NO. 5-01-0932

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from the

							)	Circuit Court of

	Plaintiff-Appellee, 				)	Randolph County.  

							)

v.							)	No. 01-CF-107

							)

MICHAEL A. PETERSON, 			)	Honorable

							)	Jerry D. Flynn,William A. Schuwerk, William A., Jr., 

	Defendant-Appellant.			)	Judge, presiding.  

___________________________________________________________________________

	JUSTICE KUEHN delivered the opinion of the court:

	Michael A. Peterson has taken four brides.  None of them have ever wanted to stay

married to him for very long.  In 1996, his second wife, Carol, simply could not rid herself

of him without special help from the courts.  When he ignored an order of protection that

prohibited contact with Carol, repeatedly driving by her residence, Peterson was prosecuted

and convicted of violating the protective order.  He was fined and placed on conditional

discharge.  

	This case involves a different wife but presents a similar story.  Peterson's fourth wife,

Dawn, procured an order of protection prohibiting him from having any contact with her. 

Once again, Peterson ignored the court's authority.  This time his disregard for an order of

protection landed him in prison.   

	The evidence at the trial established the following facts.  

	Spurred by physical and mental abuse from her husband, Dawn Peterson sought court-

ordered protection under the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 et seq. (West 2000)).  A circuit judge entered a protective order on June 5, 2001, which, among other things, prohibited Peterson from harassing or stalking his wife.  Dawn was awarded

temporary exclusive possession of the marital residence located on the outskirts of Walsh,

Illinois, a little town that lies southwest of Sparta, Illinois.  Peterson was told by the court

that he was not to have any contact with his frightened spouse.  

	Peterson moved into the Sparta Motel.  Its location provided ample physical

separation to easily avoid future contact with Dawn.  Sparta was more than 10 miles

northeast of Walsh, and most of the larger southern Illinois communities that Peterson might

have reason to visit lay north of Sparta.  This was particularly true of Red Bud, Illinois.  It

could be easily reached by traveling northwest of Sparta on a state highway that went

directly to Red Bud.  That highway, Route 154, would take Peterson in the opposite direction

from his court-protected spouse's residence. 

	According to Peterson, Red Bud provided the nearest access to Amoco gasoline,

Peterson's fuel of choice.  On June 9, 2001, just four days after the protective order issued,

Peterson drove to Red Bud.  The Conoco station a few blocks from the Sparta Motel would

simply not do.

	Peterson's decision to drive more than 20 miles to replenish the source of power for

his 1996 Monte Carlo was rendered particularly suspicious by his course of travel.  Instead

of steering a course northwest to Red Bud on Route 154, he started out in the opposite

direction, driving south on Route 4, another state highway.  After driving several miles south,

he turned due west on Schuline Road.  Schuline Road is a county back road used to get from

Sparta to Walsh or Evansville, Illinois.  Several houses line the road, including the one that

Peterson used to live in–the one still occupied by his court-protected wife.  Peterson had to

pass the house on his way to Red Bud to purchase Amoco gasoline.  After passing the house,

he had to traverse the towns of Walsh and Evansville.  Ultimately his circuitous route of

travel to Red Bud took him to another state highway, Route 3.  He headed north on Route 3, and after driving several additional miles, he arrived in Red Bud and filled his gas tank. 

Upon his return home, he again spurned a shorter drive via Route 154 and traveled a path

that took him by his erstwhile abode.     

	Two days prior to this Red Bud excursion, and only two days after the protective

order issued, Peterson had the misfortune of deciding to do some banking at the precise

moment that Dawn, his court-protected spouse, was poised to exit her vehicle on the bank

parking lot.  According to Dawn, she sped off as Peterson approached her.  Peterson was

trying to have a word with her but was left standing on the lot talking to himself.  On June

9, 2001, the same day that Peterson journeyed to Red Bud for gasoline, Dawn received a

five-page letter in the mail.  Its words echoed refrains that she had heard before.  Peterson

wrote, again promising to make amends. 

	According to Dawn, Peterson drove by her house at least six times on June 9, 2001. 

The fifth time that Dawn saw him drive by, he saw her.  She was standing at the kitchen sink

giving their five-month-old baby a bath when he saw her at the kitchen window.  Peterson

brought his car to an abrupt halt, got out, and assumed a position across Schuline Road that

made him clearly visible to Dawn.  He gestured to her, waving his hands about, to assure

himself that he had her full attention.  Then, he braced his stance, placed his hands on his

hips, and glared at Dawn for well over a minute.  When Dawn went to report his presence

to the police, he left.  However, he returned again after dark.  Dawn saw him drive by at

around 9:30 p.m.  

