ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

FREDDIE FARMER, Defendant-Appellant.

 District & No. First District, Third Division

Docket No. 1–08–3185

Filed June 1, 2011

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The constitutionality of section 32–5.3 of the Criminal Code, creating the

offense of falsely representing oneself to be the parent, legal guardian or

other relation of a minor child to a public employee, was upheld over

defendant’s contention that the statute was unconstitutionally overbroad

and criminalized constitutionally protected speech, and his contention

that his counsel was ineffective also was rejected, since the State has a

compelling interest in safeguarding minors, the State’s proposal to limit

the application of the statute to false statements given knowingly and

with the intent of deceiving the relevant public official or employee

advanced the State’s interest in protecting minors while limiting the

punishment of speech to cases where a person knowingly deceives a

public official or employee to frustrate the operations of government in

the protection of minors, and although defense counsel’s repeated

statements at trial that defendant was “not a saint” may have suggested

that defendant was involved in other criminal activities, it reflected a trial

strategysuited to the evidence against defendant, and given that evidence,

there was no reasonable probability that counsel’s performance affected

the trial’s result.
Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 02–1213446; the

Hon. Anthony A. Iosco, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Michael J. Pelletier, Patricia Unsinn, and Jessica Wynne Arizo, all of

State Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,

Annette Collins, Tasha-Marie Kelly, and Gino Betts, Jr., Assistant State’s

Attorneys, of counsel), for the People.

Panel JUSTICE STEELE delivered the judgment of the court, with opinion.

Presiding Justice Quinn and Justice Neville concurred in the judgment

and opinion.

OPINION

¶ 1 Following a jury trial in the circuit court of Cook County, defendant Freddie Farmer

was found guilty of falsely representing himself or herself to be the parent, legal guardian or

other relation of a minor child to a public employee, which in this case was a police officer

(720 ILCS 5/32–5.3 (West 2002)). Farmer was sentenced to 364 days in the Cook County

Department of Corrections. Farmer now appeals, arguing: (1) the false personation statute

violates the first and fourteenth amendments to the United States Constitution (U.S. Const.,

amends. I, XIV); and (2) he received ineffective assistance of counsel at trial. For the

following reasons, we reject both claims and affirm the judgment of the trial court.

¶ 2 BACKGROUND

¶ 3 The record on appeal discloses the following facts. At trial, Victoria C. testified that

her daughter, L.W., ran away in March 2002, when she was a 12-year-old. Victoria C. filed

a missing person report with the Chicago police department. The story was featured on the

local Channel 5 news and a police program. Victoria C. further testified she did not know

Farmer, she had not given him permission to care for her daughter, and he was not related

to her or her daughter.

¶ 4 Chicago police officer O’Neal testified that on June 1, 2002, at approximately 3 p.m.,

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he and Officer Clarence Williams were on routine foot patrol, in uniform, in an open area

shopping mall located on 63rd and Halsted Street. A store employee alerted the officers that

he saw a girl who was featured on Crime Watch as a missing person in the mall, and he

pointed her out to them. The girl, who was identified as L.W., was wearing a black spandex

halter-top, black spandex pants, high heels, and makeup on her face.

¶ 5 Officer O’Neal testified that he asked Farmer, who was walking with L.W., who she

was and Farmer responded, “Shanetta Thompson” or “Shanetta Tomson,” his 16-year-old

cousin. Officer Williams also testified Farmer said L.W. was his cousin, “Shauna Tompson,”

but denied Farmer said the girl was 16 years old. The officers asked about the girl’s clothing,

to which Farmer reportedly stated her mother did not mind. Both O’Neal and Williams

testified Farmer stated she had lived with him and his mother for two years.

¶ 6 When Officer O’Neal told Farmer they should go to the police station for further

questioning to “finish this up,” Farmer responded “Fuck this,” dropped his shopping bags,

and ran. Officer Williams yelled at Farmer to stop running three times, then gave chase and

arrested him after Farmer ran into the door of a police car. Following his arrest, Farmer and

L.W. were taken to the police station, where Farmer continued to proclaim L.W. was his

cousin. After learning of L.W.’s identity from the youth division, the police returned L.W.

to her mother.

