FIFTH DIVISION

		                                      November 1, 2002

No. 1-00-2153

THE PEOPLE OF THE STATE OF ILLINOIS,  

	Plaintiff-Appellee,  

	v.

EMIL J. STILES,        

	Defendant-Appellant.   

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Appeal from the

Circuit Court of

Cook County

Honorable

John D. Tourtelot, 

Judge Presiding.

	JUSTICE QUINN delivered the opinion of the court:

	Following a bench trial, defendant Emil J. Stiles (Stiles) was found guilty of violating an order of protection (720 ILCS 5/12-30

(West 2000)) issued to Jane Meredith Leggett (Leggett) and

sentenced to 18 months' supervision, 10 days in the Sheriff's Work

Alternative Program (SWAP) and fined $150.  On appeal, defendant

contends that he was not proved guilty beyond a reasonable doubt. 

For the following reasons, we affirm.

					  THE FACTS

	At trial, Leggett testified that she and Stiles began dating

in December 1998 and lived together until December 1999.  On

January 6, 2000, Leggett obtained a temporary emergency order of

protection against defendant.  The order provided that defendant was not to physically abuse, harass, stalk, interfere with

Leggett's personal liberty, or have contact with Leggett by any

means.

	Defendant testified that he went to 28 North Clark Street to

obtain an order of protection against Leggett on January 11, 2000. 

That day, defendant completed the paperwork to obtain an order of

protection against Leggett and requested that Kelly's Pub be named

as a protected location because he was planning to seek employment

there.  However, the hearing on his order was not held until the

following day, on January 12, 2000.

	Defendant testified that after completing the paperwork, a

court clerk informed him that an order of protection had been

obtained some days earlier by Leggett.  Based on that information,

defendant stated that he went to the Daley Center, where he was

served with Leggett's order of protection.  However, defendant had

previously indicated in the paperwork for his order of protection

that there was no other action pending between himself and Leggett. 

On January 12, the defendant failed, either orally or in his

written petition, to inform the court of the existence of Leggett's

order.

	On the night of January 20, 2000, Leggett was at Kelly's Pub, 

located at 959 West Webster Avenue in Chicago, Illinois, with her

friends George Panothiocas and Greg Sochacki.  Leggett testified

that the defendant walked into the tavern and upon seeing her

screamed "son of bitch."  Defendant then said, "Hi, Jane Meredith.  Hi Meredith.  What are you doing here?  What's up?"  The defendant 

was standing approximately 10 feet from Leggett.

	Leggett said that the defendant continued to speak to her,

still saying things like "How are you doing?" and "What are you

doing here?"  Defendant then said to Panothiocas, "So, I see you

made a new friend."  Neither Leggett nor Panothiocas responded to

defendant.

	Leggett further testified that defendant told her, "I'm going

to get you kicked out of here.  Just watch."  Defendant then went

to a public telephone where she overheard him call the police and

tell the police that he had a restraining order against her, she

was on the premises, and she needed to be removed.  When the police

arrived, Leggett showed them her order of protection against

defendant, and the police informed her that defendant had an order

of protection against her as well.  When Leggett told the police

she had not been served with defendant's order, they told her to

consider herself served.  The police then told her that defendant

was in violation of her order of protection and would be removed

from the tavern.

	Panothiocas testified that he, Leggett and Sochacki had been

at Kelly's Pub for approximately an hour when the defendant entered

the bar.  When defendant entered he "made some kind of derogatory 

comment."  Panothiocas stated that he thought defendant said, "son

of a bitch or all s***."  Panothiocas said that he did not believe

that the comment was directed at Leggett but instead was a general comment that the defendant made upon seeing Leggett.  Defendant

then said, "you should not be here" and "you have to leave."  

Defendant then "walked to the end of the bar.  He took a seat,

[and] made a comment to me."  The defendant said, "have you found

a new friend?"  Panothiocas did not respond.  Panothiocas stated

that the defendant said, "watch this."  The defendant then spoke to

a couple of guys at the end of the bar and called the police, who

arrived shortly thereafter.

