mr botching it was convicted of identity theft after a trial in du page county before trial defense counsel made a motion to dismiss based on improper venue because all the aspects of the case occurred in lake county illinois this is an appeal from the denial of that motion now article one section eight of the illinois constitution grants every defendant a right to have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed now section t three of the place of trial statute extends venue for prosecution of identity theft to the county of the victim's  residence in addition to the county where the crime allegedly occurred now the problem here is that no aspect or element of identity theft when charged under subsection a one occurs where the victim resides section a one of the identity theft provisions states that identity theft occurs when the person knowingly uses any personal identifying information or personal identification document of another obtain credit money goods services or other property in this case is a great example where dummy use personal identifying information and a person of occasion document a credit card at a gas station in lake county to obtain goods a carton of cigarettes and so the defense in its entirety began occurred and finished entirely within lake county illinois therefore for venuti proper it had to be in lake county illinois and this statute that extends a venue to the county where the victim resides is conflicted with the concert because to show requirement to have trial in the county where the a crime allegedly occurred  the nd district appellate court found that this statute was constitutional and they based their argument based on the victim's possessory interest in their personal identifying information assuming that it was somehow inherently always tied to the victim's residence but this is farfetched and it fails to connect the criminal conduct to the situs it feels to connect any element of the offense to the county where the victim resides which is what is required under the constitution now the court recognize that the place of trial statute states that the legislature can provide exceptions as provided by law but the place a trial statute is really a longer list not of exceptions but of clarifications of clarification's of where crimes occur for the sake of providing venue the legislature cannot by mere legislative act conflict with the constitution this is a well established principle of separation of powers so they cannot just by legislative act provide exceptions to a constitutional right they can only provide clarifications of where a crime occurs and the appellant is putting forth that in this instance  well if an element or aspect of the offense occurred there and yes so to the sensitive child was taken from their rightful home that's probably an aspect of the offense and so it probably would be a proper venue i'm not an expert in the child abduction laws the place a trust issue is and there's any number of provisions in there that do not require any physical presence but at least do connect the criminal conduct to the situs so that likely is a proper venue and the appellate court in their decision essentially misconstrued the arguments requiring physical presence which is not required any number of examples including money laundering show that venue is proper without physical presence that were ever there money is laundered through the defendant does not need to be present for that to happen but then you would be proper where ever that those funds are used because of answer this question if you specifically narrowed your argument to the section five slash one dish six say that that is unconstitutional correct place of trial or not the full statute just subsection t three o the trial or appellate courts when the trial court was ruling on this motion their ruling was based only on the subsection t three the place of trial statute so we were not trying to appeal and struck down two statute the same time we were only requesting the statute mind you we do not fully briefed this issue because it wasn't used to a fine proper venue for mr bachna here we do believe that it is probably unconstitutional and he said this quote we like to call it political into question in its opinion i think that would be a proper remedy here which could then be addressed in a later appeal or preferred by amendment by the legislature must primarily because of the language of the constitution itself that it has to be where the offense is alleged to have been committed there are various cases we decided to clarke is one mcclellan is another which both basically say that an essential aspect of the offense has to occur there and there are any number of federal cases which have held similar arguments of the federal right that an essential element of the offense has to occur in whatever jurisdiction  it's dispositive of the argument being put before the court but it's not it's entirely consistent with the argument of putting before the court today putting aside all those changes in due process that occurred in terms of the role of venue the court was essentially just holding when you commit murder on a train and the train passes through five counties venue is proper in all five of those counties it connects the criminal conduct to the venue i think is a great job by the legislature of connecting criminal conduct to the venue it's as simple as murder occurs and saying in my county  is proper and state in my county it connects the criminal conduct to the situs here there is no connection between the county the victim's residence and identity theft when charged under section a one so there is no connection between the criminal conduct and the  so clear and facial challenge just right this is brought is official challenge because there are no set of circumstances under which section t three of the place of trial statute provides proper venue for prosecution under section eighty one dollars of the identity card resigns yes your honor as the u s supreme court explained in the city of l a v patel the conduct in order for a set of circumstances to warren upholding a statute the set of circumstances has to actually invoked statute the conduct being authorized or prohibited by the statute there will always be a circumstance under which the statute is coincidentally proper in this case there was a great example where this court struck down the change the twelve person jury to six person a civil trials if both parties agreed to a six person jury would still be proper but it wouldn't involve the