NO. 4-00-0776

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

           Plaintiff-Appellee,

           v.

SEAN MICHAEL THOENNES,

           Defendant-Appellant.	)

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)	  Appeal from

  Circuit Court of 

  McLean County

  No. 99CF1482

  Honorable

  Donald D. Bernardi,

  Judge Presiding.

______________________________________________________________

		JUSTICE TURNER delivered the opinion of the court:

		In January 2000, defendant, Sean Michael Thoennes, was

charged with the offense of false personation of a peace of

officer (720 ILCS 5/32-5.1 (West 1998)).  Following a jury trial

in April 2000, defendant was convicted and sentenced to 24

months' probation.  On appeal, defendant argues the false person

ation of a peace officer is unconstitutional as it is violative

of substantive due process and overbroad.  We affirm.

I. BACKGROUND

		In January 2000, a grand jury returned an indictment

against defendant, along with his cousin, Robert Thoennes (not a

party to this appeal), charging him with the offense of false

personation of a peace officer, a Class 4 felony, pursuant to

section 32-5.1 of the Criminal Code of 1961 (Criminal Code) (720

ILCS 5/32-5.1 (West 1998)) in that he knowingly and falsely

represented himself to be a peace officer of any jurisdiction by

identifying himself as a police officer to Jessica Hoelscher.

		A consolidated jury trial commenced in April 2000.  Jessica Hoelscher testified she was driving her mother's Explorer on December 27, 1999, around midnight.  Her friend, Katy

Benjamin, was also in the vehicle as they headed west on College

Avenue in Normal.  While driving, Hoelscher noticed two males in

a Camaro traveling next to them.  She indicated the two males

proceeded to repeatedly speed up and slow down and later the

Camaro's passenger "flipped [her] off."  Upon approaching a set

of railroad tracks, the Camaro swerved in front of the Explorer,

and Hoelscher stated she "braked hard."  Thereafter, she decided

to write down the license plate number of the Camaro and report

it to the police.  Hoelscher then followed the Camaro to a

residential neighborhood where both vehicles stopped.  She

indicated the passenger of the Camaro, identified as defendant,

exited the vehicle and came up to her window.  An "angry" conver

sation took place with defendant using profanities.  After

telling defendant and the Camaro driver, Robert Thoennes, that

she wanted the license plate number, Hoelscher testified that

defendant stated "he was a police officer."  Hoelscher stated she

disbelieved the two males were police officers and asked for

proof.  She stated Robert Thoennes entered his car and "pulled

out what appeared to be a badge."  After requesting their names,

defendant responded his name was "Officer Jack Off" and made a

motion as if he was masturbating.  Hoelscher then drove off

without getting the Camaro's license plate numbers.  The occu

pants of the Camaro then began following the Explorer, and

Hoelscher indicated she was "slightly" concerned for her safety.  Hoelscher testified she was able to take down the Camaro's

license plate number and call the police after the Camaro had

driven into someone's yard and hit a mailbox.

		Katherine Benjamin testified she was traveling with her

friend Jessica Hoelscher on the night of December 27, 1999.  She

stated the passenger of the Camaro "flicked us off" and later the

car swerved into their lane causing Hoelscher to brake.  Benjamin

stated Hoelscher proceeded to follow the Camaro to get the

license plate number and report it to the police.  Once the two

vehicles stopped, defendant exited the Camaro and began yelling

at them.  Thereafter, all the parties involved engaged in a

shouting match and traded profanities.  At one point, Robert

Thoennes reached into his car and quickly flashed a badge stating

he was a police officer.  Benjamin indicated the shiny smooth

material appeared to be a badge.  She also testified defendant

stated his name was "Officer Jack Off" and made a motion with his

hands near his crotch.  After Hoelscher and Benjamin questioned

defendant's use of profanity, defendant stated he could do

anything he wanted because they had "the law behind us."  She

also stated the driver told her and Hoelscher that they were

going to spend the night in jail.  After the males in the Camaro

began following them, Benjamin stated she called 9-1-1 because

"we didn't feel safe." 

		Defendant testified on his own behalf.  He stated he

was a passenger in a Camaro that was being followed by a Ford

Explorer.  After both vehicles stopped, the occupants of both vehicles exchanged heated language.  After becoming frustrated

with the argument with the girls, defendant stated he and his

cousin left.  Thereafter, they were stopped by a Normal police

officer.  On cross-examination, defendant stated he did not know

there was a badge in the car until the police officer asked about

it.

