2016 IL App (3d) 130959 

Opinion filed January 13, 2016 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2016 

______________________________________________________________________________ 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court 

OF ILLINOIS, ) of the 10th Judicial Circuit,

 ) Peoria County, Illinois

Plaintiff-Appellee, ) 

 ) Appeal No. 3-13-0959 

 v. ) Circuit No. 12-CF-1177 

 ) 

ARCHIE C. HOWARD, ) Honorable Stephen Kouri

 ) and Honorable David Brown,

Defendant-Appellant. ) Judges, Presiding. 

____________________________________________________________________________ 

 JUSTICE WRIGHT delivered the judgment of the court, with opinion. 

 Justice Carter concurred in the judgment and opinion. 

Justice McDade dissented, with opinion. 

______________________________________________________________________________ 

OPINION

¶ 1 The State charged defendant Archie C. Howard with the felony offense of being present 

in a school zone as a child sex offender. A police officer discovered defendant, a registered sex 

offender, sitting in a vehicle parked within 15 feet of school property while children were present 

and playing on the school playground. The court found defendant guilty and sentenced 

defendant to 30 months of probation. Defendant filed a timely notice of appeal challenging the 

court’s decision finding him guilty of the charged offense and the constitutional vagueness of the 

statute. We affirm.
2

¶ 2 BACKGROUND

¶ 3 On December 4, 2012, the State filed an indictment alleging that, on or about 

November 8, 2012, defendant was “a sex offender, having been convicted of aggravated criminal 

sexual abuse in Peoria County case [No.] 03-CF-282, knowingly loitered within 500 feet of 

Irving School at 519 NE Glendale, Peoria, Illinois[,] while persons under the age of 18 years 

were present in that school building,” in violation of section 11-9.3(b) of the Criminal Code of 

1961 (Code) (720 ILCS 5/11-9.3(b) (West 2010)). 

¶ 4 The court held a bench trial on June 6, 2013. The State’s first witness, Officer Chris 

Lenover, testified he was employed by the City of Peoria police department as a patrol officer on 

November 8, 2012. Officer Lenover was driving southbound on Glendale Avenue around 11:00 

a.m. when he observed a silver Ford Taurus parked and “sitting partially in an intersection there 

at Hancock and Glendale.” Officer Lenover drove around the block, ran the vehicle’s 

registration number through the computer, and discovered the vehicle was owned by a registered 

sex offender. The officer observed the driver sitting in the parked Taurus near Irving School, a 

Peoria public school, while 80 to 100 children were outside on the school grounds because it was 

a school day. The officer estimated the children were between the ages of 6 and 10 years old. 

¶ 5 Officer Lenover activated his emergency lights, approached the vehicle, obtained the 

driver’s license from the driver (defendant), and determined defendant was currently a registered 

sex offender. After approaching defendant's vehicle, Officer Lenover informed defendant that 

parking in the crosswalk and partially blocking the intersection constituted a traffic violation. 

Officer Lenover also asked defendant why he stopped at that location. Defendant responded by

telling the officer he knew he was not supposed to be around schools or children because he was 
3

a registered sexual predator. Officer Lenover arrested defendant for being present in a school 

zone as a registered sex offender. 

¶ 6 After placing defendant in the squad car, Tumika Jordan (Jordan) came out of the school 

building and advised the officer that she asked defendant to drive her to Irving School so she 

could drop lunches off for her grandchildren. The officer asked Jordan if she knew defendant 

was a registered sex offender, and Jordan said, “No.” 

¶ 7 The court took judicial notice of defendant’s prior conviction in Peoria County case No. 

03-CF-282, a Class 2 felony conviction for aggravated criminal sexual abuse entered on 

September 19, 2003. The State rested its case.

