas those are the a subsection of the broader statute banning presence on school property  banning presence within one hundred feet of a school bus stop banning presence in a park or playground if certain other conditions are met the legislature didn't ban presence in this subsection what the legislature banned was loitering where the legislature uses different words in different contexts than different meaning ought to be attributed to those things so here the be unwavering clearly means something different than just being present clearly archie was present within five hundred feet of a school but was he of loitering the material facts in this case are not in dispute mr howard drove a friend to the area too so she could deliver one just her grandchildren he in the friend had been running errands she didn't drive the van to the grocery store she was bringing lunch he waited in this vehicle across the street and worked on paying some bills while he sat there for the few minutes she was inside now applying statutory construction principles to the loitering definition in determining whether he was loitering the parties in the trial court focused on the sitting idly provision and that was the correct focus because that is the only provision in the definition of later that is specifically applicable to me and calls to persons in vehicles the legislature included that specific language we have to presume for a reason when they said sitting idle whether or not the person is in a vehicle otherwise it would seem to be surplus so this court i bound to give meaning to each word clause or sentence the legislature uses here again with regard to a person in a vehicle sitting idly as the play couple provision so what does that mean when if someone sitting idl idle means either in actively or without a real purpose under the definitions that we look dictionary definitions commonly understood meanings and there hasn't been any dispute about that does sitting in the car waiting for someone to return while you're paying bills constitute sitting idly i position has been all along it does not he had a purpose for being there driving a friend to deliver lunch as he waited only as long as necessary or would have waited only as long as necessary for her to return had a police officer not arrived he kept himself busy while he was waiting he worked on paying his bills he was not sitting idly there are other provisions in the definition of loitering standing and remaining in the state has argued that those should apply here and not just the sitting idly if this court agrees with that we have made arguments in the briefs and i would rest lightly on those arguments and point out that he was not even under those terms standing or remaining in the school zone because again he had no intent to say his presence there was meant to be temporary he had a purpose for being there and didn't was not proved guilty beyond a reasonable doubt doesn't have a statute so you have to knowingly loiter it doesn't have an intent element grafted into it now that it's a per se statute is it isn't it not well per se what what kind of standing what constitutes remaining i mean that's th this particular defendant was within a certain footage of a school and isn't that what he's not supposed to do well he can be present i mean the legislature necessarily i think finds allowable some some presence in that zone is permissible because it's not a ban just on being present but it is a ban on loitering and so we have to look to that definition of loitering to ascertain whether or not this conduct fell within it our position is it did not and that he was not proved guilty beyond a reasonable doubt but beyond that if this court finds that the evidence was sufficient under the plain language of the situ scorches want to consider whether that statute is unconstitutionally vague as to those terms in the void or in definition and how those are knew something more than i think the question still is what more than that which is why i think this is there's a vagueness problem with this statute and if vagueness concerns of vagueness analysis typically looks at two things is there reasonable notice to an ordinary citizen of what conduct is lawful or not lawful and are there sufficient guidelines for law enforcement in how to apply the statute not arbitrarily and not in a discriminatory manner this statute doesn't provide that here this court does not need to look any further than its own decision in city of chicago versus morales for how to apply that they'd miss analysis to a statute in that case this court first recognize that there is a history of using loitering and vagrancy typeset sheets to ban or remove from public persons who might have a criminal intent before they have the opportunity to actually commit a crime but what this court went on to say is that it is well settled that such loitering vans without additional conduct so without prohibiting additional conduct are doubtlessly unconstitutional and that's exactly what we have here we have loitering banned but without anything to qualifier or define what's the kind of where does the criminal intent come in this and the state has said well there are additional elements in this statute that help to clarify and bring it within being constitutional and not pay pointing to the time when it can be enforced which is when students are present the place with a five hundred feet of a school  to whom it can be applied which are child sex offenders which also defined in the statute there were additional elements in the statute that was struck though in morale us as well gang members or someone recently thought to be a gang member had to be a part of the group that was loitering under that statute and that was then subject to a dispersal order and had to be a disobey even of a dispersal order it's not just the existence of additional elements which play into the analysis of whether and loitering statute is constitutionally unconstitutional you pay but it's the substance of those elements and again this court in morale us in this court was affirmed by the us supreme court said there needs to be an additional unlawful conduct element so that we now have so that a person can know whether what they're doing constitutes loitering so that law enforcement knows who to arrest who not to arrest this statute is so  would be very difficult if not impossible to ascertain and in any number of situations whether you were subject to being arrested charged prosecuted convicted of being a sex offender loitering within a school zone can you stop at all the state's position seems to be you can't stop can you drive slowly through the area say the speed limits twenty and you drive ten are you avoiding are you you know staying longer than necessary is that