¶ 7 During the cross-examination of Officer O’Neal, defense counsel noted Farmer’s

statement that he had been living with L.W. for two years did not tell the police anything

about their relationship. Officer O’Neal replied, “Other than he is a liar.” Defense counsel

also asked whether Farmer’s statements to a Detective Doyle would shed light on the truth

of the case. Officer O’Neal replied that he did not know, because Detective Doyle was

investigating whether Farmer had sex with L.W., which was outside the scope of O’Neal’s

investigation. Defense counsel then asked whether the criminal complaint contained a rape

charge. Officer O’Neal admitted there was no such charge as of that day.

¶ 8 During the cross-examination of Officer Williams, defense counsel asked him why

people generally run from the police. Officer Williams responded that sometimes it is out of

fear, but most of the time it is because they had done something wrong. Defense counsel then

asked Officer Williams if he checked to see whether Farmer’s shopping bags contained any

stolen items. Officer Williams replied that he had not. When defense counsel attempted to

ask Officer Williams what a teenage girl dressed like L.W. was likely to be doing for money,

the trial judge sustained the State’s objection to the question.

¶ 9 The State rested its case. The defense moved for a directed finding, which the trial

court denied. The defense rested without presenting any evidence or witnesses.

¶ 10 During closing arguments, defense counsel repeatedly stated that Farmer was “not

a saint.” Defense counsel also suggested that Farmer may have been engaged in some other

type of wrongdoing at the time of his arrest. Following closing arguments and issuance of

jury instructions, the jury deliberated and found defendant guilty of false personation.

¶ 11 On February 6, 2003, the circuit court sentenced defendant to the maximum 364 days

in the Cook CountyDepartment of Corrections, including eight months of day-for-daycredit.

On the same day, Farmer’s counsel filed a posttrial motion for a new trial stating the State’s

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evidence failed to prove Farmer guilty beyond a reasonable doubt.

¶ 12 On October 21, 2008, the case returned to the trial court’s docket for a hearing on

Farmer’s motion for a new trial. At that time, defense counsel explained he filed an original

motion for a new trial on the day of the initial verdict, 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 secure the transcripts for

years before he was informed the court reporter had died and the transcripts could not be

located. The circuit court denied defendant’s motion for a new trial on October 21, 2008. A

timely notice of appeal was filed on November 19, 2008.

¶ 13 DISCUSSION

¶ 14 I. False Personation

¶ 15 Farmer first argues that his conviction for false personation must be vacated, because

the statute violates the first and fourteenth amendments to the United States Constitution.

U.S. Const., amends. I, XIV. Section 32–5.3 of the Criminal Code of 1961 (Code) provided :

1

“A person who falsely represents himself or herself to be the parent, legal guardian or

other relation of a minor child to any public official, public employee, or elementary or

secondary school employee or administrator commits a Class A misdemeanor.” 720

ILCS 5/32–5.3 (West 2002).

Farmer contends that the statute is unconstitutionally overbroad and criminalizes

constitutionally protected speech. Although defendant raises his constitutional claim for the

first time in this appeal, the constitutionality of a criminal statute generally can be raised at

any time. See In re J.W., 204 Ill. 2d 50, 61 (2003). The constitutionality of a statute is a

question of law, which we review de novo. People v. McCarty, 223 Ill. 2d 109, 135 (2006).

¶ 16 In considering a challenge to the constitutionality of a statute, we begin with the

presumption that all statutes are constitutional. People v. Waid, 221 Ill. 2d 464, 480 (2006).

