People v. Leib

2022 IL 126645

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 126645)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DONALD LEIB, Appellant.

Opinion filed June 16, 2022.

JUSTICE OVERSTREET delivered the judgment of the court, with opinion.

Justices Garman, Theis, Michael J. Burke, and Carter concurred in the judgment

and opinion.

Chief Justice Anne M. Burke dissented, with opinion, joined by Justice Neville.

OPINION

¶1 Defendant, Donald Leib, was charged in the circuit court of Cook County with

being a child sex offender in a school zone in violation of section 11-9.3(a) of the

Criminal Code of 2012 (Code). 720 ILCS 5/11-9.3(a) (West 2014). Following a

bench trial, the circuit court found defendant guilty and sentenced him to one year

in prison. He appealed, arguing that he was not proven guilty beyond a reasonable

doubt because the State failed to establish that he was on “real property comprising

any school” (see id.). In the alternative, defendant argued that, even if the property

at issue was properly considered “real property comprising any school,” the State

failed to establish that defendant knew he was on such property. The appellate court

affirmed (2020 IL App (1st) 170837-U), and we allowed defendant’s petition for

leave to appeal. Ill. S. Ct. R. 315 (eff. Oct. 1, 2020). For the following reasons, we

affirm the appellate court’s judgment.

¶2 BACKGROUND

¶3 In September 2015, the State charged defendant with knowingly being present

on real property comprising any school when persons under the age of 18 are

present in the building or on the grounds. See 720 ILCS 5/11-9.3(a) (West 2014).

Defendant executed a jury trial waiver, and a bench trial was held before the circuit

court of Cook County on December 5, 2016.

¶4 At defendant’s trial, the pastor of Queen of Martyrs Parish, Reverend Edward

Mikolajczyk, testified for the State regarding the general layout of the parish’s

property. He testified that the parish includes a church at 103rd Street and Central

Park Avenue, a school with a connected gym building at 3550 West 103rd Street,

and a rectory at 10233 Central Park Avenue. He further testified that the parish

owns a parking lot (the St. Louis Avenue parking lot), which is located at 103rd

Street and St. Louis Avenue, across the street adjacent to the gym. Reverend

Mikolajczyk acknowledged that the school’s name is not displayed on the gym

building but testified that the St. Louis Avenue parking lot, although located across

the street from the gym building, is school property.

¶5 Reverend Mikolajczyk also testified that the parish was hosting an annual

festival between September 24 and September 26, 2015. He stated that the festival,

which included a carnival with rides for children in the St. Louis Avenue parking

lot, was a combined fundraiser for the parish church and school. Reverend

Mikolajczyk testified that the festival’s flyer advertised the event to be “under [the]

auspices of Queen of Martyrs” and that, although the flyer did not refer directly to

the school, “people underst[oo]d that as being the parish and the school fundraiser.”

-2-

¶6 Defense counsel then showed Reverend Mikolajczyk several photographs of

the buildings comprising the parish complex, which were admitted into evidence.

Reverend Mikolajczyk identified the grounds of the parish and the school, a parking

lot immediately behind the school, and the St. Louis Avenue parking lot, which is

across St. Louis Avenue from the gymnasium. He acknowledged that the

gymnasium building contained lettering identifying it as “Queen of Martyrs John

Vitha Hall” and did not contain any lettering or markings indicating that it is a

gymnasium or part of a school.

¶7 Reverend Mikolajczyk identified a photograph of a sign located in a corner of

the St. Louis Avenue parking lot, which reads “Queen of Martyrs Bingo” and gives

the information regarding when bingo is held. He then testified that bingo is held

in the gymnasium building on Thursday evenings and children are not invited.

Finally, he testified that, while a third party would need to ask permission from the

church to use the parking lot, the school would not need permission from the church

because “the church and the school are synonymous so if there’s something that

needs to be used by the school and it [a]ffects the parking lot *** the church would

take care of that.”

¶8 Kathleen Tomaszewski testified that in 2015 she was the principal of Queen of

Martyrs School, which served pre-kindergarten through eighth grade. She testified

that, to her knowledge, the festival was a fundraiser for the school and parish and

consisted of a carnival, games, food, entertainment, and raffle. The carnival and

rides for the younger children were in the St. Louis Avenue parking lot, and the

street between the St. Louis Avenue parking lot and the gymnasium was blocked

off as well for the festival. Other parts of the festival were in the alley between the

school building/gymnasium and a parish convent, leading to the parking lot directly

behind the school. All the festival areas were thus open and connected to each other.

Ms. Tomaszewski testified that she did not know defendant, he was not the parent

or guardian of a student, and he was not given permission to come to the school.

¶9 During cross-examination, Tomaszewski acknowledged that the festival was

open to the public, its proceeds supported the school and church, and the flyer

advertising “Queen of Martyrs Fest” did not mention the school. She noted,

however, that the flyer stated there were “children[’]s games in the St. Joe’s room,”

which she testified is located inside the school. She testified that, while the sign in

-3-

the St. Louis Avenue parking lot advertising bingo does not mention the school, the

church gives some of the bingo proceeds to the school. Tomaszewski further

testified that she told a defense investigator in August 2016 that the school did not

then use the St. Louis Avenue parking lot for recess, only for student drop off and

pickup, parking for athletic events, scout meetings, and car washes. She stated that

she did not believe there was a sign indicating that it was the lot where children

were dropped off. In fact, she testified that, other than the bingo sign, there was no

other signage on the lot that would indicate that it is school property.

