{ "id": 2883087, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WARREN WENGER, Defendant-Appellant", "name_abbreviation": "People v. Wenger", "decision_date": "1994-03-08", "docket_number": "No. 1-92-4322", "first_page": "561", "last_page": "567", "citations": [ { "type": "official", "cite": "258 Ill. App. 3d 561" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "531 N.E.2d 1130", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "177 Ill. App. 3d 96", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3622601 ], "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0096-01" ] }, { "cite": "569 N.E.2d 1189", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "210 Ill. App. 3d 1059", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2534114 ], "year": 1988, "pin_cites": [ { "page": "1063" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/1059-01" ] }, { "cite": "577 N.E.2d 799", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "217 Ill. App. 3d 797", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5283835 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/217/0797-01" ] }, { "cite": "595 N.E.2d 1141", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "230 Ill. App. 3d 922", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5210640 ], "year": 1991, "pin_cites": [ { "page": "924" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/0922-01" ] }, { "cite": "549 N.E.2d 226", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "229" } ], "opinion_index": 0 }, { "cite": "133 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260243 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "5" }, { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0001-01" ] } ], "analysis": { "cardinality": 725, "char_count": 15640, "ocr_confidence": 0.789, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.4121668869497797 }, "sha256": "8322c84925f1e6ba5f83d4ee129c8aba1762ae2f3e3e3c1d43aaf504c6c6099e", "simhash": "1:ba1435f48211e275", "word_count": 2723 }, "last_updated": "2023-07-14T22:48:59.357066+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WARREN WENGER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nFollowing a bench trial, defendant Warren Wenger was found guilty of child abduction. The trial judge sentenced defendant to three years\u2019 imprisonment in the Illinois Department of Corrections. On appeal, defendant contends: (1) that the prosecutor\u2019s inability to prove the elements of unlawful intent and an attempted entry into a car requires reversal of the conviction for child abduction; (2) that the statute defining the offense of child abduction, as applied to defendant, created an unconstitutional presumption that he was acting \"for other than a lawful purpose\u201d; (3) that the child abduction statute violates the Illinois due process clause by including \"attempt\u201d within the completed offense and by proscribing behavior not within the scope of the legislative interest; (4) that defendant\u2019s conviction for the completed crime of child abduction based on an \"attempt\u201d violated the proportionate penalties provision of the Illinois Constitution, the equal protection clause of the Federal Constitution, and the principle of separation of powers; and (5) that the \"attempt luring\u201d provision of the child abduction statute is unconstitutionally vague under Federal due process guarantees by subjecting persons engaging in innocent behavior to criminal prosecutions and by leaving judges or juries to decide arbitrarily what is prohibited.\nIn November 1991, defendant was charged with one count of child abduction for attempting to lure A.T., a child under the age of 16 years, into a motor vehicle without parental consent for other than a lawful purpose. The State\u2019s case consisted of the testimony of A.T., M.P., and Bob Leamy.\nAccording to the testimony of M.P., A.T.\u2019s 15-year-old stepsister, on September 17, 1991, at approximately 7:45 p.m., she and A.T. were riding their bicycles when they stopped about a block from home in the mouth of an alley to speak to Bob Leamy, a 17-year-old friend. M.P. stated that it was \"dark out\u201d and that, as they were speaking, a black and yellow jeep without its headlights on drove down the alley \"pretty fast\u201d toward them. M.P. testified that she and A.T. then rode off on their bicycles. M.P. further stated that she had seen the jeep before. She said that on July 1, 1991, she was sitting alone on the steps of her mother\u2019s apartment when she observed defendant pass by three times. According to M.P., the jeep then stopped in front of her and she \"went upstairs to tell [her] mother.