¶ 8 The defense’s witness, Jordan, testified she met defendant a year ago and he occasionally 

provided rides for her since she did not have a car or a valid driver’s license. On November 8, 

2012, defendant picked Jordan up at her house and they went to the grocery store. Next, 

defendant drove Jordan to McDonald’s restaurant and then drove her to Irving School to deliver 

the McDonald’s lunches to her grandchildren. Jordan said she was inside the school building for 

approximately five minutes to drop off the lunches and, when she exited the building, she saw 

the police car by defendant’s car. Jordan testified defendant’s car was parked directly across the 

street from the school at a stop sign. 

¶ 9 Defendant testified he initially went to the driver’s license bureau to get his driver’s 

license on November 8, 2012. Next, he picked up Jordan at her house and drove her to the 

grocery store, McDonald’s restaurant, and Irving School where Jordan delivered the lunches for 

her grandchildren. As defendant waited for Jordan, he said he started filling out his bills while 

seated in his car. Defendant said he did not know how long Jordan expected to be in the school 
4

when he dropped her off, and he did not leave his car at any time while he waited for Jordan to 

return.

¶ 10 Defendant said he observed the police car pass his vehicle and continue down the street. 

“[A] minute or so later,” defendant said the squad car turned around and “put his lights on me.” 

According to defendant, the officer asked him approximately four times what he was doing there 

and defendant testified, “I started telling him I was delivering the woman who was with me who 

was delivering food to the school to the grandkids.” The officer explained to defendant that he 

was a sex offender and was supposed to be 500 feet away from the school. Defendant said he 

explained to the officer that he drove Jordan to the school because she could not walk well. 

Defendant said he stopped at the intersection close to the school to make it easier for Jordan. 

Defendant said the officer then placed him under arrest. The defense rested its case.

¶ 11 The court took the matter under advisement. On June 24, 2013, the court issued a written 

order. In this order, the court found: 

“1. It is alleged that the defendant committed the offense of being a child sex 

offender in a school zone. Pursuant to 720 ILCS 5/11-9.3(b), ‘It is unlawful for a 

child sex offender to knowingly loiter within 500 feet of a school building or real 

property comprising any school while persons under the age of 18 are present in the 

building or on the grounds, unless the offender is a parent or guardian of a student 

attending the school . . .’ (emphasis added.) [1]

 

2. The statute defines ‘loitering’ as ‘standing, sitting idly, whether or not the person 

is in a vehicle, or remaining in or around school or public park property.’ 720 ILCS 

5/11-9.3(d)(11)(i). 

 1

This is a quote from the trial court’s order, which included the “(emphasis added)” 

language as written in the original. 
5

3. The defendant, having been previously convicted of aggravated criminal sexual 

abuse, is a child sex offender as set forth in the subject statute. 

4. The defendant, having been in a vehicle within 500 feet of Irving School, is in 

direct violation of the statute. The reason given for his presence at the school has no 

merit in this case.

5. The defendant is not a parent or guardian of a student attending the school and 

therefore he does not meet the exception of the statute.” 

The court found defendant guilty of the offense of being present in a school zone as a sex 

offender.

¶ 12 On July 17, 2013, defendant filed a “Motion for Judgment (N.O.V.)” claiming the court 

erred in finding that defendant knowingly loitered within 500 feet of a school building. 

Defendant contended that the facts did not prove he was “loitering” near the school property as 

required by statute, therefore, defendant asked the court to reverse its guilty finding.2

 After 

hearing argument, the court denied the defense motion for judgment n.o.v. 

¶ 13 On November 21, 2013, defendant received a sentence of 30 months’ probation, with 

“intensive probation” for the first 12 months, and the court ordered him to pay court costs and 

fees. The court also ordered defendant to cooperate with any type of treatment, counseling, or 

education that the probation department determined was appropriate. Defendant does not 

challenge any component of the sentence he received, but filed a timely notice of appeal

challenging his conviction. 