	Sochacki testified that when the defendant walked into the

bar, he made a comment after seeing Leggett. Sochacki said that he

thought the defendant said, "god damn it or Jesus Christ or son of

a bitch."  Defendant then walked to the end of the bar.  Sochacki

said that there were some verbal exchanges, none of which he could

discern.  Sochacki stated that Leggett did not reply. The defendant

then said that he was going to call the police, and he requested

the phone number or the telephone book and made a phone call. 

While they were waiting, defendant asked Panothiocas "did you make

a new friend or have you made a new friend or something like that." 

The police arrived next.

	Defendant testified that he had been a "regular" at Kelly's

Pub for several years before, during and after his relationship

with Leggett.  Defendant testified that on the evening of January 

20, 2000, when he saw Leggett at Kelly's Pub, he informed Leggett

of his order of protection against her and told her that she should

leave the tavern, believing that his order meant that he could go to Kelly's Pub but Leggett could not.  Defendant then called the

police.  Defendant denied uttering an expletive upon seeing Leggett

or going near her in the tavern.

	In finding defendant guilty, the court stated that defendant's

order of protection had been fraudulently obtained and that

defendant had violated Leggett's order of protection.  The court

specifically stated that the case "really comes down to a matter of

the documents. *** The order of protection obtained by Ms. Leggett

*** indicates no contact by any means."  

	The trial court entered a finding of guilty on May 30, 2000. 

Stiles timely filed this appeal. 

					  ANALYSIS 

	Stiles argues that the State failed to prove that he violated

Leggett's order of protection beyond a reasonable doubt.  Stiles

asserts that he did not possess the requisite intent to violate

Leggett's order of protection because he mistakenly believed that

his order of protection allowed him to remain in Kelly's Pub.

	"[T]he State carries the burden of proving beyond a reasonable

doubt each element of the offense and the defendant's guilt."  

People v. Maggette, 195 Ill. 2d 336, 353 (2001), citing People v. Ware, 23 Ill. 2d 59, 62 (1961).  A reviewing court will not set aside a criminal conviction on grounds of insufficient evidence

unless the proof is so improbable or unsatisfactory that there

exists a reasonable doubt of the defendant's guilt. When considering the sufficiency of the evidence, it is not the function

of a reviewing court to retry the defendant.  Rather, the relevant 

question is whether, after reviewing all of the evidence in the

light most favorable to the prosecution, any rational fact finder

could have found beyond a reasonable doubt the essential elements

of the crime.  Maggette, 195 Ill. 2d at 353.

	It is well-settled that when a case is tried without a jury, 

it is the responsibility of the trial judge to determine the

credibility of the witnesses and weight to be given their

testimony, and where the evidence is merely conflicting, a

reviewing court will not substitute its judgment for that of the

trier of fact who heard the evidence.  People v. Anderson, 325 Ill. App. 3d 624, 634 (2001).

	"A person violates an order of protection of which he has

notice when he commits an act prohibited by a court in a valid

order of protection."  People v. Priest, 297 Ill. App. 3d 797, 800- 01 (1998), citing People v. Gee, 276 Ill. App. 3d 198, 200 (1995).  "The common law recognized that a crime required both actus reus, a guilty act, and mens rea, a guilty mind, and, with the exception of certain absolute liability offenses, the Criminal Code of 1961

(the Criminal Code) (720 ILCS 5/1-1 et seq. (West 2000)) retains this distinction.  Compare 720 ILCS 5/4-1 (West 2000) ('Voluntary

Act') with 720 ILCS 5/4-3 (West 2000) ('Mental State')."  People v. Mandic, 325 Ill. App. 3d 544, 547 (2001).  Here, the State was required to prove that: (1) defendant committed an act prohibited by an order of protection or failed to perform an act required by

an order of protection, and (2) defendant had been served notice of

or otherwise acquired actual knowledge of the contents of the

order.  Mandic, 325 Ill. App. 3d at 547, citing 720 ILCS 5/12- 30(a)(West 2000).

