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A p p e l l a t e C o u r t

People v . Farm er , 2011 IL App (1st) 083185

Appellate Court Caption THE PEOPLE OF THE STATE OF IL LINOI S, Plaintiff-Appe l lee, v. FREDDI E FA RMER, Defendant-Appellant.

District & N o. First District, Third Division Docke t No. 1–08–3185

Filed J une 1, 2011

Held ( Note : T

his syl lab us

con st it ute s no p a rt of the opi nio n of the cour t but has bee n pre

par ed by 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

. ) The constitutionalit y of section 32–5.3 of the Criminal Code, cre ating the offe nse of falsely repr esenting oneself to be the pare nt, leg al g uardian or other relation of a minor chil d to a public employ ee, was upheld over defe ndant’s contention that the statute was unconstitutionally overbr oad and criminalized constitutionally protec ted speec h
, an d his contention that his counsel was ineffe ctive also was reje cted, since the State has a compelling interest in safe g uarding minors, the State’s proposal to limit the application of the statute to false statements g iv en knowing ly and with the intent of dece iving the rele vant publi c official or employ ee advanc ed the State’s interes t i n protec ting minors while limit ing the punishment of speec h to case s wher e a p er s o n knowing ly dece ives a public official or employ ee to frustrate the operations of government in the protec tion of minors, and althoug h defe nse counsel’s repe ated
statements at trial that defe ndant was “no t a saint” may have sug g ested that defe ndant was involved in other criminal activities, it ref lected a trial strateg y suited to the evidenc e ag ainst defe ndant, and g iven that evidenc e, there was no rea sonable probability that counsel’s perf ormanc e aff

ecte d the trial’s re sult.Dec ision Under

Review Appeal from the Circuit Court of Cook County
, No. 02–12 1 3 4 4 6 ; the Hon. Anthony

A. I osco, Judge, pr esiding

.

J udg ment Affirmed.

Counsel on Appeal Michae l J

. Pelletier, Patricia Un s i n n , and J essica Wy nne Arizo, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s At t o rney , of Chicag o (Alan J

. Spellberg
, Annette Colli ns, Tasha- Marie Kelly
, and Gino Be tts, J r., Assistant St ate ’s Attorney s, of counse l), for thePeople.

Panel J USTI CE STEELE delivere d the judg ment of the c ourt, with opinion. Presiding J ustice Qui nn and J ustice Neville concur red in the judgme nt and opinion.

OP INION

¶ 1 Following a jury trial in the circ uit court of Cook County
, defe ndant Freddie F arme r

was found g uilty of falsely repr esenting himself or herse lf to be the pare nt, leg al g uardian or other relation of a minor child to a public employ ee, which in this case was a police office r (720 I L CS 5/32–5.3 (West 2002)). Farmer was sentenc ed to 364 day s in the C o o k County Depa rtment of C orre ctions. Fa rmer now appeals, arg uing: (1) t he false per s onation statute violates the first and fourtee nth amendments to the United States Constit ution (U.S. Const., amends. I
, XIV) ; an d (2 ) he rec eived ineffe ctive assistance of counsel at trial. For the following rea sons, we re

ject both claims and affirm the judg ment of the trial c ourt.

¶ 2 BA CKGROUND ¶ 3 The rec ord on appeal discloses the following fac ts. At trial, Victoria C. testified that her daug hter, L .W., ran away in Marc h 2002, when she was a 12-y ear -old. Victoria C. filed

a missing person report w ith the Chicag o police department. T he story was featured on the local C hannel 5 news and a poli ce prog ram. Victor i a C

. fu rt her testified she di d not know Fa rmer, she had not g iven hi m permission to car e for her daug hter, and he was not related to her or he r daug hter. ¶ 4 Chicag o police officer O’Ne al testified that on J une 1, 2002, at approximately 3 p.m.,