	Peterson was still cruising roads in the vicinity of the home at 11 p.m., when he was

stopped by Shannon Wolff, a Randolph County deputy sheriff.  Deputy Wolff had received

the report from Dawn, and when he asked Peterson about the reported behavior, Peterson

admitted driving by but not to seeing or having any contact with his court-protected spouse. 

He explained that he had to use Schuline Road earlier in the day in order to buy Amoco gasoline in Red Bud.   

	Peterson denied that he had repeatedly driven by Dawn's house.  He also denied that

he had gotten out of his car.  He did admit that, by happenstance, he saw her at the bank a

few days earlier, but he denied that he had made any approach to engage in conversation.  

      	A Randolph County jury heard these facts and returned a guilty verdict on the charge of violating an order of protection.  The judge sentenced Peterson to a three-year prison term. 

This appeal ensued. 

	The State's information alleged that Peterson's violation of the order consisted of

harassment and stalking, and the jury was instructed that the State had to prove harassment and stalking beyond a reasonable doubt.

	The somewhat unique nature of the charge calls for an initial observation.  In most

cases of this kind, when a violation might fit an act of stalking as that term is defined under

the Criminal Code of 1961 (see 720 ILCS 5/12-7.3(a) (West 2000)), it will usually also

constitute an act of harassment as that term is defined under the Illinois Domestic Violence

Act of 1986 (see 750 ILCS 60/214(b)(1) (West 2000)).  Proof of harassment is all that is

required in order to establish the offense of violating an order of protection.  720 ILCS 5/12-

30 (West 2000).  The State need only prove that a defendant's conduct would cause

emotional distress to a reasonable person and that it, in fact, caused the court-protected

person such distress.  Where the conduct in violation of a protective order fits harassment and stalking, the State does not have to assume the added burden that an allegation of stalking would entail.  However, if it does, it should, as a matter of course, instruct the jury

on the meaning of the term "stalking."  Since the State must prove stalking as defined by the

Criminal Code of 1961 in order to prove a protective-order violation on that basis, it will

usually charge stalking as a separate offense, if the conduct in violation of a protective order

rises to the level of stalking.  

	Here, the State did not inform the jury of what conduct in which Peterson must have

been engaged under the Illinois Domestic Violence Act of 1986 in order to commit the

offense of stalking.  We are asked to overturn the conviction and order a new trial in light

of the trial judge's denial of a defense request that the jury be instructed on how stalking is

defined under the Criminal Code of 1961.  While we agree that the tendered instruction, or

one like it, should have been given, we do not believe that the shortcoming requires a

reversal or a new trial.  

	The jury was properly instructed on what constitutes harassment.  Because the jury

was told that it had to find that Peterson engaged in harassment and stalking, in order to

reach its verdict the jury must have found that the State proved harassment beyond a

reasonable doubt.  While the State charged Peterson with harassment and stalking and the

trial judge instructed the jury that the State had to prove both, the law only requires conduct

that constitutes harassment in order to establish the crime of violating a protective order. 

Hence, the State established the offense of violating an order of protection by proving to the

jury's satisfaction that Peterson had harassed his spouse.  The error in failing to properly

instruct the jury about the stalking allegation proved harmless to the outcome reached. 

	Because the issue of defining the term "stalking" might arise in this context again, we

examine the error in refusing the definition tendered. 

	Peterson's defense counsel submitted the following nonpattern jury instruction during

the jury-instruction conference: 	

		"A person stalks another person when he knowingly, on at least two separate

occasions, follows another person and/or places another person under surveillance

and transmits a threat to inflict, or places that person in reasonable apprehension of

receiving, immediate or future bodily harm, sexual assault, confinement, or restraint." 

	The instruction tracks the definition of stalking found in section 12-7.3(a) of the Criminal Code of 1961 (720 ILCS 5/12-7.3(a) (West 2000)).   

	The State's Attorney objected to the tendered instruction.  He argued that the

instruction defined the criminal offense of stalking, something that was unnecessary and

inappropriate where the charge was a violation of an order of protection.  He felt that the

term "stalking," used in the context of this case, was used in a general sense.  In effect, the

defense instruction would burden him with having to prove the criminal offense of stalking. 

The State's Attorney took the position that the legislatively defined crime of stalking was not

at issue in terms of the stalking allegation contained in the information.  

	The trial judge agreed, stating:  "[The tendered instruction] is not going to fit any type

of general definition.  So based on that alone, the Court's going to deny your Tendered

Instruction Number 1."   

