{ "id": 847542, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EFRAIN ZAMUDIO, Defendant-Appellant", "name_abbreviation": "People v. Zamudio", "decision_date": "1997-12-24", "docket_number": "No. 1\u201495\u20141246", "first_page": "976", "last_page": "984", "citations": [ { "type": "official", "cite": "293 Ill. App. 3d 976" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "643 N.E.2d 845", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 194", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381907 ], "year": 1994, "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0194-01" ] }, { "cite": "617 N.E.2d 236", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "247 Ill. App. 3d 149", "category": "reporters:state", "reporter": "Ill. 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App. 3d 433", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172353 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-app-3d/277/0433-01" ] }, { "cite": "286 Ill. App. 3d 478", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544448 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "481" }, { "page": "483" }, { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0478-01" ] }, { "cite": "291 Ill. App. 3d 431", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 456092 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/291/0431-01" ] } ], "analysis": { "cardinality": 783, "char_count": 16002, "ocr_confidence": 0.764, "pagerank": { "raw": 8.960703249981622e-08, "percentile": 0.502098384886532 }, "sha256": "65470fdabf3e7e829ed143be725d67001d603d27d17cabb46b3c337da5f39e68", "simhash": "1:793d9118a469e358", "word_count": 2677 }, "last_updated": "2023-07-14T15:37:50.535591+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. EFRAIN ZAMUDIO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE CAHILL\ndelivered the opinion of the court:\nAfter a bench trial, defendant Efrain Zamudio was convicted of stalking in violation of section 12 \u2014 7.3(a) of the Criminal Code of 1961. 720 ILCS 5/12 \u2014 7.3(a) (West 1996). Defendant was sentenced to two years of probation and one year of home confinement on Saturday nights. He was ordered to refrain from contact with Carlos Rios and Rios\u2019 family.\nDefendant makes the following arguments on appeal: (1) section 12 \u2014 7.3(a) of the Criminal Code applies to innocent conduct in violation of due process; (2) the section is unconstitutionally overbroad; (3) the section is unconstitutionally vague because the term \"follows\u201d is not defined; and (4) the evidence was insufficient to sustain defendant\u2019s conviction. We affirm.\nCarlos Rios testified at trial that he and defendant were friends for about four years before Rios decided to end the friendship. At about 2 p.m. on January 22, 1994, Rios was driving on State Road to Chicago Ridge Mall, where he worked as a salesperson in a clothing store. As he drove, a red Camaro approached from the opposite direction. He recognized the car as one that he had seen defendant driving before. The Camaro quickly made a U-turn and followed Rios about four blocks to a traffic light at the intersection of Ridgeland and 87th Streets. While Rios waited at the red light, defendant pulled alongside Rios\u2019 car, lowered his window, and began shouting. Rios could not hear what defendant was saying through his closed window.\nRios testified that on January 28, 1994, at 11:45 p.m., he saw defendant\u2019s car behind his car as he left a friend\u2019s house at 64th and Lawndale Streets. Rios turned left onto 63rd Street and defendant followed. When Rios increased his speed to 45 miles per hour, so did defendant. Defendant maintained a distance of two to three feet behind Rios\u2019 car. Rios stopped at a red light. Defendant pulled beside him, lowered his window and shouted at Rios. Rios could not hear what defendant said.\nRios also testified that on February 14, 1994, he took Norma Renteria to a movie. As they drove to Renteria\u2019s house after the movie, at around 9:30 p.m., Rios noticed a Cutlass Supreme with fog lights following him. Rios was unfamiliar with the car, but suspected defendant was the driver because of the way the car followed him. The car remained directly behind Rios\u2019 car and followed him to Renteria\u2019s house.\nRenteria lived near the end of a dead-end street. Rios testified that he parked his car in front of Renteria\u2019s house. Defendant then parked his car so that it completely blocked Rios\u2019 car. Defendant got out of his car, walked to Rios\u2019 car, banged on the window, and said he was going to kill Rios. Rios and Renteria stayed in the car.\nRios attempted to free his car because \"[h]e was afraid and had nowhere to go.\u201d He drove forward and \"tapped\u201d defendant\u2019s car before backing into Renteria\u2019s driveway. Defendant ran to his car, retrieved a portable phone, and then \"sped off.\u201d When Rios arrived home, he called the police and later went to the police station.\nRenteria\u2019s testimony corroborated Rios\u2019 account of the February 14, 1994, incident.\nFrancis Martin Rios, Carlos Rios\u2019 mother, testified that she went to the police station on February 14, 1994. She talked to defendant in an interview room with two police officers present. Defendant pleaded with her not to press charges. Defendant said he was going to stop following Rios. Francis Rios did not believe defendant because defendant was already in violation of a court order directing defendant to stay away from Rios.