\u201d\nM.P. testified that after they left the alley, she and A.T. rode \"to my right and just left\u201d toward the home of their friends, the D\u2019Amadioses. When they left the D\u2019Amadioses\u2019 home and rode back down 59th Street, M.P. stated that she saw defendant again from about 10 feet as he pulled his jeep out of his friend\u2019s driveway on 59th Street. She stated they then turned their bicycles around and rode up 59th Street toward Austin. According to M.P. when they turned down Austin, they saw the jeep for the third time as it came out of the alley behind defendant\u2019s friend\u2019s home and came toward them. They then turned down 25th Street toward 59th Street and saw defendant driving down a different alley. They turned back down 59th Street toward 25th Street again and at that moment they encountered M.P.\u2019s father. M.P. further testified that defendant did not signal to her or make any motions toward her or speak to her. She also stated that the jeep was \"[n]ot following us but cutting us off.\u201d\nA.T., the 12-year-old victim, testified that she and M.P. were speaking to Bob Leamy in the mouth of an alley when she saw the black and yellow jeep drive toward them down the alley without its headlights on. According to A.T., she then drove toward Austin Street to the \"Damatos\u201d\u2019 home. She said she was not with M.P. She then stated she was still alone when she left the \"Damatos\u201d\u2019 home and drove toward \"an alley behind [M.P.\u2019s] apartment.\u201d She stated that she was riding down 25th Street and was \"starting to go down [M.P.\u2019s] street\u201d when she \"stopped because I seen his jeep sitting there.\u201d A.T. testified that the jeep was parked in the street and defendant was in the driver\u2019s seat speaking to some girls. She stated that he then motioned three times for her to come toward him and she turned and rode away \"trying to find [M.P.].\u201d She testified that she was approximately five car lengths away and defendant did not say anything to her. According to A.T., she then met up with M.P. and her father, who was driving down the street.\nBob Leamy, a 17-year-old high school student, testified he was a friend of M.P.\u2019s. He stated that he was talking with M.P. and A.T. in the mouth of the alley for approximately 5 to 10 minutes when a black and yellow jeep without its headlights on came down the alley towards them. He said that the girls rode off and told him that \"if somebody comes looking for us, you haven\u2019t seen us.\u201d According to Leamy, the jeep pulled up and the driver asked him if he had seen two girls on bicycles. Leamy stated that he responded by saying, \"I seen them, but I didn\u2019t know where they went.\u201d Leamy testified that the jeep then made a left out of the alley and then made another left down 59th Street. Leamy was unable to identify defendant as the driver of the jeep.\nAfter Leamy\u2019s testimony the State rested and defendant moved for a directed verdict on the grounds that the State failed to prove the charge of child abduction beyond a reasonable doubt. Defendant contended that the State introduced insufficient evidence to prove that he \"intentionally attempted to lure A.T. into a car.\u201d Additionally, he asserted that no testimony had been introduced on the issue of consent which was an element of the offense. The trial judge denied the motion without comment.\nDefendant then testified in his own defense. He stated that on September 17, 1991, at approximately 7:45 p.m., he was visiting his friend Tim Sepanik. Sepanik\u2019s house was in the middle of the block bordered in the front by 59th Street and in the back by the alley in question. He stated that he parked in the alley behind Sepanik\u2019s house, but the gate was locked. Therefore, he restarted his car, turned the lights on and pulled out of the alley. He stated that he drove around to the front of the house, parked in Sepanik\u2019s driveway, and went inside. According to defendant, Sepanik was eating supper \"so then I just left again.\u201d Defendant stated that he visits his friend \"almost every night.\u201d\nDefendant denied following M.P. and A.T. around that night and, in fact, denied even seeing them. He admitted, however, that he had seen A.T. once before. He then recounted his version of the events on July 1, 1991. He stated that he saw A.T. sitting on the sidewalk and he smiled at her as he drove past. He testified that while he was at the gas station A.T.