-2-h e an d Offic er Clarence Wil liams wer e on routine foot patrol, i n uniform, i n an op en ar ea

shopping mall located on 63rd and Halsted Street. A store employ ee alerted the office rs that he saw a g irl who was featured on Crime Watch as a missing person in the mall, and he pointed her out to them. The g irl, who was identified as L .W., was wea ring a black spandex halter- top, black spande x pants, hig h heels, and makeup on he r fa ce. ¶ 5 Offic er O’Ne al testified that he asked Fa rmer, who was walking with L .W., who she

was and Fa

rmer responde d, “Shanetta Thompson” or “Shanetta Tomson,” his 16-y ear -old cousin. Offic er Wil liams also testified Fa rmer said L .W. was his cousin, “Shauna Tompson,” but denied Fa

rmer said the g irl was 16 y ear s old. The office rs asked about the g irl’s clothing,
to which Fa

rmer reportedly stated her mother did not mind. Both O’Ne al and Wil liams testified Fa

rmer stated she ha d lived with him and his mot her f or two y ear s. ¶ 6 When Offic er O’Ne al told Fa rmer they should g o t o t h e police station for f urther questioning to “ finish this up,” Farmer re sponded “Fuck this,” droppe d his shopping bag s, and ran. Offic er Wil liams y elled at Fa rmer to stop running three times, then g ave chase and

arr ested him afte r Fa

rmer ran into the door of a police car

. Following his arrest, Fa rmer and L .W. wer e taken to the police station, wher e Fa rmer contin u ed t o p ro claim L .W. was his cousin. After

lear ning of L .W.’s identityfrom the y outh divisi on, the police r eturne d L .W. to her mother. ¶ 7 During the cr o s s -e x am i n at i o n o f Of fi cer O’Ne al, defe nse counsel noted Fa rmer’ s statement that he had been living wit h L

. W

. for two y ear s did not tell the police anything about t heir relationship. Offic er O’Neal replied, “ Other than he is a li ar.” Def ense counsel also asked whether Fa

rmer’ s statements to a Detec tive Doy le would shed lig ht on the truth of the case. Of

fi ce r O’Neal replied that he did not know, beca use Detec tive Doy le was investigating whether Fa

rmer had sex with L .W., which was outside the scope of O’Ne al’s investigation. Def

ense counsel then asked whether the criminal complaint contained a rape char g e. Of

fice r O’N eal a dmitted there wa s no such cha rg e as of that day

. ¶ 8 During the cross-e x amination of Offic er Wil liams, de fense counsel asked him why people g ener ally run from the police. Offic er Wil liams responde d that sometimes it is out of fea r, but most of the time it is beca use they had done something wrong

. Def ense counsel then asked Offic er Wil liams if he chec ked to see whether Fa rmer’ s shopping bag s contained any stolen items. Office r W illiams replied that he had not. When def ense c ounsel attempted to ask Offic er Wil liams what a teena g e g irl dresse d like L .W. was likely to be doing for money , the trial judg e sustained the State’ s objection to the question. ¶ 9 The S tate rested i ts case

. The defense moved for a directed finding, which the trial court de nied. The de fenserested w ithout presenting any evidenc e or w itnesses. ¶ 10 During closing arg uments, defe nse counsel repe atedly stat ed that Fa rmer was “ not

a saint.” Def

ense counsel also sug g ested that Fa rmer may have been eng ag ed in some other type of wrong doing at the t ime of hi s arr est. Follo wi n g closing arg uments and is suance of jury instructions, the jury

deliberated and f

ound defe ndant g uilty

of false personation. ¶ 11 On February 6, 2003, the circ uit court sentenc ed defe ndant to the maxi mum 364 day s in the Cook County D ep artment of Correc tions, including eig ht months of day -for -day cre dit. On the same day
, Fa

rmer’ s counsel filed a posttrial motion for a new trial stating the State’s

-3-evidenc e failed to prove F arme r g uiltybey ond a re asonabledoubt.

¶ 12 On Octob er 21, 2008, the case returne d to the trial court’s docket for a hearing on Fa rmer’ s motion for a new trial. At that time, defe nse counsel explained he filed an orig inal motion for a new trial on the day of the initial verdic t, but asked to postpone the hearing so that he could obtain copies of a transcript from a hearing on a motion to suppress statements that took place prior to the trial. Counsel explained he attempted to secur e the transcripts for
y ear s befor e h e was informed the court reporter had died and the transcripts could not be located. The circ uit court denied defe ndant’s motion for a new trial on October 21, 2008. A timely notice of a

ppeal wa s filed on Novembe r 19, 2008.

