## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Fin kenbinder , 2011 IL App (2d) 100901

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. NI CHOLAS T. FI

NKENB I NDER, Def

endant- Appellant.

District & N o. Second District Docke t No. 2-10-0901

Filed Dec ember 28, 2011

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s conviction for c onsumption of alcohol while under the ag e of 21 was upheld over his contention that he was subject to the statutory exemption in section 6-20(e ) of the L iquor Control Act of 1934 providing that t h e consumption of alcohol by a person under 21 is not prohibited when the person is un d er t h e direc t supervision and approva l of his
pare nts or pare nt or those persons standing in loco par en t is o f such
person in the privac y of a home, sinc e t h e fac ts in defe ndant’s case showed that even u n d er th e most liberal definition of “dire ct supervision,” defe ndant’s mother was not direc tly supervising him while he wa s consuming a lcohol.

Dec ision Under Review Appeal from the Circuit Court of Boone County
, No. 09-CM-431; the Hon. J ohn H. Young , Judg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Thomas A. L ilien and J osette Skelnik, both of State Appellate Def ender ’s Offic e, of Elg in, for appe llant.

Michelle J

. Courier, State’s Attorney
, of Be lvidere (L awr ence M. Ba uer and Diane L

. Campbell, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for

the People.

Panel J USTI CE SC H O ST O K d e li v e red the judgme nt of the court, with opinion.
J ustices Z enoff

and Hudson c oncurr ed in the judgment and opinion.

OP INION

¶ 1 Following a b en ch t ri al
, d ef en d an t , Ni cholas T. Finkenbinde r, was convicted of consuming alcohol while under the ag e of 21 (235 I L CS 5/6-20(e) (West 2008)) and was sentenc ed to one year of court supervision. De fe n d an t appeals, arguing that the trial court

err ed in concluding that he wa s n o t exempt from prosec ution under the statute. For the

rea sons that follow, we a ffirm.

¶ 2 BA CKGROUND ¶ 3 The evidenc e prese nted at trial tended to prove the following

. On June 3, 2009, defe ndant

was 19 year s old and lived with his pare nts and sister. On that day
, his pare nts threw a family
g athering for defe ndant’s uncle and cousin, both of whom wer e in t h e m i litary and would

soon be leaving on deploy ment and for basic training

. As part of the cele bration, defe ndant’s mother g rante d defe ndant permission to consume alcohol at the party

. During the party , defe ndant and his mother were not in the s ame room at all times, as people mingled about the house and yard. Def

enda n t ’s m o t her observe d defe ndant consume two or three beer s duringthe cour se of the e vening

. ¶ 4 At approximately 3:43 a.m. on J une 4, 2009, Offic er Robert Kozlowski of the B elvidere police depar

tment responde d to a call of sus picious activity

. Kozlowski did not observe
any thing suspicious in the are a identified in the call and he proce eded to a near by 7-Eleve n. About a block awa

y from the 7-Eleve n, Ko zl o w ski observe d defe ndant walking in the middle of t h e s tree t. There wer e sidewalks in the are a, and nothing was blocking their use. Kozlowski stopped to speak with defen d ant. Kozlowski could smell the odor of alcohol coming from defe ndant. Def endant admitted to having consumed alcohol, telling Kozlowski that he had consumed t h ree beer s. Def endant agree d to submit to a breath test, which

reve aled a blo o d al co hol content of 0.09. After submitt ing to the breath test, defe ndant admitted to Kozlowski that he had consumed some shots of alcohol in addition to the beer s.

-2-Kozlowski pl ace d defe ndant under arr est for unde rag e drinkingand tra nsported him to the police depar

tment. There
, defe ndant submitt ed to another breath test, which reve aled a blood alcohol conte nt of 0.097. ¶ 5 Def

endant’ s mother was una

war e of the fac t that he had lef t the house. ¶ 6 The trial court found defe ndant guilty
, concluding t h at h e wa s n o t u n der the direc t supervision of his mother upon leaving the house. ¶ 7 Following an unsucce ssful motion for a new trial, defe ndant was sentenc ed to one year of cour t supervision. He then br ought this t imely appea l.

¶ 8 ANALYSI S ¶ 9 On appea l, de fenda nt a rgues that the trial court e rre d in finding him guilty
, beca use his conduct fell within the exemption provided for in the statute. Section 6-20(e ) of the L iquor C ontrol Act of 1934 (Ac t) (235 I L CS 5/6-20(e) (West 2008)) provides that “[ t ] h e consumption of alcoholic liquor by any person under 21 year s of ag e is forbidden.” The Act further provides, howeve r, that “the consumption [of alcoholic liquor] by a person under 21
year s of ag e under the direc t supervision and approva l of the pare nts or p ar en t o r th o s e persons standing in loco p ar enti s of such person under 21 year s of ag e in the privac y of a home, is not prohibited by this Act.” 235 I L CS 5/6-2 0(g ) (West 2008). We hold that defe ndant was not subjec t to this exemption. ¶ 10 Initially
, defe ndant notes that in the trial court his counsel ref err ed to section 6-20(g ) as an affirmative defense to the charg ed offense. On appea l, he contends that section 6-20(g ) is corre ctly

classified a s an exemption. The State conce des that sec tion 6-20(g ) i s properly char acte rized as an exemption, and we agree