\u2019s mother arrived and asked him what he was doing with her daughter and threatened to press charges against him. He asserted, however, that he had never been convicted of any misdemeanors or felonies.\nHe also denied ever seeing Bob Leamy. He asserted that if Leamy was in the alley, \"[h]e must have been behind me and I didn\u2019t see him.\u201d He denied ever motioning for the girls to come over to his car. He also denied knowing the girls\u2019 mother and admitted that he did not have permission to pick them up in his jeep. He asserted that he went straight home from Sepanik\u2019s house and was sitting in his jeep drinking a soda pop when he was arrested. At the conclusion of defendant\u2019s testimony, the defense rested.\nAfter closing statements, the trial judge found defendant guilty of child abduction. In coming to his conclusion, the judge reasoned:\n\"What occurs is that this man comes down the alley. He says he saw \u2014 Mr. Wenger says he saw no one, not the girls, not Mr. Leamy, turned left the same way they say they turned, went around to the front to his friend Tim\u2019s house.\n[Defendant] says he never saw these girls that night, that everything is made up. But it seems that these girls must have seen him because he admitted being in the driveway of Tim, and he admitted that when he went in the house Tim was eating.\nThe back gate was locked so he had to go around the front. Tim was eating so he left and he pulled out of the driveway. That\u2019s what both of the witnesses said. They said he pulled out of that driveway.\nNow the mere fact that he may have been talking to some other girls and then he turned around and started waving, that\u2019s what luring children is all about, waving, trying to get them to come near you. The fact that she didn\u2019t hear what he was saying if he was saying anything, really means absolutely nothing.\nThe fact that our learned counsel, he\u2019s a very good lawyer Mr. Mather turns around and decides that it was five car lengths.\nI mean you have to listen to the young lady of 11 years old. God knows if she really knows what five car lengths is, we\u2019re making an assumption that she knew that.\nShe did know one thing, she knew he was waving at her. She knew every way she went he was there.\nFirst of all I\u2019m going to find him guilty. Then I\u2019m going to make a statement. Under the new stalking laws he would be a prime candidate for stalking.\u201d\nAt the sentencing hearing, the State introduced the testimony of Detective Joseph Sirgedas in aggravation. Sirgedas testified that when he arrested defendant on July 1, 1991, an inventory was done of defendant\u2019s vehicle. He stated that they found the following items in defendant\u2019s car at the time of his arrest: \"Numerous sex toys and lubricants. There were three towels, one prolonging cherry tube, one bottle of petroleum cream for women, one bottle of vaseline, two Rough Rider condoms, one bottle of wet personal lubricant, and two rubber dildos.\u201d In mitigation, defendant asserted that he had no prior convictions, was seeing a psychiatrist and taking prolixin injections. He asserted that at the time of the incident he had stopped his medication because he was unable to afford it. He maintained, however, that he had since resumed taking his injections. The trial judge sentenced defendant to three years\u2019 incarceration in the Illinois Department of Corrections. Defendant then filed this timely appeal.\nDefendant\u2019s first contention on appeal is that the State failed to prove two elements of the offense of child abduction, namely, the elements of \"unlawful intent\u201d and \"attempted entry.\u201d Specifically, defendant argues that defendant\u2019s alleged waving gesture to A.T. was insufficient to establish either a specific unlawful intent or that he was attempting to lure A.T. into his jeep. The State, on the other hand, asserts that the evidence was clearly sufficient to prove beyond a reasonable doubt that defendant intentionally attempted to lure A.T. into his vehicle for an unlawful purpose.\nSection 10 \u2014 5(b)(10) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 10 \u2014 5(b)(10) (now 720 ILCS 5/10 \u2014 5(b)(10) (West 1992))) provides in pertinent part:\n\"(b) A person commits child abduction when he or she:\n* * *\n(10) Intentionally lures or attempts to lure a child under the age of 16 into a motor vehicle *** without the consent of the parent or lawful custodian of the child for other than a lawful purpose.