¶ 10 Defendant’s neighbor, Jeanne Cassidy, testified for the State that on the evening

of September 26, 2015, she attended the annual Queen of Martyrs Fest and observed

defendant standing in front of a carnival ride in the St. Louis Avenue parking lot.

Knowing defendant to be a registered sex offender, Cassidy informed a uniformed

police officer who was attending the festival of defendant’s presence and showed

the officer a photograph of defendant on her phone. Cassidy watched the officer

escort defendant out of the festival, and later that evening, Cassidy filed a police

report. Cassidy testified that when she informed defendant the next morning that

she had filed the report, he responded that he “understood what [her] concerns

were.” She testified on cross-examination that, although she is not a parishioner of

the church, she identified the carnival as “the school carnival.” She admitted,

however, that on direct examination she had identified it as “the Queen of Martyrs

Parish Carnival.” Finally, she testified that she never saw defendant on the side of

St. Louis Avenue on which the gymnasium is located.

¶ 11 Chicago police officer Daniel McGreal testified that he attended the Queen of

Martyrs Fest to see his family during his shift that evening. Officer McGreal

described the event as a carnival held by the school, Queen of Martyrs, and the

church that is located on that corner, which extended through the back of the school

into a parking lot in the back on St. Louis Avenue. He testified that there were other

rides for kids behind the gymnasium and the school “and then you walk through a

door that goes through the school to the back parking lot,” where there were bands

and food vendors.

¶ 12 Officer McGreal stated that, as he was walking through the St. Louis Avenue

parking lot, Jeanne Cassidy approached and notified him that defendant was at the

festival. Eventually, Officer McGreal confronted defendant, requested

-4-

identification, and asked defendant to walk to his squad car while he ran

defendant’s information. Officer McGreal told defendant that “he shouldn’t be

here, and [defendant] agreed” and left without incident.

¶ 13 Following Officer McGreal’s testimony, the parties stipulated that defendant

was convicted in 2007 of child abduction pursuant to section 10-5(b)(10) of the

Code (720 ILCS 5/10-5(b)(10) (West 2006)), for attempting to lure a child under

the age of 16 years into a vehicle without parental consent. A certified statement of

defendant’s conviction, from the circuit court of Cook County, was admitted into

evidence.

¶ 14 After the State rested, defendant filed a motion for a directed verdict, arguing

that the State had not established beyond a reasonable doubt that defendant knew

the St. Louis Avenue parking lot is “real property comprising any school,” when

“for all appearances” the parking lot is church property. Defense counsel argued

that the St. Louis Avenue parking lot “at best” may have been used by students but

that “dual usage” did not suggest that the lot is school property. The State responded

that the festival was a school fundraiser on property used for school functions. The

circuit court denied the motion.

¶ 15 Thereafter, defendant called Robert Pellegrini, chairperson of the Queen of

Martyrs Fest planning committee and a parishioner of 47 years. Pellegrini identified

a photograph of the St. Louis parking lot with the bingo sign on the corner.

Pellegrini acknowledged that the flyer did not state that the festival was for a

“school purpose” and described the St. Louis Avenue parking lot as the “school,

church, parish parking lot.”

¶ 16 Defendant’s brother, Robert, testified that he invited defendant to attend the

festival with him and his family. A parishioner of Queen of Martyrs for seven years,

Robert testified that he believed the St. Louis Avenue parking lot is “part of the

church” and “not school property.” Robert testified that he was aware that his

brother is not supposed to be around children in a school area and claimed that he

would not have brought defendant if he did not believe the festival was a church

function and on church property.

¶ 17 Irene Ahern Smith, the business manager at Queen of Martyrs Parish for 20

years, similarly testified that the St. Louis Avenue parking lot where the carnival

-5-

was held is owned by the Queen of Martyrs Parish and that “[y]ou can’t really

differentiate between the parish and the church or the church and the school because

the Federal Government identifies us under one Federal ID number. *** We’re all

one Federal ID number.”

¶ 18 Defendant also presented the stipulated testimony of Evergreen Park detective

Anthony Signorelli that his police report of the offense described the “place of

incident” as a “church, synagogue, or *** temple.” The defense also moved to

admit its exhibits, including the photographs of the parish complex, into evidence,

which the circuit court permitted.

¶ 19 The circuit court found defendant guilty of being a child sex offender

knowingly present on real property comprising any school. 720 ILCS 5/11-

9.3 (West 2014). The circuit court noted that, although the defense theory of the

case was that a difference existed between school and church property, Reverend

Mikolajczyk was “pretty clear” that it was “all one.” The circuit court also noted

that the title of section 11-9.3 of the Code included the phrase “[p]resence within

[a] school zone by a child sex offender” (see id.) and that testimony established St.

Louis Avenue was blocked off for the festival, which to the circuit court meant that

the St. Louis Avenue parking lot was part of the school zone for the day.