. See People v. Foster
, 195 I ll. App. 3d 926, 953 (1990) (whe re the provision was neither an element of the offe nse nor label ed as an aff irmative defe nse, it was properly charac t er ized as an exemption). The parties, citing to People v. Smith
, 71 I ll. 2d 95 (1978), agree that the defendant bears the burden of proving the exempti o n by a preponde ranc e of the evidenc e. We note, howeve r, that Smith and the other case s that state that the defe ndant bear s the burden of proving an ex emption by a preponde ranc e of the evidenc e all discuss the exemptions to the offe nse of unlawful use of a weapon (see gene rally 720 I L CS 5/24-2 (West 2008)). That statute specific all y p ro v ides that the defe ndant bear s the burden of proving those exemptions

. 720 I L CS 5/24-2(h) (West 2008). Her e, by contra st, the statute does not specific ally provide that the defe ndant bear s the burden of proving the exemption. Howe ver, beca use the parties a gree upon the burden, we will assume that it applies. ¶ 11 There is no dispute that defe ndant had his mother’s approva l to consume alcohol and that all of the alcohol he consumed was consumed in the privac y of his pare nts’ home. At issue is whether he was under the “dire ct supervision” of his mother when he consumed the alcohol. The trial court conclude d that defe ndant was not under the direc t supervision of his mother, based on the fac t that his mother was unawa re that he had left the house. Def endant

co n t en ds that such a finding was err or, as the exemption require d that defe nd an t b e supervised only while consuming the alcohol, and there was no evidenc e that he consumed alcohol after he left t he house. The S tate, in response , argues that t he fact that defendant’s

-3-mother was unawa re that he had consumed shots and that he had left the house indicates that defe ndant was not unde r his mother’s dire ct supervision. We agree with the State. ¶ 12 Whil e the Act does not define the term “ direc t supervision,” it is unnece ssary for us to

co n s t ruct a definition of our own, as there was sufficie nt evidenc e for the trial co u rt t o conclude that defe ndant was not under the s up er v ision of hi s mother, much less her direct supervision. The term “super vision” alone means “th e act, proce ss, or occupation of supervising .” W ebster’ s Third New International Dictionary 2296 (1 9 9 3); see also People

v. Beac hem
, 22 9 I l l

. 2 d 2 3 7
, 244 (2008) (whe n a term is not statutorily define d, we are to presume that the leg islature intended the ordinary and popularly understood meaning
, which
may be asce rtained through use of the dictionary ). “Supervise” means “to coordinate, direc t, and inspect continuously and at first hand the ac co mp lishment of.” Webster’s Third New International Dictionary 2296 (1993). The Act provides that its provisions are to be “libera lly construed, to the end that the health, safe ty and welfa re of the People of the State of I llinois shall be protec ted and tempera nce in the consumption of alcoholic liquors shall be fostere d and promoted by sound and car eful control and regulation of the manufa cture , sale and distribution of alcoholic liquors.” 235 I L CS 5/1-2 (West 2 0 0 8). As the First District once explained, statutes regulating the possession, furnishment, and use of alco h o l b y minors “demonstrate that minors a re to be aff

orded specia l pr otection, under I llinois law, from the deleterious conseque nces of alcohol abuse and that minors are not deeme d capa ble of
appre ciating the risks of alcohol consumption.” Cravens v. Inman
, 223 I ll. Ap p

. 3d 1059, 1078-79 (1991)

. ¶ 13 Given the Act’s g oal of providing for safe ty and t em p er an ce i n the consumption of alcohol and the leg islature’s demonstrated belief that people under the ag e of 21 are g ener ally incapa ble of appre ciating the risks of alcohol consumption, we conclude that supervision in this context require s, at the very least, an awa rene ss of the minor’s wher eabouts and level of intox ication. The evidence prese nted at trial established that, although def endant’ s mother
approve d of defendant’ s consumption of alcohol and was prese nt in the same house whil e defe ndant was consuming the alcohol, she was unawa re of how much defe ndant drank, the ty pe of a lcohol defe ndant drank, and his wher eabouts duringthe cour se of the night. From these facts, t here was sufficient evidence for t he trial court to infer that defe n d an t wa s n ot under the supervision–much less the direc t supervision–of his m o t h er wh en he was consuming alcohol. C erta inly
, defe ndant’s mot her cannot be sa id to have been conducting

a continuous and first-hand coordination, direc tion, or inspection of defe ndant ’s al co hol consumption if she was unawa re of the most basic of fac ts about defe ndant’s activities, such

as the ty pe of a lcohol he wa s consuming, how much alcohol he consumed, a nd his le aving the house. ¶ 14 Def

endant makes much of the fac t that the statute require s that the minor’s consumption of alcohol, not the minor’s activities following his consumption, be d i re ctl y supervised. Acc ording to de fenda

nt, the trial court’s interpre tation of the statute leads to a bsurd results beca use it would require supervising pare nts to rema in in the same location as the consuming minor until all of the alcohol is metabolized. We disagree

. Whil e we agree that the statute’s focus i s o n the supervision of the minor’s alcohol consumption, the fac t that defe ndant’s mother was unawa

re that he had left the house allows for the infere nce that her supervision

-4-of his actua l alcohol consumption was also lacking

. This infere nce is cer tainly buttressed by the fa ct that def

endant’ s mother was awa re only that defe ndant had consumed two or three beer s, when in rea lity defe ndant had consumed not only two or three beer s, but also multipl e shots of hard liquor. Whether “dire ct supervision” require s the supervising pare nt to stay by the m i nor’s side until all of the alcohol has metabolized need not be decide d here

. As discussed above, the fac ts of the prese nt case allow us to conclude that, under even the most liberal definition, defe ndant’s mot h er was not direc tly supervising him while he was consumingalcohol.

¶ 15 CONCLUSI ON ¶ 16 The judgment of the c ircuit court of BooneCounty

is affirme d.

¶ 17 Affir

med.

-5-