¶ 13 DI SCUS SI ON ¶ 14 I . False Personation ¶ 15 Fa

rmer first arg ues that his conviction for false personation must be vacated, bec ause the statute violates the first and fourtee nth amendments to t h e Un i t ed States Constit ution. U.S. Const., amends. I
, XIV. Section 32–5.3 of the Criminal Code of 1961 (Code) provided : 1
“A person who falsely repr esents himself or herse lf t o b e the pare nt, leg al g uardian or other relation of a minor child to any public official, public employ ee, or elementa ry or seconda ry school employ ee or administrator commits a Class A misdemeano r.” 720 IL CS 5/ 32–5.3 (West 2002).
Fa rmer contends that the statute is unconstitutionally o v er b ro ad and criminalizes constitutionally protec ted speec h. Although defe ndant raises his constitutional claim for the first time in this a

ppeal, the constitutionalit y of a criminal statute g ener ally can be raised at any time. See In re J.W

. , 204 I l l

. 2 d 50, 61 (2003). The constitutionalit y of a statute is a question of law, which we revie w de novo

. People v. McCarty
, 223 I ll. 2d 109, 135 (2006). ¶ 16 In considering a challeng e to t h e co n s t itutionalit y of a statute, we beg in with the presumption that all statutes are constitutional. People v. W aid
, 221 I ll. 2d 464, 480 (2006). I f rea sonably p o s s i b l e, a statute must be construed so as to aff irm its constitutionalit y and validity

. Peop l e v. Grec o , 204 I ll. 2d 400, 406 (2003). The burden of rebutting that presumption is on the party challeng ing t h e l aw’s validity

. City of Chicago v. Pooh Bah Enterprises, Inc.
, 224 I ll. 2d 390, 406 (2006). Acc ording ly
, we will resolve any doubts as to the construction of a s t at u t e in favor of its validity

. People v. Dabbs
, 239 I ll. 2d 277, 292 (2010). ¶ 17 Gene rally
, a person to whom a statute may be constitutionally applied is not allowed
t o challeng e the statute solely on the g rounds that it could, in another context, be appl i ed unconstitutionally to another person. People v. W illiams
, 2 35 Ill. 2d 178, 199-200 (2009). Th e ex ce p t ion is in first amendment case s, wher e the conce rn that the constitutionally protec ted activity may be deter red or chilled allows a statute to be challeng ed as overbr oad. Virginia v. Hicks
, 539 U.S. 113, 119 (2003). Howe ver, this constitutional c oncer n must be

1 The statute ha s since bee n repe aled. SeePub. Act 96–1551 (ef f. Mar . 10, 2011).

-4-counter balanc ed with the “substantial social costs create d by the overbr eadth doctrine when it blocks application of a law to constitutionally unprotec ted speec h” or conduct. (Emphasis in orig inal.) Hicks
, 539 U.S. at 119. In order to maintain the appropriate balanc e, a statute’s

o v er brea dth must be “ substantial
, not only in an absolute sense, but also relati v e t o t h e statute’s plainly leg itimate swee p.” (Emphasis in orig inal.) Unit ed States v. W illiams
, 553 U.S. 285, 292 (2008). Invalidating a statute for overbr eadth is a strong s t ep , n o t t o be

casually undertaken by a court. W illiams
, 553 U.S. at 293 (and case s cited there in). Thus, a statute is deeme d overbr oad only if it: (1) criminalizes a substantial amount of p ro tected behavior
, relative to the law’s plainly leg itim at e s weep; and (2) is not susceptible to a limit ing constructi on that avoids constitutional problems. People v. Hill
, 333 I ll. App. 3d 783, 786 (2002). “F acial overbr eadth has not been invoked when a limit ing construction has been or could be plac ed on the c halleng ed statute.” Broadrick v. Oklahoma , 413 U.S. 601, 613 (1973). ¶ 18 When considering a claim of overbr eadth, we mus t f ir s t d etermine whether the statute inhibits conduct protec ted by the first amendment. Hill
, 333 I ll. App. 3d at 786. The fi rst amendment provides that “Con gre ss shall make no law *** abridg ing the fre edom of
speec h.” U