		Robert Thoennes testified that at the time of the

incident he worked for Wackenhut Security.  He indicated he wore

a uniform and a badge while on duty.  On December 27, 1999, he

stated he and his cousin confronted the females in the Explorer. 

He began writing the Explorer's license plate number down "to

kind of scare them" so they would not follow them any longer. 

Robert then proceeded back to the Camaro to retrieve a cell

phone.  He testified he held up a gold cell phone with a metallic

finish and said he was calling the police.  He stated he had two

badges in his car that night, but he never stated he was a police

officer or showed the girls a badge.

		Following closing arguments, the jury returned a guilty

verdict as to defendant and Robert Thoennes of false personation

of a police officer.  In May 2000, defendant filed a motion for

new trial arguing, inter alia, that section 32-5.1 of the Crimi nal Code was unconstitutional, which the trial court denied. 

Thereafter, the trial court sentenced defendant to 24 months'

probation.

		In July 2000, defendant filed a motion to reconsider

the trial court's denial of his posttrial motion alleging section 32-5.1 of the Criminal Code was unconstitutional.  720 ILCS 5/32-

5.1 (West 1998).  The trial court found the statute was not

unconstitutional and denied defendant's motion.  The trial court

then reimposed defendant's sentence of 24 months' probation. 

This appeal followed.

II. ANALYSIS

A. Substantive Due Process

		Defendant argues the false personation of a peace

officer statute is unconstitutional because it does not require

the false personation be committed for an unlawful or improper

purpose which criminalizes a substantial amount of innocent

conduct and violates state and federal substantive due process

guarantees.  We disagree.

		All statutes are presumed constitutional.  In re R.C., 195 Ill. 2d 291, 296, 745 N.E.2d 1233, 1237 (2001).  The party

challenging the constitutionality of the statute bears the burden

of clearly establishing the alleged constitutional violation. 

R.C., 195 Ill. 2d at 296, 745 N.E.2d at 1237.  

		"Pursuant to its police power, the legisla

ture has wide discretion to establish penal

ties for criminal offenses, but this discre

tion is limited by the constitutional guaran

tee that a person may not be deprived of

liberty without due process of law.  In re K.C., 186 Ill. 2d 542, 550 (1999).  When legislation does not affect a fundamental constitutional right, the test for determin

ing whether it complies with substantive due

process requirements is the rational basis

test.  People v. Hamm, 149 Ill. 2d 201, 216 (1992).  Under this test, a statute will be

upheld if it 'bears a reasonable relationship

to a public interest to be served, and the

means adopted are a reasonable method of

accomplishing the desired objective.'  People v. Adams, 144 Ill. 2d 381, 390 (1991)."  People v. Wright, 194 Ill. 2d 1, 24, 740 N.E.2d 755, 766-67 (2000).

		In People v. Wick, 107 Ill. 2d 62, 65-67, 481 N.E.2d 676, 678-79 (1985), the supreme court found a portion of the

aggravated arson statute (Ill. Rev. Stat. 1981, ch. 38, par. 20-

1.1(a)(3)) unconstitutional as it violated due process.  The

statute provided that a person committed aggravated arson, a

Class X felony, when he knowingly damaged a building by fire and

a fireman or policeman was injured while present at the scene. 

Wick, 107 Ill. 2d at 64, 481 N.E.2d at 678.  The court stated, in part:

			"Because aggravated arson as defined by

the statute does not require an unlawful

purpose in setting a fire, however, the stat

ute as presently constituted sweeps too

broadly by punishing innocent as well as culpable conduct in setting fires.  Under

this statute, for example, a farmer who de

molishes his deteriorated barn to clear space

for a new one is liable for a Class X penalty

if a fireman standing by is injured at the

scene.  If the statute's purpose is to pro

vide a severe penalty for arsonists whose

conduct results in personal injury to firemen

or policemen, the statute does not bear a

reasonable relationship to its purpose be

cause the penalty is not limited to arson

ists."  Wick, 107 Ill. 2d at 66, 481 N.E.2d 678-79.

		Similarly, in People v. Zaremba, 158 Ill. 2d 36, 42-43, 630 N.E.2d 797, 800 (1994), the supreme court held a portion of

the theft statute did not bear a rational relationship to a

legitimate state purpose.  The statute in question stated a

person committed theft when he knowingly exerted "'control over

property in the custody of any law enforcement agency which is

explicitly represented to him by any law enforcement officer or

any individual acting in behalf of a law enforcement agency as

being stolen.'"  (Emphasis omitted.)  Zaremba, 158 Ill. 2d at 39- 40, 630 N.E.2d at 798, quoting Ill. Rev. Stat. 1989, ch. 38, par.