\nDefendant testified on his own behalf. He said that on January 22, 1994, he visited a cousin at the Chicago Ridge Mall. As he was driving home, he saw Rios\u2019 car heading toward the mall on State Road. He denied following Rios. He also denied rolling down his window and shouting at Rios.\nDefendant denied seeing, following or shouting at Rios on January 28, 1994. He admitted that he saw Rios and Renteria on February 14, 1994. He claimed that he was on his way to visit a friend who lived near Renteria. He drove down the street on which Renteria lived and made a U-turn. Defendant then noticed Rios\u2019 car approaching in his rearview mirror. Rios drove his car into defendant\u2019s car. Defendant claimed that he got out of his car and tried to get Rios\u2019 insurance information, but Rios and Renteria laughed at him and ignored his request. Defendant denied threatening to kill Rios, but admitted that he hit Rios\u2019 car window and told Rios that he was going to \"kick his ass.\u201d Defendant claimed that Rios\u2019 car came toward him and tapped his legs as he returned to his car. Defendant unsuccessfully tried to call the police, so he drove to the police station. Defendant was at the station filling out an accident report when he was arrested for stalking Rios.\nDefendant challenges the constitutionality of the stalking statute on several grounds. Defendant argues that the statute \"punishfes] wholly innocent conduct.\u201d He further argues that the statute is over-broad because it can be applied to constitutionally protected conduct. The statute that defendant was prosecuted under reads:\n\"(a) A person commits stalking when he or she, knowingly and without lawful justification, on at least 2 separate occasions follows another person or places the person under surveillance or any combination thereof and:\n(1) at any time transmits a threat to that person of immediate or future bodily harm, sexual assault, confinement or restraint; or\n(2) places that person in reasonable apprehension of immediate or future bodily harm, sexual assault, confinement or restraint.\u201d 720 ILCS 5/12 \u2014 7.3(a) (West 1996).\nAssault is as old as the English common criminal law (6 Am. Jur. 2d Assault & Battery \u00a7 1 (1963)), is a part of the Model Penal Code (Model Penal Code \u00a7 211.1, 10 U.L.A. 538 (1974)), and has been a part of the Illinois Criminal Code from the beginning (720 ILCS 5/12 \u2014 1 (West 1996)). Stripped of the name \"stalking,\u201d the conduct described and proscribed in the statute is nothing more than one example of an assault at common law or the offense of assault in our criminal code.\nIn People v. Rand, 291 Ill. App. 3d 431 (1997), and in People v. Cortez, 286 Ill. App. 3d 478 (1996), we held that the \"knowingly\u201d and \"without lawful justification\u201d requirements limit the reach of the statute to only culpable conduct. Rand, 291 Ill. App. 3d at 438; Cortez, 286 Ill. App. 3d at 481. Following those cases, we reject defendant\u2019s argument that the statute can be applied to innocent or constitutionally protected conduct. The conduct must be accompanied by evidence of a threat of harm or of placing the victim in reasonable apprehension of harm. The State must plead and prove each essential element of the offense. People v. Soto, 277 Ill. App. 3d 433, 438 N.E.2d 990 (1995). Defendant\u2019s argument suggests that the statute would permit a conviction based on evidence of following without more. The statute cannot be so read. The statute does not require that the threat \"precede\u201d the \"following,\u201d but, rather, the requirement that the State prove that the following is unlawful makes clear that the State must prove that the following and threat are part of a course of conduct that the legislature has dubbed the assault of \"stalking.\u201d\nWe next address defendant\u2019s argument that the stalking statute is unconstitutionally vague because it fails to define the word \"foh lows.\u201d Since defendant\u2019s vagueness challenge does not implicate first amendment concerns, we need only address whether the statute is vague as applied in this case. People v. Jihan, 127 Ill. 2d 379, 385, 537 N.E.2d 751 (1989).\nA statute is unconstitutionally vague under the due process clauses of the United States and Illinois Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, \u00a7 2) if it fails to give \"a person of ordinary intelligence a reasonable opportunity to know what conduct is lawful and what conduct is unlawful.\u201d People v. Anderson, 148 Ill. 2d 15, 27-28, 591 N.E.2d 461 (1992). A statute is also unconstitutionally vague if it allows for arbitrary and discriminatory application by police, judges, and juries. Jihan, 127 Ill. 2d at 385.\nDefendant contends that he could not have known his conduct on January 22 or 28 violated the statute because he was merely \"[driving] behind Rios\u2019 car in a public place\u201d and doing nothing \"in furtherance of [a] threat.\u201d He argues that the term \"following\u201d is too vague to warn him that his conduct was prohibited.