. S

. C o n s t

. , amend. I

. The parties do not dispute that the s tatute here “seek[s] to reg ulate ‘only spoken words.’ ” Broadrick
, 413 U.S. at 612 (quoting Gooding v. W ilson
, 405 U.S. 518, 520 (1972))

. Moreove r, the statute tar g ets words a bout a specific subject: family relationships t o minors. The statute is thus a content- based r eg ulation of speec h. ¶ 19 Content-based speec h restric tions ordinarily are s u b j ec t ed t o s t rict scrutiny . See United States v. Playboy Entertainment Group, Inc.
, 529 U.S. 803, 813 (2000). Howeve r,

an exception to the ordinary rule applies to “ce rtain well

- d e f in e d and narr owly limit ed classes of speec h, the preve n t i o n and punishment of which has never been thought to raise any Constit utional problem.” Chaplinsky v. New Hampshire
, 315 U.S. 568, 571-72 (1942). The first amendment does not include a fre edom to disreg ard these tradit i o n al ca t eg ories of unprotec ted spee ch. R.A.V. v. City of St. Paul , 505 U.S. 377, 383 (1992). ¶ 20 False statement s o f fa ct ar e o ft en at t he heart of the traditional cate g ories of unprotec ted speec h. E.g.
, Illinois ex rel. Madigan v. Telemarke ting Associates, Inc.
, 538 U.S. 600
, 6 1 2 (2 0 03) (“[T]he First Amendment does not shield fra ud.”); United States v. Dunnigan
, 507 U.S. 87, 96 (1993) (“[A] defe ndant’s rig ht to testify does not include a rig ht
to commit perjury .”); Virginia S ta t e Board of Pharmacy v. Virginia Citi zens Consumer Council, Inc.
, 425 U.S. 748, 771 (1976) (fal s e s t atements in advertising are unprotec ted); Ge rtz v. Robert W

elch, Inc.
, 418 U.S. 323, 340 (1974) (libel). “The First Amendmen t require s that we protec t some falsehood in order to protec t speec h that matters.” Gertz
, 418 U.S. at 341. Neve rtheless, the State has a compelling interest in safe g uarding minors; courts have sustained leg islation aimed at protec ting the phy s ic al and emotional well-be ing of y outh

even when the laws have ope rate d in the sensitive are a of c onstitut ionally protec ted rig hts, i ncluding the rig ht to fre e speec h. New Y ork v. Ferber
, 458 U.S. 747, 756-57 (1 9 8 2 ) (a n d

case s cited there in). ¶ 21 In this case , the statute criminalizes false repr esentations that a person is the pare nt, leg al g uardian or other relation of a minor child to various public officials or employ ees. On one hand, family

relationships are not ordinarily a matter of publ ic i ntere st or concern. On

-5-the other hand, as Fa rmer notes, many such false statements of this sort lack the element of private or public injury that acc ompanies traditionally unprotec ted cate g ories of speec h like perjury or fraud. A neig hbor may prete nd to be a relative believing he or she is protec ting a minor child from talking to an adult strang er, who turns out to be a plainclothes policeman

or school teac her. Young people may colloqu i ally ref er to their friends as “brothers” or “cousins” in situations that are entirely innocent, just as old family friends may ref er to their friends’ children as nephew s or niece s. Those in a charitable “B ig Br other” prog ram might innocently