¶ 14 ANALYSIS

¶ 15 On appeal, defendant contends the State’s evidence was insufficient to prove him guilty 

beyond a reasonable doubt of being present in a school zone as a child sex offender because his 

 2

Defendant did not challenge the constitutionality of the statute before the trial court. 
6

conduct did not constitute “sitting idly” as required to meet the definition of loitering for 

purposes of the statute. Defendant focuses on a narrow evidentiary insufficiency regarding 

whether the State proved he was idle at the time of his arrest. Alternatively, defendant submits

the statute at issue is unconstitutionally vague as it applies to his conduct. 

¶ 16 I. Sufficiency of the Evidence 

¶ 17 Generally, when a defendant challenges the sufficiency of the evidence regarding an 

element of the charged offense, a reviewing court must view the evidence in a light most 

favorable to the prosecution and determine whether any rational trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt. People v. Amigon, 239 Ill. 2d 71, 

78 (2010); People v. Pollock, 202 Ill. 2d 189, 217 (2002). On review, this court will not set aside 

a criminal conviction unless the evidence is so improbable or unsatisfactory that there remains a 

reasonable doubt of the defendant's guilt. Amigon, 239 Ill. 2d at 78; People v. Collins, 106 Ill. 2d 

237, 261 (1985). 

¶ 18 As defendant asserts, the material facts in this case are not in dispute. Thus, when the 

facts are undisputed, defendant correctly points out that the determination of the sufficiency of 

the evidence becomes a question of law subject to our de novo review. See People v. Smith, 191 

Ill. 2d 408, 411 (2000). Defendant further submits that this case requires statutory interpretation, 

applying the undisputed facts to the language of the statute to determine whether the essential 

elements have been proven, which is a question of law that we review de novo. Amigon, 239 Ill. 

2d at 84. 

¶ 19 Here, defendant contends the trial court erred by finding him guilty of the offense of 

being present in a school zone as a child sex offender because the State’s evidence did not 
7

demonstrate defendant was “loitering” at that location as defined by the statute. We begin with 

the provisions of the statute, which in relevant part provides: 

“It is unlawful for a child sex offender to knowingly loiter within 500 feet of a school 

building or real property comprising any school while persons under the age of 18 are 

present in the building or on the grounds, unless the offender is a parent or guardian 

of a student attending the school and the parent or guardian is: (i) attending a 

conference at the school with school personnel to discuss the progress of his or her 

child academically or socially, (ii) participating in child review conferences in which 

evaluation and placement decisions may be made with respect to his or her child 

regarding special education services, or (iii) attending conferences to discuss other 

student issues concerning his or her child such as retention and promotion and 

notifies the principal of the school of his or her presence at the school or has 

permission to be present from the superintendent or the school board or in the case of 

a private school from the principal.” (Emphases added.) 720 ILCS 5/11-9.3(b) (West 

2010). 

In the case at bar, the State charged defendant with a violation of section 11-9.3(b), which 

provides that a non-parent or non-guardian who is a sex offender may not loiter within 500 feet 

of school property for any reason. Id. 

¶ 20 Defendant asks this court to apply the definition of “idle” as defined in the MerriamWebster Dictionary. Merriam-Webster Online Dictionary (2015); http://www.merriamwebster.com/dictionary/idle. However, since the statute includes a definition for loitering within 

section 11-9.3(d)(11) of the Code (720 ILCS 5/11-9.3(d)(11) (West 2010)), we must rely on the 

legislative definition to construe the clear and unambiguous language of the statute itself. See 
8

People v. Belk, 203 Ill. 2d 187, 192 (2003). Section 11-9.3(d)(11) provides the definition for 

loitering as used in this section. 720 ILCS 5/11-9.3(d)(11)(i) (West 2010). Sections 11-

9.3(d)(11)(i) and (ii) both have common language prohibiting “[s]tanding, sitting idly, whether 

or not the person is in a vehicle, or remaining in or around school or public park property.” 720 

ILCS 5/11-9.3(d)(11)(i), (ii) (West 2010). However, section 11-9.3(d)(11)(ii) prohibits 