If reasonably possible, a statute must be construed so as to affirm its constitutionality and

validity. People v. Greco, 204 Ill. 2d 400, 406 (2003). The burden of rebutting that

presumption is on the party challenging the law’s validity. City of Chicago v. Pooh Bah

Enterprises, Inc., 224 Ill. 2d 390, 406 (2006). Accordingly, we will resolve any doubts as to

the construction of a statute in favor of its validity. People v. Dabbs, 239 Ill. 2d 277, 292

(2010).

¶ 17 Generally, a person to whom a statute may be constitutionally applied is not allowed

to challenge the statute solely on the grounds that it could, in another context, be applied

unconstitutionally to another person. People v. Williams, 235 Ill. 2d 178, 199-200 (2009).

The exception is in first amendment cases, where the concern that the constitutionally

protected activity may be deterred or chilled allows a statute to be challenged as overbroad.

Virginia v. Hicks, 539 U.S. 113, 119 (2003). However, this constitutional concern must be

1

 The statute has since been repealed. See Pub. Act 96–1551 (eff. Mar. 10, 2011).

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counterbalanced with the “substantial social costs created by the overbreadth doctrine when

it blocks application of a law to constitutionally unprotected speech” or conduct. (Emphasis

in original.) Hicks, 539 U.S. at 119. In order to maintain the appropriate balance, a statute’s

overbreadth must be “substantial, not only in an absolute sense, but also relative to the

statute’s plainly legitimate sweep.” (Emphasis in original.) United States v. Williams, 553

U.S. 285, 292 (2008). Invalidating a statute for overbreadth is a strong step, not to be

casually undertaken by a court. Williams, 553 U.S. at 293 (and cases cited therein). Thus, a

statute is deemed overbroad only if it: (1) criminalizes a substantial amount of protected

behavior, relative to the law’s plainly legitimate sweep; and (2) is not susceptible to a

limiting construction that avoids constitutional problems. People v. Hill, 333 Ill. App. 3d

783, 786 (2002). “Facial overbreadth has not been invoked when a limiting construction has

been or could be placed on the challenged statute.” Broadrick v. Oklahoma, 413 U.S. 601,

613 (1973).

¶ 18 When considering a claim of overbreadth, we must first determine whetherthe statute

inhibits conduct protected by the first amendment. Hill, 333 Ill. App. 3d at 786. The first

amendment provides that “Congress shall make no law *** abridging the freedom of

speech.” U.S. Const., amend. I. The parties do not dispute that the statute here “seek[s] to

regulate ‘only spoken words.’ ” Broadrick, 413 U.S. at 612 (quoting Gooding v. Wilson, 405

U.S. 518, 520 (1972)). Moreover, the statute targets words about a specific subject: family

relationships to minors. The statute is thus a content-based regulation of speech.

¶ 19 Content-based speech restrictions ordinarily are subjected to strict scrutiny. See

United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000). However,

an exception to the ordinaryrule applies to “certain well-defined and narrowlylimited classes

of speech, the prevention and punishment of which has never been thought to raise any

Constitutional problem.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). The

first amendment does not include a freedom to disregard these traditional categories of

unprotected speech. R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992).

¶ 20 False statements of fact are often at the heart of the traditional categories of

unprotected speech. E.g., Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S.

600, 612 (2003) (“[T]he First Amendment does not shield fraud.”); United States v.

Dunnigan, 507 U.S. 87, 96 (1993) (“[A] defendant’s right to testify does not include a right

to commit perjury.”); Virginia State Board of Pharmacy v. Virginia Citizens Consumer

Council, Inc., 425 U.S. 748, 771 (1976) (false statements in advertising are unprotected);

Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974) (libel). “The First Amendment

requires that we protect some falsehood in order to protect speech that matters.” Gertz, 418

U.S. at 341. Nevertheless, the State has a compelling interest in safeguarding minors; courts

have sustained legislation aimed at protecting the physical and emotional well-being of youth

even when the laws have operated in the sensitive area of constitutionally protected rights,

including the right to free speech. New York v. Ferber, 458 U.S. 747, 756-57 (1982) (and

cases cited therein).