ref er to their minor c harg es as “ littl e brothe rs.” ¶ 22 T h e S t at e ar gu es t h at t hese interests can be rec onciled by placing a limiting construction on the statute, requiring that the fa lse statement be g iven knowing ly and with the intent of dece iving the rele vant public official or employ ee. Fa rm er ci t es People v. Madrigal
, 241 I ll. 2d 463 (2011), in wh i ch t h e I llinois Supreme Court reje cted the State’s
reque st to rea d a mental state into a statute criminalizing innocent conduct under the rubric of identity theft. The supreme court applied the rule that a statute violates the d ue proce ss clause s of both the I llinois and United States Constit utions if it potentially subjects wholly innocent conduct to criminal penalty without requiring a culpable mental state bey ond mere knowledg e. Madrigal
, 241 I ll. 2d at 467. The identity theft statute at issue specifie d a mental
state of mere kn o wl ed ge, not criminal intent or knowledg e. Madrigal
, 241 I ll. 2d at 470. Thus, the supreme court could not substitut e a culpable mental state for mere knowledg e. In contra st, wherea statute does not specify a mental state i n the first instance , the court may

rea d a culpable mental state into the statute. See Madrigal
, 241 I ll. 2d at 474-75 (discussing People v . W

right , 194 I ll. 2d 1 (2000), and People v . Tolli ver , 147 I ll. 2d 397 (1992)). ¶ 23 Her e, the i s s u e i s fi rs t am en d m en t o v er b re ad th, not substantive due proc ess. Moreove r, section 32–5.3 of the Code does not specify a mental state and we are oblige d to consider a limit ing construction of the statute. Broadrick
, 413 U.S. at 613; Hill
, 333 I ll. App. 3d 783. The construction the State proposes advanc es the State’s int er es t i n protec ting minors, while limit ing the punishment of speec h to case s wher e a person knowing ly dece ives a publi c official or e mploy ee to f rustratethe oper ations of g overnme nt in the protection of

m i n o rs

. Such an intent is simil ar to that require d to prosec ute obstruction of justice fo r knowing ly furnishing false information to the police. See, e.g. , People v. Childs
, 272 I ll. App. 3d 787, 789-90 (1995) ; People v

. Gerde s , 173 I ll. App. 3d 1024, 1032 (1988). Given that limit ing c onstruction, section 32–5.3 of the Codeis not unconstitut ionally overbr oad. ¶ 24 W e n o t e t h e j u ry i n t h i s case rec eived no instruction ref lecting the l i m i t i n g construction to be place d on section 32–5.3 of the Code
, as defe nse counsel raised the constitutional issue for the first t i m e on appeal. Howeve r, err ors in jury instructions are harmless if it is shown that the trial’s result would not have been differ ent had the jury been
properly instructed. People v. Pomyk ala
, 203 I ll. 2d 198, 210 (2 0 0 3 ). “B eca use intent is a state of mind, it can rar ely be proved by direc t evidenc e” and can be shown by surrounding circ umstances. People v. W illiams
, 165 I ll. 2d 51, 6 4 (1 995). I n this case , Fa rmer not only
repe atedly lied to Offic er O’Ne al about his relationship with L .W., but also immediately fled the scene when Offic er O’Ne al sug g ested Fa rmer acc ompany him to the police station. Ba sed

on the rec ord befor e us, we do not be lieve the jury ’s verdic t w ould have been any differ ent had it been instructed reg arding the l imiti ng construction we have giv en t h e statute. Thus,

-6-any err or is harmless and this court need not r emand the c ase f or a ne w trial.

¶ 25 I I . Ineff ective A ssistance of Counsel ¶ 26 Fa rm er al s o cl ai m s h e was denied a fair trial beca use he was denied his six th an d fourtee nth amendment rig hts to the eff ective assistance of counsel. Ge n er all y , in order to show ineffe ctive assistance of counsel, a defe ndant must establish: (1 ) co u nsel’s
repr esentation fell below an objective standard of rea sonablene ss; and (2) counsel’s alleg ed defic ient perf

ormanc e prejudice d the defe nse. Strickland v. W ashington
, 466 U.S. 668, 687 (1984). We must show g rea t defe renc e to the attorney ’s decisions, g iven a strong presumption that an attorney has acte d adequately