	The crime of violating a protective order is set forth in section 12-30 of the Criminal

Code of 1961 (720 ILCS 5/12-30 (West 2000)), which reads, in pertinent part, "A person

commits violation of an order of protection if *** [h]e or she commits an act which was

prohibited by a court *** in violation of *** a remedy in a valid order of protection

authorized under paragraph[] (1) *** of subsection (b) of Section 214 of the Illinois

Domestic Violence Act of 1986[.]"  720 ILCS 5/12-30(a)(1)(i) (West 2000).  

	The Illinois Domestic Violence Act of 1986 provides for orders of protection, both

in content and in remedy.  The provision at issue in this case was section 214(b)(1), which

prohibits, among other things, "harassment *** or stalking of the petitioner, as defined in Section 12-7.3 of the Criminal Code of 1961."  (Emphasis added.)  750 ILCS 60/214(b)(1) (West 2000).

	Contrary to the reasoning employed by the trial judge in denying the instruction, the

conduct implicated by an allegation of stalking in a charge leveled under section 12-30 of the

Criminal Code of 1961 is not generic but rather is limited to conduct specifically defined in section 12-7.3 of the Criminal Code of 1961.  Without an instruction that tracks the statutory

definition, there is no way for a jury to properly measure an accused's conduct when the jury

decides whether a protective-order violation based upon the act of stalking has occurred.  In

order to properly weigh evidence attempting to establish that a protective order has been

violated by stalking the protected person, a jury needs to know that in order to stalk someone

in violation of a protective order, a defendant must have followed or placed the protected

person under surveillance on at least two occasions and either transmitted a threat of, or

placed that person in reasonable apprehension of receiving, immediate or future bodily harm,

sexual assault, confinement, or restraint. 

	The facts of this case provide a good example of why the absence of an instruction

on what constitutes stalking under the Criminal Code of 1961 could taint a verdict.  Had the

State alleged only the act of stalking or had it alleged harassment or stalking, the jury may well have returned a guilty verdict upon an erroneous factual determination that Peterson had

engaged in stalking when it actually believed that the stalking behavior had only occurred

on one occasion.  The jury could have easily believed that Peterson's behavior when he

realized that Dawn saw him constituted stalking conduct, while the more benign, silent

cruising past the home did not amount to stalking.  Moreover, a common perception of

stalking behavior could have been applied to all of Peterson's conduct with nary a thought

about whether that conduct transmitted a threat of, or placed Dawn in reasonable

apprehension of receiving, immediate or future bodily harm, sexual assault, confinement, or

restraint. 

	Since section 214(b)(1) of the Illinois Domestic Violence Act of 1986 clearly calls

for conduct defined under the Criminal Code of 1961 to form the basis of a stalking

allegation made in a charge brought under section 12-30 of the Criminal Code of 1961, the

content of that conduct needs to be explained to the jury in order to ensure accurate decision- making. 

	For the reasons stated, we affirm.  

	Affirmed.

	HOPKINS, P.J., and MAAG, J., concur.

	NO. 5-01-0932

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from the

							)	Circuit Court of

	Plaintiff-Appellee, 				)	Randolph County.  

							)

v.							)	No. 01-CF-107

							)

MICHAEL A. PETERSON, 			)	Honorable

							)	Jerry D. Flynn, 

	Defendant-Appellant.			)	Judge, presiding.  

___________________________________________________________________________

Opinion Filed:          KJaJanuary 21, 2003

___________________________________________________________________________

Justices:	Honorable Clyde L. Kuehn, J.

	Honorable Terrence J. Hopkins, P.J.

	Honorable Gordon E. Maag, J.

	Concur

___________________________________________________________________________

Attorneys	Daniel M. Kirwan, Deputy Defender, Paige Clark Strawn, Assistant

for	Defender, Office of the State Appellate Defender, Fifth Judicial 

Appellant	District, 730 E. Ill. Hwy. 15, P.O. Box 2430, Mt. Vernon, IL 62864;

	Assisted by Jamie L. Eastwood, Third Year Law Student, Southern

	Illinois University School of Law, Carbondale, IL 62901

___________________________________________________________________________

Attorneys	Hon. Darrell Williamson, State's Attorney, Randolph County 

for	Courthouse, Chester, IL  62223; Norbert J. Goetten, Director, 

Appellee	Stephen E. Norris, Deputy Director, Sharon Shanahan, Contract

	Attorney, Office of the State's Attorneys Appellate Prosecutor, 

	730 E. Ill. Hwy. 15, P.O. Box 2249, Mt. Vernon, IL  62864

___________________________________________________________________________