a part of the part of the analysis can you wait for a bus can you wait for the al if you're in chicago and you're five hundred feet from a school which is a lot of places in a big city can you walk but walk to slowly can you walk around the block can you drive around the block and you sat at a railroad crossing can you work in the schools on what if your utility worker can you work on power lines that are within five hundred feet of a school is not idle but you are staying in that area you are engaged in in an activity a legitimate purpose having nothing to do with the fact that there are also children present at school this statute doesn't tell enough to the individual citizen does not provide guidance to law enforcement to know whether that constitutes loitering or not any of those activities and there are an infinite number of examples again where the legislature clearly thought some presence in the schools and was permissible because they didn't and presence like they did in the a sub sections of the section in question they began loitering under morales if this court finds  legislative intent has to be considered in that analysis in the legislative intent there was good gang crimes are a problem acting to prevent or curtail gang crime was a legitimate intent but the statute was intentionally broadly drawn in morality and could not be subject to a limiting construction here the legislative intent is to protect children in school zones from sex offenders again a proper purpose can this statute be sufficiently nar construed to effectuate that purpose and not be unconstitutionally vague i think this is where this case differs from realises and i think it can be and this court need only look to other subsections of the statute to ascertain how to do that for instance the next subsection b dash to the statute bans loitering within five hundred feet of a public park playground similar areas in addition to the types of elements that are in the school zone loitering statute has an additional element that the individual may not approach contact or communicate with a minor an individual under the age of eighteen this court could read into this section a similar limiting construction  similar conduct element and the statute would not be vague because we would know then you could ascertain ok i can be present i can drive a friend to the school to deliver lunch i can work in the area i can stop in shoe i can stop at the railroad crossing fix my bike tire whatever happens to keep you in that school zone you can do it so long as you don't approach contact or communicate with a minor that would affect the purpose similarly in the loitering definition there are three actual subsections so the section we've been talking about which is simply standing sitting idly remaining but there are as a second subsection standing sitting idly or remaining for the purpose of attempting or committing a sex offense a similar purpose could be attributed to the subsection at issue here to make it constitutional on an up hold it against a vagueness challenge this court could also look to what other jurisdictions have done post morality to enact and up hold statutes banning sex offenders from loitering in school zones and we've talked about a couple of the cases one from iowa one from south dakota in the briefs where those statutes attribute either the the primary purpose for being there has to be for observing or contacting minors a similar element in this statute with affirmative already against a vagueness challenge or tying you know connecting the presence in the schools on to the presence of minors in that area and not just the fact that coincidentally or incidentally minors  present in that area as with the statute in iowa that was a library zone in that case there that the individual sitting on a park bench and the court found you have to find that it is not there just be cut in a place where there might be also victims just as an incidental matter book his presence there is because there might be potential victims to minors in that area so this court can construe the instant statute by attributing a purpose requirement and intent requirement an actor conduct requirement within it and up hold the statute against vagueness concerns here we are  so the trier effect would be free to believe or disbelieve but that wasn't what happened here the trier of fact in this case essentially said doesn't matter why you're present i hear that the evidence at trial was this a police officer stops you  circling the block he sees archie howard parked protruding into a crosswalk or into the intersection across from the school and so runs his license plate because he is there is an actual traffic tie by elation there ascertains he is a child sex offender gets out returned from the delivery and said we were out running errands he i was just dropping off lunch can i get my things out of the car from the earlier and they let her get her things so it wasn't a question of whether or not that was why he was there he was i think you know for looking at purpose an improper purpose for being there would have to look at the totality of all the circumstances surrounding that and what is the reasonable you know position on a reasonable belie what that purpose was here that's not in question it hasn't been in question why he was there and whether it was proper or improper purpose if we're looking at the statute as having that element so in this course decision  honors again say the fighting gang crime is important but it can't be done through anatomy and enforcement of an ordinance that does not meet constitutional standards of definiteness and clarity likewise protecting children i guess potential sex offenses is also a proper purpose an important purpose but the statute here does not meet constitutional standards of definiteness and clarity this court can provide a limiting construction as we've suggested by looking either to other provisions within the statute or to looking at what other states have done post morales if this court attributes those limiting construction conduct requirement to repurpose requirement actually howard was not guilty beyond reasonable doubt as we've also argued it was not proved guilty beyond a reasonable doubt under the statute simply as it is drafted for any of those reasons we would ask this court to reverse archie howard's conviction of being a child sex offender loitering within a school  and half the people of the state of illinois your honor this court should affirm court's judgment in this case for two reasons first because the statute prohibiting child sex offenders from ordering in school zones is not on constitutionally vague and second because the evidence that used to trial was more than sufficient to establish that defendant