¶ 20 Defendant filed a posttrial motion requesting a new trial, in which he argued

that the circuit court improperly found the word “zone” important, when that word

was only mentioned in the title of the statute, not the section under which he was

charged and convicted. Defendant also argued that the circuit court improperly

focused on what he “should have known,” rather than what he knew. The circuit

court denied defendant’s motion. After a sentencing hearing, the circuit court

sentenced defendant to 12 months in prison.

¶ 21 On appeal, defendant argued his conviction should be reversed because the

State did not prove beyond a reasonable doubt that the St. Louis Avenue parking

lot is “real property comprising any school.” In the alternative, he argued that, if

the St. Louis Avenue parking lot constituted school property within the meaning of

the statute, the State nonetheless failed to prove his knowledge beyond a reasonable

doubt.

-6-

¶ 22 In a split decision, the appellate court affirmed. 2020 IL App (1st) 170837-U.

As a matter of law, the appellate court found that, because the Code’s “definition

of school includes its grounds, i.e., the area around and belonging to school

buildings,” “the parking lot of a school would qualify as part of the school grounds”

and, thus, as “ ‘real property comprising any school.’ ” Id. ¶ 26. The majority

further rejected defendant’s argument that real property comprising any school

must be contiguous with the school (i.e., not separated by a public street), reasoning

that defendant’s interpretation runs “counter to [both] the statute’s intent[ ] to

prevent the presence of child sex offenders on school grounds where children

congregate” and “the reality of urban school campuses.” Id. ¶ 27. The majority then

found that, “taking the evidence in the light most favorable to the State, a rational

trier of fact could have found that the St. Louis [Avenue] parking lot qualified” as

school property: among other things, the “evidence established that it was used for

student dropoff and pickup, recess, and parking for athletic events, scout meetings,

and car washes.” Id. ¶ 28.

¶ 23 As to the knowledge element of section 11-9.3(a), the majority held that “a

rational trier of fact could have found that defendant knew that he was present on

real property comprising a school.” Id. ¶ 31. The majority based its reasoning on

multiple witnesses testifying that the school and the church were a single entity,

that the festival’s purpose was to raise funds for a parish that included a parochial

elementary school, and that “ ‘hundreds’ of children were present.” Id.

¶ 24 Presiding Justice Mikva dissented, arguing that, although the parking lot where

the festival occurred was part of the grounds of the school and that defendant was

prohibited from being there under section 11-9.3(a), the State failed to prove

beyond a reasonable doubt that defendant knew he was on real property comprising

any school. Id. ¶¶ 38-46 (Mikva, P.J., dissenting). We granted defendant’s petition

for leave to appeal. See Ill. S. Ct. R. 315 (eff. Oct. 1, 2019).

¶ 25 ANALYSIS

¶ 26 On appeal, this court is asked to resolve two issues: (1) whether the St. Louis

Avenue parking lot is properly considered “real property comprising any school”

within the meaning of section 11-9.3(a) of the Code (720 ILCS 5/11-9.3(a) (West

2014)) and, (2) if so, whether the evidence is sufficient to prove that defendant was

-7-

present on the St. Louis Avenue parking lot knowing that it was “real property

comprising any school” on the evening in question. We address these issues in turn.

¶ 27 “Real Property Comprising Any School”

¶ 28 The parties agree that the issue of whether property constitutes “real property

comprising any school” for the purposes of section 11-9.3(a) of the Code (id.) is a

question of first impression in Illinois. 1 Issues of statutory construction are

questions of law subject to de novo review. In re Jarquan B., 2017 IL 121483, ¶ 21.

The primary objective of statutory interpretation is to ascertain and give effect to

the intent of our legislature. Id. ¶ 22. This inquiry begins with examining the plain

and ordinary meaning of the statutory language, which is the surest and most

reliable indicator of legislative intent. Id. We construe the statute as a whole and

afford the language of the statute its plain and ordinary meaning. People v. Legoo,

2020 IL 124965, ¶ 14. Where that language is clear and unambiguous, we must

apply the statute without further aids of statutory construction. Id. Thus, we begin

our analysis with the language of section 11-9.3(a) of the Code, which provides, in

relevant part, as follows:

“It is unlawful for a child sex offender to knowingly be present in any school

building, on real property comprising any school, or in any conveyance owned,

leased, or contracted by a school to transport students to or from school or a

school related activity when persons under the age of 18 are present in the

building, on the grounds or in the conveyance ***.” (Emphases added.) 720

ILCS 5/11-9.3(a) (West 2014).

¶ 29 Defendant argues that the St. Louis Avenue parking lot does not constitute “real

property comprising any school” because it is separated from the school building

and connected gymnasium building by a public street and, thus, is not contiguous

with the school buildings. In support of his argument, defendant cites three cases

from other jurisdictions. Of course, while this court is open to consideration of such

1

We note that while this case was on appeal before this court the Appellate Court, Second

District, found that a high school field house parking lot was “real property comprising any school”

for purposes of section 11-9.3(a) of the Code (720 ILCS 5/11.9.3(a) (West 2018)). People v. Lowe,

2022 IL App (2d) 190981, ¶ 1.

-8-

cases to benefit from any wisdom that may be contained therein, we are not bound

by those decisions insofar as their applicability is argued on issues relating solely

to state law. Sundance Homes, Inc. v. County of Du Page, 195 Ill. 2d. 257, 276

(2001). With these principles in mind, we turn to these three cases.