statute which only is invoked when one party is not consenting to a six person jury similarly here and the kind of thing which the state puts forth in their hypothetical then he would be proper under section t one because all elements of the offense are occurring in that county the reasoning to uphold section t three has to be because it is the victim's residence that has to be the reasoning in order for that statute to actually be invoked which is not possible here because there is no aspect connecting the victim's residence to the commission of the offen now there are other forms of identity theft including a three and a four in which obtaining the person identifying information or person identification document is an element of the offense and in those instances it is possible to extend venue potentially to the victim's residence for example in this public policy considerations that the state in the appellate court are worried about which regard similar situations where like an elderly person is tricked into giving their information over the phone or something like that wherever that phone is could be a proper venue because the criminal conduct is connected to that site this but again that is not necessarily the residence of the person their phone could be anywhere if you e mails are hacked and that is the grounds for the identity theft wherever your laptop is is not necessary in your home but that location could be a opera venue it connects the criminal conduct to the site this is not necessarily or inherently in the victim's residence just  elements of the offense so if they're being charged under a three and they're obtaining that person identifying information your computers here this county would be a proper venue for that prosecution if it happens while you're here there's always ways of determining this through actually addresses and technological ways which if you're going to prosecute them you would have to have that information so you can always determine where or when it was occurred taken from and that location could be a proper venue guess it is not necessarily your residence in any way th yes your honor and this is the biggest issue being put for the court today are we going to base this based on these philosophical concepts of the herren nature of identity or we're going to talk about things that actually exist we're talking a physical credit cards we're talking about some of the social security information we're talking about actual things that actually exist the use of telephones or computers things that exist in physical places that are being used for criminal conduct those things provide proper venue this inherent concept of our identity is not inherently tied to our residence and it's not inherently tied to any of the criminal conduct so no i cannot provide proper ve i'm not an expert in identity theft and that waiter but i don't the person has to even exist for that to happen they could have anything create an identity things like that happen so it's not inherited to the person or to their residence it is however tied to actual information and documents it is used through actual devices and things that exist in the physical world those things provide proper venue those of the criminal conduct which the constitution requires to be connected to the event that that person so there would be no victims residence even type two which again supports the argument of the victim's residence is irrelevant  the personal identifying information of another person it's in that the taking use or misuse them if this misappropriation isn't an unlawful act unto itself it's an unlawful act upon something upon the victim's identity and therefore upon the victim and so defendant has said here that there is no aspect of this crime that occurs in the the county of the victim's residence but by definition there are always going to be at least two aspects to the location of this crimes commission the place where the defendant himself acts and the place from which the personal identifying information of another has been misappropriated and so this crime is fundamentally clarification about where that latter location is of the of the personal identifying information of another and it makes intuitive sense the person's identity resides with the person that it belongs to and all the legislature has done here then under section one hundred and sixty three dollars is make explicit what we already could have discerned from the identity theft statute itself and the nature of identity theft as a crime and that the essence of this crime i both where the defendant acts and where the victim and by extension where the victim's identity resided and when those counties differ is a classic case of a crime that is aptly considered committed in both counties and where trial may be had in either county and i would remind this court that its precedent in the gilliam case doesn't talk about the elements of the offense as determined as ever talks about the essence of the crime and the elements are certainly instructive and the it establishes the contours of what the offense is but we look to more than that when determining where the crime occurs for purposes of venue and i'd also remind this court that bill noise right with the vast majority of states here that approach identity theft in this way in allowing for the prosecution of this crime in the county of the victim's residence and an alternative approach as proposed by defendant would be way out of step with the vast majority of states and it would lead to some pretty troubling consequences including leaving each state's attorney powerless to prosecute identity  thefts against committed against his or her own residence when committed by an out of county or out of state actor and in fact it would declare open season on all illinois ins who would be because there be no available venue to prosecute out of state actors who are committing identity theft on individuals residing in illinois defendant's case here provide the money making charges on victims credit card he crossed the happy cross the border over into lake county during his spending spree and he used the victim's credit card at a gas station to buy six cigarettes and to be sure that the use of the credit card is the act of identity theft for which defendant was charged but as much as defendant would like to narrow the scope of this case and trivialize the act of identity theft into just a case of physical cards way the reality is that the act of identity theft misappropriated the victim's identity away from the place