\nFor the purposes of this subsection (b), paragraph (10), the luring or attempted luring of a child under the age of 16 into a motor vehicle *** without the consent of the parent or lawful custodian of the child shall be prima facie evidence of other than a lawful purpose.\u201d Ill. Rev. Stat. 1991, ch. 38, par. 10 \u2014 5(b)(10) (now 720 ILCS 5/10 \u2014 5(b)(10) (West 1992)).\nWe must agree with defendant that the evidence was insufficient to show that he attempted to lure A.T. into his jeep. Thus, the State also failed to present \"prima facie evidence of other than a lawful purpose.\u201d According to the testimony of the State\u2019s witnesses, A.T. and M.P. saw defendant four times on September 17, 1991. The first time they saw him he was driving out of the alley behind his friend\u2019s house while they were speaking with Leamy at the mouth of the alley. It is uncontested that defendant then drove around the block and parked in his friend\u2019s driveway: The second time they saw defendant, he was exiting his friend\u2019s driveway. The third time they saw him he was coming out of the alley in front of them again. Apparently, the fourth time he was parked and speaking to some girls from his jeep.\nM.P. and A.T. were not positive defendant was following them and the evidence surely does not establish that fact. Consequently, the only evidence presented which goes to the element of \"attempted luring\u201d is A.T.\u2019s testimony. A.T. testified that she saw defendant\u2019s jeep parked and defendant in the driver\u2019s seat speaking to some girls who were standing outside the vehicle. A.T. said that when he noticed her he waved three times for her to come toward him. She stated she then turned her bicycle and rode away. According to A.T., defendant never said anything to her. This conduct is simply not sufficient to prove that defendant was attempting to lure A.T. into his vehicle.\nIn every case of which this court has been made aware, a defendant convicted of child abduction was clearly pursuing the child and-did more than simply wave. In People v. Rogers (1989), 133 Ill. 2d 1, 5, 549 N.E.2d 226, defendant asked two boys to help him unload newspapers for $5, briefly touched the boys\u2019 \"private parts,\u201d and then offered them money for sex. In People v. Patten (1992), 230 Ill. App. 3d 922, 924, 595 N.E.2d 1141, defendant stopped his car near the child, exited his vehicle leaving the door open, reached out for the child and said \"come here, I want to give you a kiss.\u201d In People v. Marcotte (1991), 217 Ill. App. 3d 797, 577 N.E.2d 799, defendant told the minor child she was pretty, motioned her over to his car, and asked her if she wanted him to pick her up after school to take her to get her hair done. In People v. Joyce (1991), 210 Ill. App. 3d 1059, 1063, 569 N.E.2d 1189, defendant honked and waved to the child, told her to get into his truck, and said \"I don\u2019t bite and I will give you a ride home.\u201d In People v. Embry (1988), 177 Ill. App. 3d 96, 98, 531 N.E.2d 1130, defendant stopped his car adjacent to several girls and stated, \"[g]et in the damn car right now.\u201d We believe that without some affirmative conduct evidencing an intent to lure a child into a vehicle such as apparent in the above-cited cases the innocuous gesture of waving is insufficient to prove beyond a reasonable doubt that defendant was attempting to lure the child into his jeep.\nDefendant\u2019s remaining arguments all challenge the constitutionality of the child abduction statute. In light of our determination that defendant was not proven guilty beyond a reasonable doubt, however, we need not address these arguments. Additionally, we note the fundamental principle of constitutional law that a reviewing court will not address constitutional questions if the case may be disposed of on other grounds. Rogers, 133 Ill. 2d at 8, 549 N.E.2d at 229.\nFor the foregoing reasons, we reverse the judgment of the circuit court of Cook County.\nReversed.\nCAMPBELL, P.J., and MANNING, J., concur.", "type": "majority", "author": "JUSTICE BUCKLEY" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Sang Won Shim, Assistant State\u2019s Attorneys, of counsel), for the People. \u2022" ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WARREN WENGER, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1 \u2014 92\u20144322\nOpinion filed March 8, 1994.\nRita A. Fry, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Sang Won Shim, Assistant State\u2019s Attorneys, of counsel), for the People. \u2022" }, "file_name": "0561-01", "first_page_order": 581, "last_page_order": 587 }