16-1(a)(5).  The supreme court stated that, although the stat

ute's purpose was to enable officers to conduct undercover

operations to break up fencing operations, it was not reasonably related to that purpose because it could "potentially subject[]

wholly innocent conduct to punishment."  Zaremba, 158 Ill. 2d at 42, 630 N.E.2d at 800.  For example, the court noted defendant's

argument that the statute could be applied to the innocent

conduct of a police evidence technician's lawful custody of known

stolen property given to him by an officer for safekeeping. 

Zaremba, 158 Ill. 2d at 38-39, 630 N.E.2d at 798.

		In In re K.C., 186 Ill. 2d 542, 553, 714 N.E.2d 491, 497 (1999), the supreme court held sections 4-102(a)(1) and 4-

102(a)(2) of the Illinois Vehicle Code (Vehicle Code) violated

due process by "potentially punish[ing] wholly innocent conduct

without requiring proof of a culpable mental state."  The provi

sions of the Vehicle Code read, in relevant part:

			"(a) It is a violation of this Chapter

for:

			(1) A person, without authority to do

so, to damage a vehicle or to damage or re

move any part of a vehicle;

			(2) A person, without authority to do

so, to tamper with a vehicle or go in it, on

it, or work or attempt to work any of its

parts, or set or attempt to set it in mo

tion."  625 ILCS 5/4-102 (West 1996).

The supreme court, citing Zaremba and Wick, found the sections of the Vehicle Code were capable of punishing wholly innocent

conduct.  K.C., 186 Ill. 2d at 551-52, 714 N.E.2d at 496-97.  The court noted a Good Samaritan could violate the statute for

entering an unlocked car to turn off the headlights, or a young

ballplayer could be branded a criminal for an inadvertent line

drive through the neighbor's windshield.  K.C., 186 Ill. 2d at 552-53, 714 N.E.2d at 497.

		In the case sub judice, section 32-5.1 of the Criminal Code states "[a] person who knowingly and falsely represents

himself to be a peace officer of any jurisdiction commits a Class

4 felony."  720 ILCS 5/32-5.1 (West 1998).  The statute exists to

protect "citizens who would be harmed or deceived by those acting

under the color of authority ***."  People v. Ellis, 296 Ill. App. 3d 862, 866, 696 N.E.2d 1, 3 (1998).  However, this is not necessar

ily the sole purpose of the statute nor does it require the

possibility of harm to a citizen for an offender to be guilty of

the crime.  People v. Reyes, 328 Ill. App. 3d 918, 929, 768 N.E.2d 374, 384 (2002).  It is clear the legislature's purpose in

enacting section 32-5.1 was to prevent the public from being

deceived into believing an individual who represents himself to

be a peace officer has the authority to act in an official

capacity when no such authority exists.  This is so even if the

impersonator has no criminal purpose in mind.

		A person who knowingly and falsely represents himself

to be a peace officer can potentially create a dangerous situa

tion for the unknowing public.  For example, a motorist who has

just witnessed a serious accident may request assistance from an

impersonator believing the impersonator has the capacity to call immediately for emergency services.  If the actions of the

impersonator in receiving the request for assistance would

reasonably lead the motorist to believe the impersonator was a

peace officer, a violation would have occurred.  The unsuspecting

motorist might well go on her way believing that her request for

assistance has been acted upon.

		We are unpersuaded by defendant's argument that the

statute potentially allows for punishment of innocent conduct. 

By way of example, defendant argues that an actor playing the

role of a peace officer in a movie or a person masquerading as a

peace officer at a Halloween party could potentially be charged

under the statute.  We disagree.  The statute allows for criminal

prosecution only if a person "knowingly and falsely represents himself to be a peace officer." (Emphasis added.) 720 ILCS 5/32-

5.1 (West 1998).  The cardinal rule of statutory construction is

to give effect to the language and intent of the legislature. 

People v. Hicks, 164 Ill. 2d 218, 222, 647 N.E.2d 257, 259 (1995).  In determining legislative intent, words in the statute

are to be given their plain and ordinary meaning.  Hicks, 164 Ill. 2d at 222, 647 N.E.2d at 259.  Thus, a court must consider

every statutory provision and attach a reasonable meaning to

every word or phrase.  In re S.P., 323 Ill. App. 3d 352, 357, 751 N.E.2d 1270, 1274 (2001).  The legislature chose to use the words

"knowingly and falsely" in conjunction.  Section 4-5 of the

Criminal Code states:

			"A person knows, or acts knowingly or with knowledge of:

			(a) The nature or attendant circum-

stances of his conduct, described by the

statute defining the offense, when he is

consciously aware that his conduct is of such

nature or that such circumstances exist. 