where it lawfully resided and that was with the victim and du page county and as a practical matter the effect of that criminal conduct is also struck down the victim du page county resident wakes up and to page county having incurred credit card debt and financial harm as a direct result of the defendant's conduct and so it's not an apt to  this criminal conduct this identity theft conduct as having been committed in both counties and allowing for trial to be proper in either county now the state certainly maintains that as a threshold traditional common law rule that crimes are prosecute strictly exclusively where they're committed but what makes this case easy for this court here today is that even under defendant's reading of article one section eight the  identity theft is the nature of the offense as defined by the legislature and as clarified by multiple additional statutory provisions reflecting the legislature's intent here and its clarifications makes clear that this crime is committed both where the at the place where the accused physically acts and the place where the identity or the victim's identity resides and must be left undisturbed and the appellate court below correctly found that either of these arguments either the argument or that latter argument about identity theft commission in both of these locations as a basis for upholding and thirty six is part of this the overall subdivision of the code on identity theft and the legislature really was was treating in how it reflects the legislative intent about what the essence of this crime is and that it's that and that is that it's a crime committed that's always committed when it's misappropriating someone's personal info identifying information in that victim's county or residence i would add your honor that you've you've correctly identified that defendant did fail to make a challenge against  by what he argued in the trial court but as official constitutional challenge he was free to make that challenge in the appellate court which he failed to do and before this court reads the way defendant interprets it which we dispute there are numerous constitutionally ballot applications of this venue provision as we've identified the case of an entirely in truck county offense is an example of a constitutionally valid application and defendant argues that this is an example where section one hundred and sixty three dollars is not being applied but theft committed upon an individual residing in illinois and so that would be again another example of a constitutionally about application and i would also i would add that use of somebodies personal identifying information which is which is deviating pretty substantially from what official challenge is we're talking pretty much out the facts as applied to someone same victim impersonating their financial institution or someone they know and use that information in order to gather more information from them or to potentially ultimately take their money so that's an example where we would see the use of the information against the victim him or herself in a direct communication and in that by e mail or text or what have you and in that instance it would not be an absolute to understand that offense as having been committed both in the county where the offender is sitting behind a screen his or her computer screen typed an e mail and also in the county where the victim resides or where the where the individuals receiving that e mail and being victimized providing additional personal identifying information or possibly even giving direct access to his or it's your her as an initial matter with my opposing counsel misstated a material fact of the case namely that the defendant mr bhatia nick was not accused of this effect or stealing the credit card in this case there was no evidence presented that he broke into mr  his vehicle or that he was responsible for stealing it all allegations were that another person did that and later provided the card to the defendant watching as another point opposing counsel is worried about the the public policy ramifications here of exposing illinois residents to identity theft and suggesting that if this provision were to be struck down it would expose illinois residents to identity theft without any recourse for prosecution but this is completely untrue and contrary to the arguments being presented opposing counsel put forth a situation about fishing which is someone's opening an e mail essentially claim to be somebody else it leads to them having their information stolen we completely agree that the place where that e mail is read would also be a proper venue but that would also connect the criminal conduct to the situs but the place where the e mail is read is not inherently the victim's residence it's the place the e mail is read on someone's computer which is could not be in your house it could be anywhere and that is easily discernable information especially if you want to bring a prosecution against someone who can tell exactly where and what that where and when that email was read so that again is not the victim's residence it's a physical thing that actually exists it is not tied to these philosophical identity so this is a term that again we don't need to resort to the philosophical concerns of we have elements of the offense we know exactly what constitutes the crime what is the defendant's conduct which is being put forth to the court and so where that conduct is and tied to is the essence of the offense that's what we're pretty forth that it's not these lofty concerns about the nature of identity it's about what the defendant actually did in is accused of doing and where those things happened  a last point this is indeed a facial challenge rather than as i challenge because this is a challenge to the statute itself this is not to the judges application of the statute there is no question here that the trial judg relied on section t three to find proper venue and that section twenty three provides venue in this situation the question is entirely is this statute constitutional is it consistent with the constitutional right which we put forth that it is not and that it would be completely unreasonable to require and as applied challenge here if we were to extrapolate the statute a little bit to say that venue is proper in the county the victim's residence for all crimes all crimes are going to have some kind of effect or harm or essence tied to the public private practice since then but this is a case that i believed in i wanted to but for sure the court