. Strickland
, 466 U.S. at 689. A defe ndant
must overc ome the strong presumption the challeng ed action or inaction “mig ht have been the product of sound trial strateg y .” People v. Evan s , 1 86 I ll. 2d 83, 93 (1999) (and case s cited there in). Every eff

ort must “be made to eliminate the distorting eff ects of hindsight, to

rec onstruct the circ umstances of counsel’s challeng ed conduct, and to evaluate the conduct from counsel’s perspe ctive at the time.” Strickland
, 466 U.S. at 689. To satisfy the prejudice
prong of the Strickland test, a defe ndant must demonstrate a rea sonable probability that but for counsel’s defic ient perf ormanc e, the result of the proce eding would have been differ ent. Strickland
, 466 U.S. at 694. A “re asonable probability ” is a probability sufficie nt to undermine confide nce in the outcome of the proce eding s. Strickland
, 466 U.S. at 694. Thus, the prejudice component of Strickland entails more than an “outcome-de terminative test”; rathe r, the defe ndant must show that counsel’s defic ient perf ormanc e rende red the trial result unreliableor re ndere d the proc eeding fundame ntally unfair. People v . Richardson , 189 I ll. 2d 401, 411 (2000). I f a revie wing court finds that the defe ndant did not suffe r prejudice
, it need not decide whether counse l ’s p erformanc e was constitutionally defic ient. People v. Buss , 187 I ll. 2d 144, 213 (1999). ¶ 27 Fa

rmer arg ues that his trial counsel was ineffe ctive beca use he repe atedly stated that Fa rm er was “not a saint,” sug g ested that Fa rmer may have been eng ag ed in other crim es ( e.g. , retail theft or solicitation of prostitution), and elicited testimony that Fa rmer may have been under investigation for a felony sex crime. Fa rmer relies on People v. Phillips
, 227 I ll. App. 3d 581, 590 (1992), wher e counsel’s failure to object to hear say linking the defe ndant
to the cri m e was “deva stating to defe ndant’s case ” and war rante d a mistrial. In this case , counsel’s sug g estion that Fa rmer may h av e been involved in other crimes was larg ely intended to sug g est an explanation for Fa rmer’ s flig ht from police. The unsolicited testimony elicited from Offic er O’Ne al that Fa rmer might have been u n d er i n vestig ation for some felony sex crime may not have helped Fa rmer’ s case

. Yet, the testimony was not particula rly harmful either, as defe nse counsel t h en established no such out standing complaint ag ainst Fa rmer e x isted. ¶ 28 Fa

rmer also arg ues that cou nsel was ineffe ctive by emphasizing that Fa rmer ne ver claimed to be L .W.’s pare nt or g uardian, while ignor ing that the statute extends to any false
repr esentation of family relationship. Fa rmer claims counsel misapprehe nded the law and
g ave the jury no choice but to convict him. Fa rmer relies on People v. Torres
, 209 I ll. App. 3 d 3 14, 316 (1991), wher e counsel in an ag g ravated sexual assault case clea rl y

-7-misunderstood what qualified a s “pene tration” under the applicable statute and mistakenly

believed that the fac t that defe ndant’s family relation to the victim was a d ef en s e. In the

rec ord befor e us, counsel emphasized that Fa rm er n ever claimed to be L .W.’s pare nt or g uardian, but also arg ued that Fa rmer’ s claim that L .W. wa s his cousin could have been

mere ly colloquial. ¶ 29 In short, g iven the rec ord on appeal prese nted, we conclude that Fa rmer’ s counsel’s perf ormanc e did not rende r the trial result unreliable or the proce eding fundame ntally unfair. Rather, counsel’s perf

ormanc e ref

lected a trial strateg y suited to the e vidence ag ainst Fa rmer. Indeed, g iven the streng th of the evidenc e ag ainst Fa rmer in this case , we conclude there was

no rea sonabl e p ro b ability that counsel’s performance in this case aff ecte d the result of t he trial. Acc ording ly , Fa

rmer’ s arg ument fails.

¶ 30 CONCLUSI ON ¶ 31 I n s u m , we co n cl u d e t h at s ec tion 32–5.3 of the Criminal Code of 1961 was n o t unconstitutionally overbr oad in vio l at i o n o f the first and fourtee nth amendments to the United States C o n s t i t ution. We also conclude that Fa rmer did not rec eive ineffe ctive assistance of counsel at trial. For all of the afor ementioned rea so n s , t h e j udg ment of the circ uit court of Cook County is affirme d. ¶ 32 Affirmed.

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