violated that statute turning first to the constitutional issue we've heard a lot of discussion of of the morality decision but i want to back up  fails to give notice to men of ordinary intelligence as to what is prohibited and also shorthand these as the arbitrary of foursomes and the notice approaches to this issue with regard to the irish re inforcement issue that is where the united states supreme court's decision in city of chicago versus morality really comes into play from nine hundred ninety nine that decision was that it rested solely on that rationale as far as the opinion of the court is  there were a lot of different opinions that weighted different directions and said different things but five judges joined only the part of that opinion that dealt with i would try and force an issue and that case like this case  about chicago ordinance that allowed the police to issue dispersal orders whenever two or more persons were kept were loitering in the presence of a suspected gang member and the statute there defined loitering as quote remaining in any one place with no apparent purpose in quote and it was this purpose language that really was problematic because the court said this whether there's an apparent purpose or not is entirely in the eye of the holder it's entirely up to the police officer who is in force in the statute they can look at two people and say one of them has a purpose one of them doesn't have a purpose one of them has a purpose that is a parent's one of them may have a purpose that purpose is not apparent and so the police officers had way too much discretion to enforce this statute to determine if in fact there was a purpose or if that purpose was as the supreme court put they had absolute discretion to make an inherently subjective determination while remaining in or around the schools up but now those are objective actions that can be observed there can be evidence of that that is something that can be gauged it gives guidance  remaining you are passing through and of course the legislature would have wanted to allow sex offenders to travel in their cars through school zones without violating the statute go from one place to another through a school in that circumstance they would be sitting but not idly because they are in motion they would be they would not be standing because again they're in motion and they would not be remaining because they're on their way out of it so moving versus not yes as opposed to purpose which if we were looking soley on purpose which apparently is what the defendant is looking for here that certainly would be a much more vague statute if we were telling the police you decide what their purpose that's up to you entirely your discretion that is the kind of arbitrary discretion problem that the supreme court and this court saw him or outlets that is not the present in this case and indeed in morale as the supreme court group that it applies to register child sex offenders in a in her concurrence one of the majority justices justice o'connor first suggested that specifying the manner and a time of enforcement might have made the statute property comma other than the offenders rise ok does that mean a an offender could rent a house in an apartment within five hundred feet and remain in there and still not be in violation of that your honor there are other provisions that of the sex of the laws that apply to sex offenders that deal with residency so i'm not sure that that there's not another provision that wouldn't prevent that but under this provision yes because the fact that the legislature did incorporate bad exception incorporate an exception for parents or guardians of children at the school shows that they were intending to create a broad exception for any sex offender who thinks he has a good purpose for being in the schools when they created those exceptions they did so specifically and carefully the exception for parents or guardians requires advance notice to the school to the principal or the superintendent and to arrange appropriate timing to be there so there's a legislature clearly did not intend to just allow anyone who doesn't think their idol to be in the school zone for as long as they like  i'd like to turn just briefly to the notice aspects of vagueness i met that provision this supreme court did not address that or they could address it but not in the tory opinion in morales this court did and again the problem that this court seemed to have was with that unique definition of purpose that we've talked about the court said that looking at that language a person of ordinary intelligence could not tell how to make their you don't control finds your purpose to be a parent so that was the notice issue that was language that men of ordinary intelligence could read but not know how to structure their conduct to avoid by then the statute yen that's not an issue here intelligence know what standing it's you know what setting as you know remaining it's these are words with ordinary dictionary definitions that are widely understood and that is all that big avoiding a vacancy problem acquires when defendant complains for instance five for that the legislature doesn't have to get down to molecular perception in defining these things he just needs to use words that men of ordinary intelligence you understand in fact defended in this case understood what the  officer lever testified at trial that when he approached the defendant the defendant sad and no i'm not supposed to be here i'm a sex offender and other defendant now disputes that batch was corroborated by the fact that at sentencing one of his own witnesses his friend testified that she had spoken with him previously about the fact that he was a sex offender and restrictions that applied to him and that she was therefore surprised that he had gone into the schools because she didn't didn't think that was something that he would do based on their discussion raised and i think we've already discussed this a little bit of course a sufficiency challenge the evidence must be reviewed in the light most favorable to the people and to the top expert not the light most favorable to the defendant so when your honor asked for instance if the trial court was free to determine that defendant did not have a legitimate purpose that the defendant was sitting idly or to disbelieve his comment that he was working on his bills of course the trial court was free to do that of representatives discussion of the statute the intent of this was to close the polls to keep sex offenders out of schools not to tell them you guys can decide if you have good reasons to be in the school zone or not it's up to you the idea was to keep our children say by removing this potential danger of course it was not to restrict