“[s]tanding, sitting idly, whether or not the person is in a vehicle, or remaining in or around 

school or public park property, for the purpose of committing or attempting to commit a sex 

offense.” 720 ILCS 5/11-9.3(d)(11)(ii) (West 2010). The charging instrument in this case 

alleged defendant was “loitering” but did not allege defendant did so with a specific unlawful 

purpose to commit or attempt to commit a sex offense. Thus, as charged, the State took on the 

task of proving the offense based on the definition of loitering found in the language of section

11-9.3(d)(11)(i). 720 ILCS 5/11-9.3(d)(11)(i) (West 2010). We agree the State did not prove 

loitering as defined by section 11-9.3(d)(11)(ii), which requires loitering for a specific purpose, 

or as defined by section 11-9.3(d)(11)(iii), which involves entry into a building. 720 ILCS 5/11-

9.3(d)(11)(ii), (iii) (West 2010). 

¶ 21 Defendant claimed he had his own legitimate purpose for remaining in his car within 15 

feet of the school property. However, the State alleged defendant committed an act described as 

loitering and proved beyond a reasonable doubt defendant’s conduct fell within the definition of 

loitering contained in section 11-9.3(d)(11)(i) even if his conduct did not meet the requirements 

to constitute loitering under all three definitions found in sections 11-9.3(d)(11)(i), (ii) and (iii). 

720 ILCS 5/11-9.3(d)(11)(i), (ii), (iii) (West 2010). 

¶ 22 Whether the statute giving rise to the charge was unconstitutionally vague is addressed 

below. However, at this juncture we focus on whether the State’s evidence satisfied each 
9

element of the offense as charged. It is important to note that, although defendant claims he was 

not sitting idly, he was charged in the indictment with loitering and loitering also includes 

“remaining” in the restricted zone. 

¶ 23 In this case, it is undisputed that there were students under age 18 present on the school 

property; and defendant was within 500 feet of the school zone. Further, it is not disputed that 

defendant was neither a parent nor guardian of a student attending Irving School, and that 

defendant did not have prior permission to remain near school property after dropping off his 

friend. Therefore, the only contested element of the offense is whether defendant’s conduct 

constituted loitering by “remaining” in the restricted area. We conclude the evidence presented 

to the court was sufficient to prove defendant loitered by remaining in the restricted zone for 

several minutes and the State’s evidence proved defendant guilty of a violation of section 11-

9.3(b), based on the definition of loitering in section 11-9.3(d)(11)(i), beyond a reasonable doubt, 

as charged. 

¶ 24 Next, we consider whether the statute is too vague such that defendant’s conviction 

should be set aside on constitutional grounds. 

¶ 25 II. Constitutionality of the Statute

¶ 26 In this case, the State charged defendant, a sex offender, with loitering near school 

property in violation of section 11-9.3(b). 720 ILCS 5/11-9.3(b) (West 2010). The statute 

provides: “It is unlawful for a child sex offender to knowingly loiter within 500 feet of a school 

building or real property comprising any school while persons under the age of 18 are present in 

the building or on the grounds, unless the offender is a parent or guardian of a student attending 

the school and the parent or guardian *** or has permission to be present.” (Emphases added.) 

Id. 
10

¶ 27 Defendant argues that subsequent sections of the statute, namely sections 11-9.3(d)(11)(i) 

and (ii) define “loitering” near school property in two alternative ways that render the statute 

unconstitutionally vague as it applies to this defendant. 720 ILCS 5/11-9.3(d)(11)(i), (ii) (West 

2010). We begin by considering the language of the statute. 

¶ 28 Section 11-9.3(d)(11) of the statute is set forth below: 

 “ ‘Loiter’ means:

(i) Standing, sitting idly, whether or not the person is in a vehicle, or 

remaining in or around school or public park property. 

(ii) Standing, sitting idly, whether or not the person is in a vehicle, or 

remaining in or around school or public park property, for the purpose of committing 

or attempting to commit a sex offense.

(iii) Entering or remaining in a building in or around school property, other 

than the offender's residence.” 720 ILCS 5/11-9.3(d)(11) (West 2010).