¶ 21 In this case, the statute criminalizes false representations that a person is the parent,

legal guardian or other relation of a minor child to various public officials or employees. On

one hand, family relationships are not ordinarily a matter of public interest or concern. On

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the other hand, as Farmer notes, many such false statements of this sort lack the element of

private or public injury that accompanies traditionally unprotected categories of speech like

perjury or fraud. A neighbor may pretend to be a relative believing he or she is protecting a

minor child from talking to an adult stranger, who turns out to be a plainclothes policeman

or school teacher. Young people may colloquially refer to their friends as “brothers” or

“cousins” in situations that are entirely innocent, just as old family friends may refer to their

friends’ children as nephews or nieces. Those in a charitable “Big Brother” program might

innocently refer to their minor charges as “little brothers.”

¶ 22 The State argues that these interests can be reconciled by placing a limiting

construction on the statute, requiring that the false statement be given knowingly and with

the intent of deceiving the relevant public official or employee. Farmer cites People v.

Madrigal, 241 Ill. 2d 463 (2011), in which the Illinois Supreme Court rejected the State’s

request to read 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 due process

clauses of both the Illinois and United States Constitutions if it potentially subjects wholly

innocent conduct to criminal penalty without requiring a culpable mental state beyond mere

knowledge. Madrigal, 241 Ill. 2d at 467. The identity theft statute at issue specified a mental

state of mere knowledge, not criminal intent or knowledge. Madrigal, 241 Ill. 2d at 470.

Thus, the supreme court could not substitute a culpable mental state for mere knowledge. In

contrast, where a statute does not specify a mental state in the first instance, the court may

read a culpable mental state into the statute. See Madrigal, 241 Ill. 2d at 474-75 (discussing

People v. Wright, 194 Ill. 2d 1 (2000), and People v. Tolliver, 147 Ill. 2d 397 (1992)).

¶ 23 Here, the issue is first amendment overbreadth, not substantive due process.

Moreover, section 32–5.3 of the Code does not specify a mental state and we are obliged to

consider a limiting construction of the statute. Broadrick, 413 U.S. at 613; Hill, 333 Ill. App.

3d 783. The construction the State proposes advances the State’s interest in protecting

minors, while limiting the punishment of speech to cases where a person knowingly deceives

a public official or employee to frustrate the operations of government in the protection of

minors. Such an intent is similar to that required to prosecute obstruction of justice for

knowingly furnishing false information to the police. See, e.g., People v. Childs, 272 Ill.

App. 3d 787, 789-90 (1995); People v. Gerdes, 173 Ill. App. 3d 1024, 1032 (1988). Given

that limiting construction, section 32–5.3 of the Code is not unconstitutionally overbroad.

¶ 24 We note the jury in this case received no instruction reflecting the limiting

construction to be placed on section 32–5.3 of the Code, as defense counsel raised the

constitutional issue for the first time on appeal. However, errors in jury instructions are

harmless if it is shown that the trial’s result would not have been different had the jury been

properly instructed. People v. Pomykala, 203 Ill. 2d 198, 210 (2003). “Because intent is a

state of mind, it can rarely be proved by direct evidence” and can be shown by surrounding

circumstances. People v. Williams, 165 Ill. 2d 51, 64 (1995). In this case, Farmer not only

repeatedly lied to Officer O’Neal about his relationship with L.W., but also immediately fled

the scenewhen Officer O’Neal suggested Farmer accompanyhim to the police station. Based

on the record before us, we do not believe the jury’s verdict would have been any different

had it been instructed regarding the limiting construction we have given the statute. Thus,

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any error is harmless and this court need not remand the case for a new trial.