Knowledge of a material fact includes aware

ness of the substantial probability that such

fact exists.

			(b) The result of his conduct, described

by the statute defining the offense, when he

is consciously aware that such result is

practically certain to be caused by his con

duct.

			Conduct performed knowingly or with

knowledge is performed wilfully, within the

meaning of a statute using the latter term,

unless the statute clearly requires another

meaning."  720 ILCS 5/4-5 (West 1998).  

We further note that a plain and ordinary definition of "false"

is "tending to deceive or mislead; deceptive."  Webster's College

Dictionary 469 (2nd ed. 1997).  An actor or Halloween masquerader, contrary to defendant's assertion, does not knowingly and falsely

represent himself to be a peace officer.  There is no conscious

intent on either's part to deceive the public that they are

acting in the official capacity of a police officer.  Our inter pretation of the statute is consistent with and furthers three

important rules:  "(1) a court must ascertain and give effect to

the legislature's intent in enacting the statute [citation]; (2)

in construing a statute, this court has a duty to affirm the

statute's validity and constitutionality if reasonably possible

[citation]; and (3) an interpretation that renders a statute

valid is always presumed to have been intended by the legislature

[citation]."  People v. Bailey, 167 Ill. 2d 210, 225, 657 N.E.2d 953, 960-61 (1995).  Accordingly, we hold the statute does bear a

reasonable relationship to the public interest served, and the

means adopted are reasonable to accomplish the desired objective.

		Our holding is not inconsistent with People v. Rinehart, 81 Ill. App. 2d 125, 128-29, 225 N.E.2d 486, 488-89 (1967).  In that case, a watchman, wearing a uniform, was stand

ing near his car, which was equipped with a Mars lights.  Although

his appearance may have given the impression that he was   a

peace officer, he did not knowingly and falsely represent himself

to be one.  Hence, a conviction under section 32-5.1 could not

stand.  Rinehart, 81 Ill. App. 2d at 129, 225 N.E.2d at 488-89.

B. Overbreadth Doctrine

		Defendant also argues section 32-5.1 of the Criminal

Code violates the constitutional guarantees of freedom of

expression because it is overbroad.  We disagree.

		"The doctrine of overbreadth is designed to protect

first amendment freedom of expression from laws written so

broadly that the fear of punishment might discourage people from taking advantage of that freedom."  People v. Anderson, 148 Ill. 2d 15, 26, 591 N.E.2d 461, 466 (1992), citing Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 37 L. Ed. 2d 830, 839-40, 93 S. Ct. 2908, 2915-16 (1973), and Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413, 92 S. Ct. 1103, 1105 (1972).  The United States Supreme Court has stated that "'particularly where

conduct and not merely speech is involved, we believe that the

over-breadth of a statute must not only be real, but substantial

as well, judged in relation to the statute's plainly legitimate

sweep.'"  Hill v. Colorado, 530 U.S. 703, 732, 147 L. Ed. 2d 597, 621, 120 S. Ct. 2480, 2498 (2000), quoting Broadrick, 413 U.S. at 615, 37 L. Ed. 2d at 842, 93 S. Ct. at 2918.  The doctrine is

used sparingly, and an overbreadth challenge may be made "only if

the statute is one that may inhibit the exercise of rights of

expression or association protected by the first amendment." 

Bailey, 167 Ill. 2d at 226, 657 N.E.2d at 961.

		We reject defendant's argument that the effect of the

statute's "sweeping" language is to ban the impersonation of a

peace officer "regardless of the individual's motivation for

doing so."  As stated previously, the statute's language requires

a person to "knowingly and falsely" (emphasis added) represent himself to be a peace officer.  720 ILCS 5/32-5.1 (West 1998). 

The legislature has a legitimate interest in preventing the

public from being deceived by such an individual.  Defendant's

argument that the statute will have a chilling effect on innocent

conduct is based on broad speculation and fails to consider the meaning of the statutory language and its purpose.  Section 32-

5.1 is not so broadly drafted that possible unconstitutional

applications are real and substantial.  Thus, defendant's argu

ment must fail as section 32-5.1 is not unconstitutionally

overbroad, and his conviction must be upheld.

III. CONCLUSION

		For the reasons stated, we affirm the trial court's

judgment.

		Affirmed.

		McCULLOUGH, P.J., and sSTEIGMANN, J., concur.