¶ 29 In support of the argument that this statute is unconstitutionally vague, defendant points 

out that section 11-9.3(d)(11)(i) defines loitering as “[s]tanding, sitting idly, whether or not the 

person is in a vehicle, or remaining in or around school *** property.” 720 ILCS 5/11-

9.3(d)(11)(i) (West 2010). Alternatively, defendant points out that section 11-9.3(d)(11)(ii) is 

conflicting with the previous provision because section 11-9.3(d)(11)(ii) indicates loitering 

occurs when a person, “for the purpose of committing or attempting to commit a sex offense,”

stands, sits idly, or remains near school property. 720 ILCS 5/11-9.3(d)(11)(ii) (West 2010). 

¶ 30 Generally, statutes are presumed to be constitutional and defendant has the burden of 

rebutting that presumption and clearly establishing a constitutional violation. People v. Jones, 

223 Ill. 2d 569, 595-96 (2006); People v. Einoder, 209 Ill. 2d 443, 450 (2004). If reasonably 
11

possible, a court has a duty to construe a statute so as to uphold its constitutionality. Jones, 223 

Ill. 2d at 595-96; Einoder, 209 Ill. 2d at 450. Whether a statute is constitutional is a question of 

law that we review de novo. Einoder, 209 Ill. 2d at 450. 

¶ 31 In this case, defendant contends the United States Supreme Court case of City of Chicago 

v. Morales is controlling. City of Chicago v. Morales, 527 U.S. 41 (1999). The Chicago 

ordinance at issue in Morales prohibited a gang member from loitering in any public place with 

one or more person, and included a definition for “loiter” as “to remain in any one place with no 

apparent purpose.” (Internal quotation marks omitted.) Id. at 47. In contrast, the statute in this 

case prohibits loitering within a very specific restricted zone within 500 feet of school property 

and provides three examples of conduct that constitutes loitering as described by section 11-

9.3(d)(11) of the Code. 720 ILCS 5/11-9.3(d)(11) (West 2010). We are mindful that the 

ordinance in Morales was far more general and conclude the decision in Morales, while helpful,

is not controlling. 

¶ 32 A statute can be challenged as unconstitutionally vague in two ways: (1) on the statute’s 

face, or (2) as the statute is applied to defendant’s actions. Einoder, 209 Ill. 2d at 448 (citing 

People v. Greco, 204 Ill. 2d 400, 416 (2003)). Here, defendant contends section 11-9.3(b) of the 

Code and the definition of loitering is unconstitutionally vague as it applies to his actions. 

Therefore, we look at defendant’s actions “ ‘in light of the particular facts of the case.’ ” Id. at 

451 (quoting Greco, 204 Ill. 2d at 416). “ ‘When the statute is examined in the light of the facts 

of the case and the statute clearly applies to the [defendant’s] conduct, then a challenge to the 

statute’s constitutionality based upon vagueness will be unsuccessful.’ ” Id. at 451-52 (quoting 

People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 291-92 (2003)). 
12

¶ 33 To satisfy the vagueness doctrine, a statute must meet two criteria: first, the terms of the 

statute must provide a person of common intelligence the reasonable opportunity to distinguish 

between lawful and unlawful conduct so that he or she may act accordingly; and, second, the 

statute must define the offense adequately so as to prevent arbitrary or discriminatory 

enforcement of the statute. Id. at 450-51; Greco, 204 Ill. 2d at 415-16; People v. Maness, 191 

Ill. 2d 478, 483-84 (2000). A statute is not unconstitutionally vague simply because one can 

conjure up a hypothetical dispute over the meaning of some of the act’s terms. Greco, 204 Ill. 2d 

at 416. 