	It is undisputed that defendant had notice of Leggett's order 

of protection. The question for the trial court was whether

defendant committed an act prohibited by Leggett's order of

protection. Leggett's order of protection clearly stated that

"Respondent is further ordered and/or enjoined as follows: NO

CONTACT BY ANY MEANS."  As to the incident in question, Leggett,

Panothiocas and Sochacki all testified that when defendant saw

Leggett he used profanity and then he spoke to her.  Defendant's

actions constituted a violation of the order of protection's

provision that he was to have "no contact by any means" with

Leggett.

	In People v. Mandic, 325 Ill. App. 3d 544, this court affirmed the defendant's conviction for violating an order of protection

which provided that he was to "stay away" from his ex-wife and

their children.  The defendant violated the order of protection by

going to the church that his ex-wife and their children attended. 

The defendant knew they would be there and the trial court found

that defendant had physical contact with his children at the

church.  Mandic, 325 Ill. App. 3d at 549.  "Whether a defendant who is otherwise lawfully present in a public place comes within sufficient proximity of a protected person who is also present

there to constitute a violation of a stay-away order will depend on

a variety of factors.  See Bailey, 167 Ill. 2d at 229.  A court should consider factors including, but not limited to, the size of

the public area, the total number of people present, the

defendant's purpose for being present, the length of time, and when

the defendant knew or should have known that a protected party

would be present."  Mandic, 325 Ill. App. 3d at 549. 

	In People v. Bailey, 235 Ill. App. 3d 1, 2 (1992) this court affirmed the defendant's conviction for violating an order of

protection which provided that the defendant was to have "no

contact with Terri Bailey."  After reviewing the language of the

order of protection, this court affirmed the defendant's conviction

and rejected his defense that he had a right to be in the parking

lot where he exchanged words with his ex-wife and her boyfriend. 

"Even if they met accidentally, the burden would fall upon him to

get away from her. ***When he pulled his auto in front of the

vehicle occupied by Terri and then confronted her companion, he

violated the court order."  Bailey, 235 Ill. App. 3d at 3-4.  Applying the holdings in Mandic and in Bailey to the facts in the instant case, it is abundantly clear that defendant violated

Leggett's order of protection.

	Defendant argues that he should not have been found guilty

because he was acting pursuant to a valid order of protection which

prohibited Leggett from "entering or remaining at Kelley's Pub, a tavern defendant frequented.  We disagree.  12-30 (a) of the

Criminal Code provides in part:  "There shall be a presumption of

validity where an order is certified and appears authentic on its

face." 720 ILCS 5/12-30(a) (West 2000). However, section 215 of the

Illinois Domestic Violence Act of 1986 (Domestic Violence Act)

provides:

		"Mutual orders of protection are prohibited.

	Correlative separate orders of protection undermine 

	the purpose of this Act and are prohibited unless 

	both parties have properly filed written pleadings, 

	proved past abuse by the other party, given prior written 

	notice to the other party unless excused under 

	Section 217, satisfied all prerequisites for the 

	type of order and each remedy granted, and otherwise

	complied with this Act.  In these cases, the court 

	shall hear relevant evidence, make findings, and issue

	separate orders in accordance with Sections 214 and 

	221.  The fact that correlative separate orders are 

	issued shall not be a sufficient basis to deny any remedy

	to petitioner or to prove that the parties are equally 

	at fault or equally endangered."  750 ILCS 60/215 

	(West 2000).