¶ 30 In two of the cases cited by defendant, courts in other states found that property

that was contiguous to the school did constitute “property comprising any school”

for the purposes of those states’ statutes, which prohibited certain activities within

1000 feet of such property. See Commonwealth v. Paige, 768 N.E.2d 572, 573-74

(Mass. App. Ct. 2002); State v. Peterson, 490 N.W.2d 53, 53 (Iowa 1992).

However, we note that a holding that contiguous property does qualify as “property

comprising any school” is not tantamount to a holding that property that is not

contiguous cannot qualify as “property comprising any school.” Accordingly, we

find these cases to be of little value in evaluating the case before us.

¶ 31 In the third case cited by defendant, a Florida appellate court found, with little

analysis, that “an overflow parking lot owned by a school” (but separated from it

by a soccer field) was not “property comprising any school” under Florida law

prohibiting the purchase of cocaine within 1000 feet of such property. Stamps v.

State, 620 So. 2d 1033, 1033 (Fla. Dist. Ct. App. 1993). In so holding, the court

reasoned that the terms “own” and “comprise” are not synonymous and that the rule

of lenity applied. For the following reasons, we find Stamps to be unpersuasive to

our analysis of section 11-9.3 of the Code.

¶ 32 While section 11-9.3(c)(4) of the Code (720 ILCS 5/11-9.3(d)(15) (West 2014))

defines the term “school” as “a public or private preschool or elementary or

secondary school,” the phrase “real property comprising any school” is undefined

in the statute. In this situation, we may look to the dictionary to discern an undefined

term’s plain and ordinary meaning. Cooke v. Illinois State Board of Elections, 2021

IL 125386, ¶ 78. In doing so, we note that the plain meaning of the word

“comprising” is not synonymous with “contiguous.” For property to be

“contiguous” with a school, it must be “touching along a boundary or at a point.”

Merriam Webster Online Dictionary, https://www.merriam-webster.com/

dictionary/contiguous (last visited Apr. 26, 2022) [https://perma.cc/UY3J-TQZS].

In contrast, property can be “comprising” a school in multiple situations, as

“comprising” has multiple meanings. See Merriam Webster Online Dictionary,

-9-

https://www.merriam-webster.com/dictionary/comprise (last visited Apr. 26, 2022)

[https://perma.cc/DX7W-TWML]. Under these definitions, property can be

“comprising” a school if (1) it is “made up of” the school, (2) it constitutes the

school, or (3) it is “include[d] especially within a particular scope” of the school.

Id. Thus, there is nothing in the plain language of the statute that requires that

property be contiguous with the school for it to be within the scope of the statute’s

requirements.

¶ 33 In interpreting a statute, each word, clause, and sentence must be given a

reasonable construction, if possible. See Slepicka v. Illinois Department of Public

Health, 2014 IL 116927, ¶ 14. We agree with the State that, by providing that a sex

offender is prohibited from being present on “real property comprising any school”

when children are present “on the grounds,” the legislature intended that these terms

refer to the same area. Any other construction would defy logic. The applicable

definitions of the term “grounds” include (1) “an area used for a particular purpose”

and (2) an “area around and belonging to a house or other building.” Merriam

Webster Online Dictionary, https://www.merriam-webster.com/dictionary/grounds

(last visited Apr. 26, 2022) [https://perma.cc/EQ5P-E5HL].

¶ 34 Here, there is evidence that the St. Louis Avenue parking lot is used for school

purposes and is owned by the parish, which owned the church and school. In

addition, there is evidence that the church and school were connected to each other

and considered to be synonymous. Accordingly, we find that the St. Louis Avenue

parking lot is “real property comprising any school” for purposes of section 11-

9.3(a) of the Code. 720 ILCS 5/11-9.3(a) (West 2014). Having determined that the

St. Louis Avenue parking lot is a prohibited location for a sex offender pursuant to

section 11-9.3(a), we next consider whether the evidence was sufficient to support

defendant’s conviction.

¶ 35 Sufficiency of the Evidence

¶ 36 In reviewing the sufficiency of the evidence in a criminal case, our inquiry is

whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. People v. Brand, 2021 IL 125945, ¶ 58. It is the

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the

- 10 -

evidence, and to draw reasonable inferences from basic facts to ultimate facts.

People v. Siguenza-Brito, 235 Ill. 2d 213, 224 (2009). Regardless of whether

defendant received a bench or jury trial, a criminal conviction will not be set aside

unless the evidence is so improbable or unsatisfactory as to create a reasonable

doubt of defendant’s guilt. Id. at 225.

¶ 37 Here, defendant argues that the evidence was insufficient to convict him

because there was no evidence that, by attending the carnival on the St. Louis

Avenue parking lot, he was “knowingly” on “property comprising any school.”