¶ 25 II. Ineffective Assistance of Counsel

¶ 26 Farmer also claims he was denied a fair trial because he was denied his sixth and

fourteenth amendment rights to the effective assistance of counsel. Generally, in order to

show ineffective assistance of counsel, a defendant must establish: (1) counsel’s

representation fell below an objective standard of reasonableness; and (2) counsel’s alleged

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687

(1984). We must show great deference to the attorney’s decisions, given a strong

presumption that an attorney has acted adequately. Strickland, 466 U.S. at 689. A defendant

must overcome the strong presumption the challenged action or inaction “might have been

the product of sound trial strategy.” People v. Evans, 186 Ill. 2d 83, 93 (1999) (and cases

cited therein). Every effort must “be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct

from counsel’s perspective at the time.” Strickland, 466 U.S. at 689. To satisfy the prejudice

prong of the Strickland test, a defendant must demonstrate a reasonable probability that but

for counsel’s deficient performance, the result of the proceeding would have been different.

Strickland, 466 U.S. at 694. A “reasonable probability” is a probability sufficient to

undermine confidence in the outcome of the proceedings. Strickland, 466 U.S. at 694. Thus,

the prejudice component of Strickland entails more than an “outcome-determinative test”;

rather, the defendant must show that counsel’s deficient performance rendered the trial result

unreliable or rendered the proceeding fundamentally unfair. People v. Richardson, 189 Ill.

2d 401, 411 (2000). If a reviewing court finds that the defendant did not suffer prejudice, it

need not decide whether counsel’s performance was constitutionally deficient. People v.

Buss, 187 Ill. 2d 144, 213 (1999).

¶ 27 Farmer argues that his trial counsel was ineffective because he repeatedly stated that

Farmer was “not a saint,” suggested that Farmer may have been engaged in other crimes

(e.g., retail theft or solicitation of prostitution), and elicited testimony that Farmer may have

been under investigation for a felony sex crime. Farmer relies on People v. Phillips, 227 Ill.

App. 3d 581, 590 (1992), where counsel’s failure to object to hearsay linking the defendant

to the crime was “devastating to defendant’s case” and warranted a mistrial. In this case,

counsel’s suggestion that Farmer may have been involved in other crimes was largely

intended to suggest an explanation for Farmer’s flight from police. The unsolicited testimony

elicited from Officer O’Neal that Farmer might have been under investigation for some

felony sex crime may not have helped Farmer’s case. Yet, the testimony was not particularly

harmful either, as defense counsel then established no such outstanding complaint against

Farmer existed.

¶ 28 Farmer also argues that counsel was ineffective by emphasizing that Farmer never

claimed to be L.W.’s parent or guardian, while ignoring that the statute extends to any false

representation of family relationship. Farmer claims counsel misapprehended the law and

gave the jury no choice but to convict him. Farmer relies on People v. Torres, 209 Ill. App.

3d 314, 316 (1991), where counsel in an aggravated sexual assault case clearly

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misunderstood what qualified as “penetration” under the applicable statute and mistakenly

believed that the fact that defendant’s family relation to the victim was a defense. In the

record before us, counsel emphasized that Farmer never claimed to be L.W.’s parent or

guardian, but also argued that Farmer’s claim that L.W. was his cousin could have been

merely colloquial.

¶ 29 In short, given the record on appeal presented, we conclude that Farmer’s counsel’s

performance did not render the trial result unreliable or the proceeding fundamentally unfair.

Rather, counsel’s performance reflected a trial strategysuited to the evidence against Farmer.

Indeed, given the strength of the evidence against Farmer in this case, we conclude there was

no reasonable probability that counsel’s performance in this case affected the result of the

trial. Accordingly, Farmer’s argument fails.

¶ 30 CONCLUSION

¶ 31 In sum, we conclude that section 32–5.3 of the Criminal Code of 1961 was not

unconstitutionally overbroad in violation of the first and fourteenth amendments to the

United States Constitution. We also conclude that Farmer did not receive ineffective

assistance of counsel at trial. For all of the aforementioned reasons, the judgment of the

circuit court of Cook County is affirmed.

¶ 32 Affirmed.

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