the movements of sex offenders altogether which is why again if you're not remaining this does not prohibit your presence in the schools and we've never argued prohibits sitting standing in the schools as long as long as you're passing through that is not problematic under the plain language of the set and speaking of the pla language defendant can be bad to have violated the statute by sitting by standing and by remaining if you want to briefly address defendants argument that only the sitting idly language applies to him because that provision specifically mentions  car this is simply not a situation where the specific controls the general we're talking about a single sentence of a definition that include includes the read difference of positives we're not talking about separate provisions that conflict and more provisions prohibit conduct none of them allow it there is no conflict between them if the defendant was sitting or standing or remaining in the schools he has violated the statute there's evidence of all three here as to the remaining defendant's own test was that he was there for forty five minutes under the definition that he has cited every meaning in history if it means to stay in the same place he stayed in the same place for forty five minutes within the schools up as far as standing force that's a term with multiple meanings but we've all seen the no standing zone signs around town that means standing in your car you're standing in this for forty five minutes and of course that it was sick although he says he wasn't sitting idly because he says he was working on that might be subject to more serious and significant penalties in the penalty phase of trial so i think that gives prosecutors the discretion to charge this in different ways under different definitions and to produce the facts that are relevant to designed to prevent people from remaining in schools regardless of their address a couple of the questions the court asked justice covered just with your question about the residency and that that third subsection of the definition so it would seem yes if you reside within the school zone you are find to be present in your own residence there is a separate statutory provision or subsection banning residing within the school zone there is an exception within that for someone who owns their property before that statute was in acted  hundred nine two thousand somewhere around there so that's a very narrow group of people who that would fit in that exception but i think that that's what that is getting at in terms of your own residence so the state talks about being in motion would exempt you from being covered by this statute which is interesting because it would seem to me you could still remain in an area while being in motion  driving around the school driving around the park pacing back and forth on the side walk right in front of a school under the state's construction and their assertion of what this statute means that would be ok i don't i don't actually think that that is something the legislature intended to allow what i think we need to do though is decide how is a person supposed to know how is law enforcement supposed to know what things constitute remaining other than the person just being still staying in one place because that's not necessarily always for an improper purpose and again the state the state concedes this isn't just present so this isn't just a ban on being present apparently it's a ban on stationary presence under their construction it's ok if you're moving through the zone but they also say it's ok if you're in motion the statute doesn't say that and so h law enforcement is supposed to get that how an ordinary citizen is supposed to determine that from looking at the plain language of the statute is beyond my comprehension if the statute work construed to require some binding that the individual either engage in improper conduct like the parks loitering provision which notably we pointed to the legislative history behind the inaction of the at in the brief that approached contact or communicate language that is in subsection b dash two of the statute dealing with loitering in a public park or around a public park playground etc was in response to concerns about the constitutionality of a statute without it so the legislature didn't have that other states that have had the benefit of morality their statutes contain a purpose or a conduct or an intent requirement intent to commit a crime intent to commit a sex  act conduct such as approaching communicating being there for the purpose of observing minors these things are all in the other statute or in the way that courts in other jurisdictions have construed them after morale is just describing us a question about the difference between one and two and if one is as broad as that is being offered here today it swallows up there is no need for two council points to a will maybe it's for you know there to be more severe penalties more serious penalties everything in the statutes a class for everything so you don't need a separate subsection defining it with a greater purpose to put a greater penalty on it's everything's going to be subject to the same penalty at a sentencing hearing all the evidence is going to be introduced regardless of what the definition under which someone was convicted was everything in the statutes class or if the court doesn't have any other question you know one thing i do want to touch on the testimony about what actually howard knew and whether he knew he was subject to prosecution under this statute so the officer said you know when i approached him i asked what are you doing here and i'm not supposed to be here i'm a sex offender is what he said that doesn't mean that this statute is able to be construed by the average person whether their their presence is allowed or not i mean he thought he could be there doing what he was doing driving somebody they're working on something while they were you know in the school for four or five minutes a very limited amount of time a very temporary presence and this statute does contemplate some form of presence is permissible because if it wasn't the legislature would have said a sex offender may not be present within five hundred feet of a school the state in their brief offer that you know the average person can comply with that by if you're a child sex offender simply going around the school during the hours when the school is in session that is not what the statute says it contemplates that some sort of presence is permissible just can't loiter and the real question here the real nuts and bolts is what does loitering mean is the definition in the statute and nuff to give notice to the average citizen and enough to agenda number three your excuse