Pursuant to section 4-5 of the Code (720 ILCS 5/4-5 (West 2014)) a person acts

knowingly when he is consciously aware that the circumstances described by the

statute defining the offense exist. Moreover, knowledge of a material fact includes

awareness of the substantial probability that the fact exists. Id. Thus, if there is

circumstantial evidence in the record from which a reasonable fact-finder could

find that defendant had an awareness of the substantial probability that the St. Louis

Avenue parking lot was part of the grounds of the Queen of Martyrs Parish school,

then we will not disturb the circuit court’s judgment. Knowledge is often proven by

circumstantial evidence rather than direct proof because it is the mental element of

an offense and, as such, is rarely proven by direct evidence. People v. Jasoni, 2012

IL App (2d) 110217, ¶ 20 (citing People v. Faginkrantz, 21 Ill. 2d 75, 80 (1960)).

An admission by a defendant is not required for the trier of fact to conclude that a

defendant had knowledge of something. Id.

¶ 38 With these principles in mind, we review the evidence of record to determine

whether circumstantial evidence exists that supports a reasonable inference that

defendant had an awareness of the substantial probability that the St. Louis Avenue

parking lot is part of the grounds of the Queen of Martyrs Parish school. In so doing,

we find such evidence in the record. The Queen of Martyrs Parish has a large

campus consisting of a church, school, and gymnasium. Defendant’s brother had

been a parishioner there for seven years, and while he testified that he thought the

St. Louis Avenue parking lot is “church property” and not “school property,” it is

within the circuit court’s province to determine the credibility of that testimony.

The reverend testified that people considered the church and school to be

synonymous, and both Officer McGreal and Ms. Cassidy, who were not

parishioners, testified consistently with that notion, that they believed the festival

to be a school function. In addition, the St. Louis Avenue parking lot is located

- 11 -

closer to the school and gymnasium than it is to the church, which is on the opposite

side.

¶ 39 The layout of the festival itself also lends support to the proposition that

defendant was aware of a substantial probability that the St. Louis Avenue parking

lot is located on school grounds. There were children’s rides in that parking lot, and

there is evidence that the children’s rides continued across the street, which had

been blocked off for the festival, to the alley behind the gymnasium and school and

that the school was open to where one could walk through to the back of the school,

where there was music and food vendors. In fact, there is testimony in the record

that all these areas of the festival were open and connected to each other. While the

evidence showed that defendant stayed in the St. Louis Avenue parking lot, by the

maps in evidence it can be inferred that he would have been able to see that the

rides continued across the street and behind the gymnasium and school.

¶ 40 Finally, there is evidence of defendant’s conduct that a reasonable fact-finder

could find to support the proposition that he was aware of the substantial probability

that he was present on school grounds. When Officer McGreal told defendant that

he should not be there, defendant agreed and left without protest. Also, when Ms.

Cassidy informed defendant the next morning that she had filed a police report, he

responded that he understood what her concerns were. While there is also evidence

in the record to suggest that at least some parishioners and members of the public

understood the St. Louis Avenue parking lot to be “church property,” we will not

substitute our judgment for that of the circuit court on issues involving the weight

of the evidence or the credibility of witnesses. See Siguenza-Brito, 235 Ill. 2d at

224-25. For these reasons, we find that the evidence presented in the bench trial is

not so improbable or unsatisfactory as to create a reasonable doubt of defendant’s

awareness of the substantial probability that he was on the grounds of the

St. Martyrs Parish school when he attended the festival on September 26, 2015.

¶ 41 CONCLUSION

¶ 42 For the foregoing reasons, we affirm the decision of the appellate court, which

affirmed defendant’s conviction for a violation of section 11-9.3(a) of the Code

(720 ILCS 5/11-9.3(a) (West 2014)).

- 12 -

¶ 43 Judgments affirmed.

¶ 44 CHIEF JUSTICE ANNE M. BURKE, dissenting:

¶ 45 I agree with the majority that a rational trier of fact could have found, viewing

the evidence in the light most favorable to the State, that the parking lot where

defendant was present constituted “real property comprising any school” (720 ILCS

5/11-9.3(a) (West 2014)). I part ways with the majority on its second holding—that

the trial evidence was sufficient to prove beyond a reasonable doubt that defendant

was “knowingly” present on real property comprising a school when persons under

the age of 18 were present. Id. None of the evidence the majority cites is relevant

or probative of the knowledge element of the offense. The complete lack of

evidence at trial that defendant either knew or was aware of the substantial

probability that the St. Louis Avenue parking lot was school property is fatal to the

prosecution’s case. For this reason, I respectfully dissent.

¶ 46 ANALYSIS

¶ 47 Defendant was charged with, and convicted of, violating section 11-9.3(a) of

the Criminal Code of 2012, which provides: “It is unlawful for a child sex offender

to knowingly be present *** on real property comprising any school *** when

persons under the age of 18 are present *** on the grounds ***.” Id.

¶ 48 At trial, defendant’s brother, Robert Leib, testified that he invited defendant to

attend the “Queen of Martyrs Fest” with Robert’s family on Saturday, September

26, 2015. On that date, at approximately 8 p.m., Robert; defendant; and Robert’s

son, daughter, and grandson parked one block away from the fest and walked to a

parking lot containing carnival rides and games. The parking lot was at the

northeast corner of 103rd Street and St. Louis Avenue in Evergreen Park, across

the street from the Queen of Martyrs Parish hall, church, and school. A sign posted

at the corner of the parking lot advertised bingo and raffles on Thursday evenings

for the Queen of Martyrs Parish. Witness testimony was uniform that the bingo sign

was the only sign in the parking lot and there were no other signs indicating what

the property was used for or who owned the property.