	The defendant secured his order of protection in violation of 

section 215 of the Domestic Violence Act.  See In re Marriage of Gordon, 233 Ill. App. 3d 617, 648 (1992).  The trial court in the instant case specifically stated: "I find the order of protection

was fraudulently obtained by Mr. Stiles."  While section 12-30 of

the Criminal Code provides that orders are presumed to be valid

when they are certified and appear authentic on their face, this

presumption may be overcome, as the trial court in the instant case

found. Assuming arguendo that Stiles' order of protection was valid even though it was fraudulently obtained and not served upon

Leggett, the existence of that order in no way voided Leggett's

order of protection, which provided that Stiles was to have "no

contact by any means" with Leggett.  If defendant wished to enforce

the proscription, in his order of protection barring Leggett from

defendant's favorite tavern, defendant should have gone directly to

a phone and called the police to remove Leggett.  Defendant was not

free to violate the provisions of Leggett's order of protection.

	For the foregoing reasons, defendant's conviction and sentence

are affirmed.

	Affirmed.                    

	GREIMAN, J., concurs.

	REID, J., dissents.

     JUSTICE REID, dissenting:

	I disagree with the majority's conclusion that Stiles violated

Leggett's order of protection.  In my humble opinion, Stiles did

not violate Leggett's order of protection because he lacked the

required scienter.  Since violating an order of protection is not a strict liability offense (Mandic, 325 Ill. App. 3d at 548), the question for this court is whether the defendant possessed the

requisite intent to be found guilty beyond a reasonable doubt.

	Section 5/112-30 states: "There shall be a presumption of

validity where an order is certified and appears authentic on its

face."  720 ILCS 5/12-30(West 2000) Further, section 215 provides:

	"Mutual orders of protection are prohibited.  Correlative

separate orders of protection undermine the purposes of

this Act and are prohibited unless both parties have

properly filed written pleadings, proved past abuse by

the other party, given prior written notice to the other

party unless excused under Section 217, satisfied all

prerequisites for the type of order and each remedy

granted, and otherwise complied with this Act.  In these

cases, the court shall hear relevant evidence, make

findings, and issue separate orders in accordance with

Sections 214 and 221.  The fact that correlative separate

orders are issued shall not be a sufficient basis to deny

any remedy to petitioner or to prove that the parties are

equally at fault or equally endangered."  750 ILCS 60/215 (West 2000).

	Here, the defendant had what he believed to be a valid order

of protection.  At the hearing held on January 12, 2000, Stiles

should have informed the trial judge that the paperwork for his

order of protection needed to be amended.  The defendant should

have informed the trial judge that since the time he had initially

filled out the paperwork for his order of protection, he had come

to learn of the existence of Leggett's order of protection.  This

was not done.

	Stiles was a layman and not an experienced attorney.  It would

not be appropriate to hold a layman to the same standards as an

attorney.  It does not appear that Stiles attempted to fraudulently

obtain his order of protection.  When he initially filled out the

forms for his order of protection, the defendant provided truthful

information.  However, the defendant was unable to appear before a

judge.  

	The next day at the hearing, Stiles failed to inform the court

that he had learned of Leggett's order of protection.  This

omission did not appear to be intentional, but rather the mistake

of a layman.  Had the court questioned him and he then gave an

untrue answer, this would be a different case.

	Situations like this, where individuals basically race to the

courthouse to acquire ex parte orders of protection, are not uncommon.  At the hearing held on January 12, the trial judge should

have asked the defendant from the bench if Leggett held a separate order of protection against him.  This simple question from the

judge would have prevented this situation from occurring.  	There

needs to be an administrative measure taken by trial courts to

prevent events like this from happening.  Here, because Leggett had

only just come to the courthouse six days earlier to get an order

of protection, the court clerk remembered her name and related this

information to Stiles.  Why is this important information not

available to the judge who is issuing the orders of protection? 

Had this occurred, only one order of protection would have been

issued instead of two.

	When defendant entered Kelly's Pub, he possessed an order of

protection that which prohibited Leggett from being there.  Even if that

order was voidable, it was valid until a judge vacated it.  Stiles

believed that he could rightfully remain at Kelly's Pub.  The

defendant told Leggett that she could not be there based on his

order of protection and then he called the police.  Under these

undisputed facts, the defendant did not violate the Leggett order

of protection because he did not have the requisite scienter.

	For the foregoing reasons, therefore, I respectfully dissent.