¶ 34 In order to succeed on a vagueness challenge as it applies to a defendant, a defendant 

must establish that the statute is vague as it applies to the conduct for which defendant is being 

prosecuted. Einoder, 209 Ill. 2d at 451. A statute violates due process as it applies to that person 

when it forbids the doing of an act in terms so vague that a person of normal intelligence must 

guess at its meaning and differ as to its application. People v. Stork, 305 Ill. App. 3d 714, 723 

(1999).3

 

¶ 35 Regarding whether the language of section 11-9.3(b) was too vague, we begin by 

focusing on the language of the statute. The statute reads as follows: 

“It is unlawful for a child sex offender to knowingly loiter within 500 feet of a school 

building or real property comprising any school while persons under the age of 18 are 

present in the building or on the grounds, unless the offender is a parent or guardian 

of a student attending the school and the parent or guardian is: (i) attending a 

conference at the school with school personnel to discuss the progress of his or her 

 3

The Stork case appears to be the only case in Illinois that has addressed the 

constitutionality of section 11-9.3 of the Code to determine whether the statute involving a sex 

offender being present within 500 feet of school property is unconstitutionally vague on its face 

or as applied to that defendant. Stork, 305 Ill. App. 3d at 723.
13

child academically or socially, (ii) participating in child review conferences in which 

evaluation and placement decisions may be made with respect to his or her child 

regarding special education services, or (iii) attending conferences to discuss other 

student issues concerning his or her child such as retention and promotion and 

notifies the principal of the school of his or her presence at the school or has 

permission to be present from the superintendent or the school board or in the case of 

a private school from the principal.” (Emphases added.) 720 ILCS 5/11-9.3(b) (West 

2010). 

¶ 36 After careful review of the statutory language, we conclude the statutory scheme clearly 

delineates one very small restricted area, a 500-foot zone surrounding school property. This 

geographical restriction was not present in the ordinance considered in Morales (supra ¶ 31). 

Section 11-9.3(b) also prohibits certain conduct during a specific time period, that is, when 

children under 18 are present. Finally, we observe the statute at issue allows some sex offenders 

to be present in the restricted school zone and during the restricted time period with the 

permission of certain persons in authority. The statute carefully recognizes two categories of sex 

offenders: (1) a sex offender that has received permission to be present in the restricted school 

zone and is also a parent or guardian of a child attending a particular school; and (2) a sex 

offender who is not a parent or guardian of any child enrolled in the school and has no parental 

duties giving rise to a need for remaining in the restricted school zone for their enrolled 

student/child. 

¶ 37 The Court in Morales was troubled by language in the Chicago ordinance focusing on a 

gang member’s lack of “apparent” purpose to remain at any public location. Morales, 527 U.S. 

41. However, the statute at issue in this appeal applies to a non-parent who remains in the 
14

restricted school zone, even with a lawful purpose in mind. Therefore, we conclude there are 

other very narrow conditions here that were not present in Morales. 

¶ 38 Unlike the ordinance at issue in Morales, sex offenders, who are not parents of a child in 

the school, are subject to the Illinois state statute at issue and are clearly put on notice that they 

may not hesitate when finding themselves within the 500-foot zone near a school. If a sex 

offender intends to stand, sit idly, or remain within the 500-foot zone, any one of these acts, 

regardless of a lawful purpose, are forbidden near schools. 

¶ 39 Our conclusions are consistent with the rationale expressed by the Stork court, which 

held: 

“Section 11-9.3 does not attempt to entirely prohibit child sex offenders from school 

zones, but it confines its prohibitions to those child sex offenders who are not parents 

or guardians of children at the school and those without permission to be present. 

The statute restricts child sex offenders from a readily identifiable area, such as the 

school building or a public way within 500 feet of school property. Furthermore, the 

statute is limited to those times when persons under the age of 18 are present within 

the school zone. We believe these items provide objective criteria in the statutory 

proscription that lack the potential for arbitrary and discriminatory enforcement.” 

Stork, 305 Ill. App. 3d at 723-24. 