- 13 -

¶ 49 Robert testified that he and defendant went to buy tickets at a ticket booth

because his grandson wanted to ride a roller coaster. They then met Robert’s

daughter and grandson in front of the roller coaster. Shortly afterward, a police

officer approached them and asked defendant whether he was a sex offender. The

officer then asked them to go with him to his police vehicle across the street. Robert

testified that he had been a parishioner at Queen of Martyrs Parish for seven years.

He stated he was aware of his brother’s sex offender restrictions and would not

have invited him if he did not believe the fest was a church function on church

property.

¶ 50 One of defendant’s neighbors, Jeanne Cassidy, was at the fest when she saw

defendant in the parking lot with his family in front of the roller coaster. She

testified that she knew defendant was a registered sex offender and believed he was

not allowed to be at the fest. She therefore notified a nearby police officer as to

defendant’s presence.

¶ 51 Chicago police officer Daniel McGreal testified that, after speaking with

Cassidy, he approached defendant and asked for his name and identification.

Defendant cooperated and showed his identification. Officer McGreal asked

defendant to walk with him to his police vehicle so that he could run his name.

Defendant did so. A search of defendant’s name did not reveal any warrants or

information about defendant’s background as a registered sex offender. Officer

McGreal then testified:

“So as I talked to him I told him I believe he shouldn’t be here, and he

agreed. And he agreed to leave.

Q. And he agreed to leave, and then he did leave that area from the carnival?

A. Yes, correct.”

¶ 52 Robert testified consistently with Officer McGreal’s testimony as to

defendant’s actions. He testified that, after Officer McGreal took defendant’s

information, he “told us to leave because people were uncomfortable we were

there.” They left immediately afterward.

¶ 53 The following day, Cassidy went to defendant’s house and knocked on his door.

She told defendant that she had made a formal complaint to the Evergreen Park

- 14 -

Police Department stating that he was present at the fest. Cassidy testified that

defendant “said he understood what my concerns were.”

¶ 54 Following the presentation of evidence and closing arguments, the circuit court

found defendant guilty of the charged offense and sentenced him to one year in

prison. On appeal, defendant argued that the evidence was insufficient to convict

him beyond a reasonable doubt. A divided appellate court panel affirmed

defendant’s conviction. 2020 IL App (1st) 170837-U. This appeal followed.

¶ 55 In a case involving a challenge to the sufficiency of the evidence, such as this

one, “a reviewing court must determine whether, after viewing the evidence in the

light most favorable to the State, any rational trier of fact could have found the

required elements of the crime beyond a reasonable doubt.” People v. Gonzalez,

239 Ill. 2d 471, 478 (2011).

¶ 56 Section 11-9.3(a) provides, in relevant part, that “[i]t is unlawful for a child sex

offender to knowingly be present *** on real property comprising any school ***

when persons under the age of 18 are present *** on the grounds.” (Emphasis

added.) 720 ILCS 5/11-9.3(a) (West 2014). “The State must present sufficient

evidence from which an inference of knowledge can be made, and any inference

must be based on established facts and not pyramided on intervening inferences.”

People v. Weiss, 263 Ill. App. 3d 725, 731 (1994). Accordingly, if the State failed

to introduce established facts to prove that defendant knew he was on real property

comprising a school within the meaning of the statute, defendant’s conviction

should be overturned.

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

(a) The nature or attendant circumstances of his or her conduct,

described by the statute defining the offense, when he or she is consciously

aware that his or her conduct is of that nature or that those circumstances

exist. Knowledge of a material fact includes awareness of the substantial

probability that the fact exists.

(b) The result of his or her conduct, described by the statute defining the

offense, when he or she is consciously aware that that result is practically

certain to be caused by his conduct.” 720 ILCS 5/4-5 (West 2014).

- 15 -

¶ 57 A defendant commits an offense “knowingly” when he “knows all of the facts

that make his conduct illegal.” McFadden v. United States, 576 U.S. 186, 194-95

(2015). Knowledge may be proven through direct evidence or circumstantial

evidence. People v. Ortiz, 196 Ill. 2d 236, 260 (2001). Importantly, “knowledge”

in a criminal prosecution involves conscious awareness; “ ‘knowledge’ is not the

same as ‘should have known.’ ” People v. Nash, 282 Ill. App. 3d 982, 986 (1996).

For this reason, at least one court has held that a registered sex offender who

unknowingly enters a restricted area is not in violation of a statute that prohibits

“knowingly” being present there, so long as he leaves the area immediately upon

learning that he is in fact in a restricted area. See Does 1-5 v. Cooper, 148 F. Supp.

3d 477, 487-88 (M.D.N.C. 2015) (interpreting a North Carolina state statute

providing that a sex offender cannot “knowingly be at” one of the restricted zones

specified in the statute (N.C. Gen. Stat. § 14-208.18(a) (2011))).

¶ 58 In this case, the evidence admitted at trial does not support the proposition that

defendant either knew or was aware of the substantial probability that the St. Louis

Avenue parking lot was school property. See 720 ILCS 5/11-9.3(a) (West 2014);

id. § 4-5(a). Indeed, the State introduced no affirmative evidence, either

circumstantial or direct, to establish defendant’s knowledge of the facts making his

conduct illegal. Rather, all the evidence introduced at trial refutes that defendant

was aware he was present on real property comprising a school.

¶ 59 No evidence was introduced at trial of any visible signifiers that would have put

defendant on notice that he was in a school parking lot. The witnesses uniformly

testified that there were no signs, banners, or markings of any kind in the vicinity

of the parking lot indicating that it was school property. The witnesses testified that

the only sign advertised a church function—bingo and raffles on Thursday

evenings. In addition, the flyer for the fest advertised the “Queen of Martyrs Fest”

and listed attractions including live music, food, beer, carnival rides, and games.

The flyer did not mention the school at all. Nor was there any evidence that

defendant was familiar with the property or had ever set foot on the property before

that night. Thus, there were no external, objective indicators that would have

notified defendant that he was present on property comprising a school.

¶ 60 Despite the total lack of evidence that defendant was aware he was on school

property, the majority nevertheless reaches the opposite conclusion. The majority

- 16 -

cites the following evidence: (1) testimony that some witnesses considered the

parking lot to be school property, (2) the layout of the fest, and (3) the fact that

defendant left the fest without protest and told Cassidy the next day that he

understood her concerns. None of this evidence is probative of defendant’s

knowledge that he was present on school property, let alone sufficient to establish

the mens rea element of the offense beyond a reasonable doubt. In fact, the

evidence of defendant’s conduct supports his claim that he was unaware of the

nature of the parking lot.

¶ 61 The majority first cites the testimony of Reverend Mikolajczyk, who testified

that “people considered the church and school to be synonymous,” as well as that

of Officer McGreal and Cassidy, who testified “that they believed the festival to be

a school function.” Supra ¶ 38. This testimony is not relevant to the issue of

defendant’s knowledge. “Relevant evidence is evidence having any tendency to

make the existence of any fact that is of consequence to the determination of the

action more probable than it would be without the evidence.” People v. Lewis, 165

Ill. 2d 305, 329 (1995). The fact that several witnesses testified to their personal

belief that they considered the parking lot to be school property is not relevant to

defendant’s knowledge. There was no evidence that defendant knew any of the

State’s witnesses or was privy to their personal beliefs or perceptions as to whether

the parking lot was school property or church property.

¶ 62 The only scenario in which this testimony might be slightly relevant would be

if there were evidence that everyone in the parish and neighborhood knew that the

parking lot was school property. This was clearly not the case. Irene Smith, the

parish business manager for the past 20 years, testified that the parking lot had been

considered church property for as long as she had worked there. Robert Pellegrini,

the chairperson for the fest, testified that the parking lot was a parish lot and the

fest was a church function. Defendant’s brother, Robert, a parishioner for seven

years, testified that he considered the parking lot to be the church parking lot. He

also testified that he would not have invited defendant to the fest had he known that

the property was school property. Finally, the police report referred to the place of

incident as a “church, synagogue, or temple.”

- 17 -

¶ 63 Thus, the evidence shows there was considerable disagreement as to the nature

of the parking lot. On this point, I agree with the dissenting justice in the appellate

court that

“[t]he fact that there was a genuine disagreement by disinterested witnesses as

to whether or not this parking lot was part of a school or part of a church

undermines any suggestion that [defendant] knew that this was school

property.*** In short, there is simply no way that [defendant] can be charged

with knowledge of something which was not marked by any signage and on

which even the witnesses and the church employees could not agree.” 2020 IL

App (1st) 170837-U, ¶ 41 (Mikva, P.J., dissenting).

¶ 64 The majority also finds that the location of the parking lot and the layout of the

fest “lends support to the proposition that defendant was aware of a substantial

probability that the St. Louis Avenue parking lot is located on school grounds.”

Supra ¶ 39. The majority cites evidence that there were children’s rides in the

parking lot, that the rides continued across the street to the alley behind the school,

and that the school was open to where one could walk through to the back of the

school, where there were food vendors and music. Supra ¶ 39. The majority finds,

“[w]hile the evidence showed that defendant stayed in the St. Louis parking lot, by

the maps in evidence it can be inferred that he would have been able to see that the

rides continued across the street and behind the gymnasium and school.” Supra

¶ 39. This inference is wholly misinformed and unsupported by the evidence.

¶ 65 There was no witness testimony as to whether the school or the other rides were

visible from the St. Louis Avenue parking lot or whether they were obstructed by

the parish hall across the street. Nor was there evidence that defendant, specifically,

was aware of the other areas of the fest or could see the school from the parking

lot. The majority’s finding that “it can be inferred that [defendant] would have been

able to see that the rides continued across the street and behind the gymnasium and

school” (supra ¶ 39) is pure speculation and conjecture. Therefore, no inference

can be drawn from this evidence. See People v. Jones, 174 Ill. 2d 427, 429-30

(1996) (a sufficiency of evidence finding must be based on evidence of record and

not on guess, speculation, or conjecture).