¶ 40 We recognize that the definitions of loitering set out in section 11-9.3(b)(i) and (ii) are 

arguably inconsistent with respect to the prohibited conduct of a sex offender who is the parent

of a child attending a particular school and who has obtained permission to be present at the 

school. In that situation, a sex offender could arguably be guilty of violating section 11-9.3(b) if 

he or she loitered with the requisite criminal purpose to commit or attempt to commit a sexual 
15

offense in spite of permission. However, here, defendant was not a parent of any child present at 

Irving School, and did not fall within the category of sex offender parents that may claim 

confusion based on the vagueness of the statute as it applied to them. The statute makes it very 

clear that a sex offender who is not a parent may not remain in the restricted school zone for any 

purpose, lawful or unlawful, while children under age 18 are present. 

¶ 41 Defendant was well aware of the restrictions on his ability to remain within 500 feet of 

the school while children were present. In fact, Officer Lenover testified that defendant told the 

officer he was a sex offender and knew he should not be present where he was parked. 

Accordingly, we conclude the statute is not unconstitutionally vague as it applies to defendant 

and his conduct. 

¶ 42 CONCLUSION

¶ 43 For the foregoing reasons, we affirm the defendant’s conviction for being present in a 

school zone as a sex offender. 

¶ 44 Affirmed. 

¶ 45 JUSTICE McDADE, dissenting. 

¶ 46 The majority has affirmed the decision of the circuit court of Peoria County finding 

defendant guilty beyond a reasonable doubt of being a sex offender loitering in a school zone. I 

agree with the majority’s finding that under two of the statute’s definitions for loitering Howard 

was clearly not guilty. He was not "[s]tanding, sitting idly ***, or remaining ***, for the purpose 

of committing or attempting to commit a sex offense" or "[e]ntering or remaining in a building in 

or around school property." 720 ILCS 5/11-9.3(d)(11)(ii), (iii) (West 2010). However, our 

opinions diverge with respect to the remaining definition and the necessity of a mens rea for 

criminal statutes such as this. Thus I respectfully disagree with the majority’s finding because 
16

defendant was not loitering as defined by the statute and thus was not guilty beyond a reasonable 

doubt. 

¶ 47 A reviewing court is duty-bound to “construe a statute in a manner that upholds its 

validity and constitutionality if it reasonably can be done.” People v. Graves, 207 Ill. 2d 478, 482 

(2003). The remaining definition that the majority finds justifies defendant's conviction states 

that loitering is "[s]tanding, sitting idly, *** or remaining." 720 ILCS 5/11-9.3(d)(11)(i) (West 

2010). The definition does not further define idle or provide a required mens rea. see City of 

Chicago v. Morales, 527 U.S. 41, 55 (1999); see also Colautti v. Franklin, 439 U.S. 379, 395 

(1979) (“This Court has long recognized that the constitutionality of a vague statutory standard is 

closely related to whether that standard incorporates a requirement of mens rea.”). 

¶ 48 To uphold the validity of this section of the statute, we would either need to (1) read into 

it the mens rea provided in the otherwise identical definition of section 5/11-9.3(d)(11)(ii), which 

states that the mens rea is loitering for the purpose of committing or attempting to commit a sex 

offense, or (2) to an outside source to define idle and garner a mens rea in that respect. If we 

were to do the former, definitions in subsections (i) and (ii) would be identical, rendering one of 

them superfluous. If we were to choose the latter, we would find the plain and ordinary meaning 

of "idle" is to sit inactively or with no real purpose. Merriam-Webster Dictionary, 

http://www.merriam-webster.com/dictionary/idle (last visited Oct. 5, 2015); see also People v. 

Haywood, 118 Ill. 2d 263, 277 (1987). Thus under either line of reasoning, Howard was not 

guilty of loitering as the facts are undisputed with regard to his purpose for being parked outside 

of the school at the time the officer happened upon him. He was not sitting inactive but was 

paying bills while waiting for his friend to return from the school where she was dropping lunch 

off to her grandchildren. 
17

¶ 49 Simply put, the State failed to prove the element of loitering and, ultimately, that Howard 

was guilty beyond a reasonable doubt.