¶ 66 The majority also seems to imply that the fact there were children’s rides in the

parking lot indicated that it was real property comprising a school. This implication

- 18 -

is false. The fest was advertised as an event for adults as well as children. The flyer

listed food, beer, and live music, and the fest was scheduled to end at midnight. It

was not an event exclusively for children. Moreover, the statute does not bar a

registered sex offender from attending carnivals or festivals where children and

children’s rides are present. Accordingly, nothing about the mere fact that the lot

contained children’s rides would have put defendant on notice that he was on real

property comprising a school.

¶ 67 The remaining evidence cited by the majority in support of the knowledge

element is defendant’s actions in agreeing to leave the fest at the request of Officer

McGreal and telling his neighbor that he understood her concerns. Not only is this

evidence not probative of defendant’s knowledge, but it supports his defense that

he was not aware the parking lot was school property. There was no testimony that

Officer McGreal discussed with defendant the fact that he was on school property.

Rather, McGreal told defendant that people were “uncomfortable” that he was at

the fest and that he should not be there. The only reasonable inferences that can be

drawn from defendant’s conduct are that he agreed he should not be present at a

place where he was making people uncomfortable and that he complied with the

officer’s request to leave. Likewise, the only reasonable inference from his

statement to Cassidy when she knocked on his door and told him she had filed a

police report is that he understood she was concerned about his presence at the fest.

No consciousness of guilt can be inferred from these actions or statements.

¶ 68 Defendant simply accompanied his family to a parish fest at his brother’s

invitation. Defendant was standing out in the open with his family members, in

plain view of the public, people in the local community, and at least one police

officer. He displayed no evasiveness and did not attempt to hide or conceal his

identity. Upon being confronted by Officer McGreal, defendant gave his name and

showed his identification. He did not flee, nor did he object to the officer running

his name through the system. He then promptly left the fest as requested.

Furthermore, the parties stipulated at trial that defendant was compliant with all the

requirements of the sex offender registration laws for eight years prior to these

events. None of this evidence would reasonably justify the inference of knowledge

of the circumstances comprising the offense. On the contrary, defendant’s conduct

shows a lack of knowledge. See, e.g., Does 1-5, 148 F. Supp. 3d at 487-88 (holding,

under North Carolina state law, that a registered sex offender who unknowingly

- 19 -

enters a restricted zone is not in violation of a statute that prohibits “knowingly”

being present in that zone, so long as he leaves the area immediately upon learning

that he is in fact in a restricted zone). Thus, this evidence completely contradicts

the majority’s conclusion that defendant “knowingly” violated the statute.

¶ 69 The majority’s reliance on defendant’s conduct as evidence of his knowledge

also places defendant in a no-win situation. Typically, where a defendant is

cooperative and compliant with police instructions, it suggests an absence of

consciousness of guilt. See, e.g., Ortiz, 196 Ill. 2d at 260 (evidence supporting

defendant’s lack of culpability included the fact that he allowed police to search his

vehicle after being told he was free to leave); People v. Chatha, 2015 IL App (4th)

130652, ¶ 55 (evidence of defendant’s demeanor and willingness to comply with

sheriff’s requests during investigation buttressed the conclusion that he did not

know the products he sold contained a controlled substance). By contrast, where a

defendant is evasive, visibly nervous, conceals his activities, or flees the scene, a

consciousness of guilt can be inferred by the trier of fact. See, e.g., McFadden, 576

U.S. at 192 n.1; Ortiz, 196 Ill. 2d at 266; Lewis, 165 Ill. 2d at 349-50; People v.

Monteleone, 2018 IL App (2d) 170150, ¶ 34; 29 Am. Jur. 2d Evidence § 527 (May

2022 Update); Hoerauf v. State, 941 A.2d 1162, 1180 (Md. Ct. Spec. App. 2008).

¶ 70 The majority’s holding traps a defendant into a Catch-22, whereby a defendant

can be charged with knowledge based on his cooperation with a law enforcement

officer but, presumably, can also be charged with knowledge based on his evasion

or flight from a law enforcement officer. Under the majority’s holding, a defendant

has a guilty mind if he complies with police and a guilty mind if he refuses to

comply. The majority does not support this proposition with caselaw, nor am I

aware of any caselaw that infers guilt from a defendant’s cooperation with police.

The implications of the majority’s holding are deeply troubling.

¶ 71 Where a conviction is based on evidence that is so improbable, unconvincing,

or contrary to human experience as to justify a reasonable doubt of defendant’s

guilt, it is this court’s duty to reverse the judgment of conviction. Ortiz, 196 Ill. 2d

at 259, 267. The State failed to meet its burden of proving that defendant either

knew or was aware of the substantial probability that he was present on property

comprising a school. Since the State failed to introduce any credible evidence that

defendant knowingly violated section 11-9.3(a) of the Criminal Code of 2012,

- 20 -

defendant’s conviction should be reversed. For the foregoing reasons, I respectfully

dissent.

¶ 72 JUSTICE NEVILLE joins in this dissent.

- 21 -