\nIn the absence of a statutory definition, words in a statute are to be given their ordinary and popularly understood meanings. People v. Anderson, 148 Ill. 2d at 28. In Cortez, we held that \"[t]he 1993 stalking statute\u2019s use of the terms 'follows\u2019 and 'surveillance\u2019 is sufficiently definite to put the average person on notice as to what constitutes a violation.\u201d Cortez, 286 Ill. App. 3d at 483. We relied on our supreme court\u2019s interpretation of an earlier version of the stalking statute. See People v. Bailey, 167 Ill. 2d 210, 657 N.E.2d 953 (1995).\nThe statute at issue in Bailey read:\n\"(a) A person commits stalking when he or she transmits to another person a threat with the intent to place that person in reasonable apprehension of death, bodily harm, sexual assault, confinement or restraint, and in furtherance of the threat knowingly does any one or more of the following acts on at least 2 separate occasions:\n(1) follows the person, other than within the residence of the defendant;\n(2) places the person under surveillance by remaining present outside his or her school, place of employment, vehicle, other place occupied by the person, or residence other than the residence of the defendant.\u201d 720 ILCS 5/12 \u2014 7.3(a) (West 1992).\nDefendant argues that Bailey is inapplicable because the term \"follows\u201d is no longer required to be \"in furtherance of a threat.\u201d Defendant argues that the \"in furtherance of a threat\u201d requirement saved the 1992 stalking statute from being deemed unconstitutionally vague in Bailey.\nIn Bailey, our supreme court noted that \"[b]ecause the following must be in furtherance of a threat, the term 'following\u2019 must have an element of pursuit to it.\u201d Bailey, 167 Ill. 2d at 229. But the court also noted that \"Webster\u2019s defines 'follow\u2019 to mean 'to go, proceed, or come after\u2019 and 'to go' after in pursuit or in an effort to overtake.\u2019 \u201d Bailey, 167 Ill. 2d at 229, quoting Webster\u2019s Third New International Dictionary 883 (1986). Even without the \"in furtherance of a threat\u201d language, the \"following\u201d must be \"without lawful justification.\u201d It does not include \"aimless, unintentional, or accidental conduct.\u201d Bailey, 167 Ill. 2d at 229.\nDefendant misapprehends the nature of the assault described in the stalking statute. Following someone may be innocent enough, as one follows taillights on a dark road. But the crime described in this statute requires the State to plead and prove beyond a reasonable doubt that the following was a part of conduct that placed the victim in reasonable apprehension of receiving a battery and so was without lawful justification. This is true under either the threat language of subsection 12 \u2014 7.3(a)(1) or the classical definition of assault in subsection 12 \u2014 7.3(a)(2). In either case, at the end of the State\u2019s case in chief, it must have met its burden of proof for assault.\nDefendant\u2019s car followed closely behind Rios three times. Defendant twice pulled his car next to Rios at a red light and shouted at him. The third time, defendant stayed behind Rios all the way to Renteria\u2019s house, where he parked his car and approached Rios. A person of ordinary intelligence would be on notice that this behavior is \"following.\u201d\nWe also find no merit to defendant\u2019s argument that the statute \"allows arbitrary and discriminatory enforcement of the statute based upon the subjective standards of the decision maker.\u201d A defendant can be legally arrested, prosecuted and convicted only \"where a defendant knowingly and without lawful justification either follows or places a person under surveillance on two separate occasions, and either threatens or assaults that person.\u201d Cortez, 286 Ill. App. 3d at 483. The requirement of two separate incidents accompanied by threat or assault is clear enough to inhibit arbitrary and discriminatory enforcement based on subjective standards.\nWe finally address defendant\u2019s argument that his conviction was based on insufficient evidence. The standard of review when a defendant argues his conviction is based on insufficient evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. People v. Sutherland, 155 Ill. 2d 1, 17, 610 N.E.2d 1 (1992). We will not reverse a conviction unless the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of defendant\u2019s guilt. People v. Jimerson, 127 Ill. 2d 12, 43, 535 N.E.2d 889 (1989).\nDefendant argues that the State did not prove that defendant \"knowingly\u201d followed Rios on January 22 and 28, 1994. A defendant acts \"knowingly\u201d when he is aware of the existence of facts that make his conduct unlawful. People v. Tolliver, 147 Ill. 2d 397, 400, 589 N.E.2d 527 (1992); People v. Gean, 143 Ill. 2d 281, 288, 573 N.E.2d 818 (1991). Defendant argues that he could not have known that his \"following\u201d conduct was unlawful because his conduct did not amount to a violation of the statute until he threatened Rios on a later date.\nThe statute does not require the State to prove that defendant knew his actions were illegal. The State must show only that defendant knew he was following or surveilling Rios. Defendant closely followed Rios three times and tried to communicate with Rios each time. From this conduct a trier of fact could reasonably infer that defendant knowingly followed Rios.\nDefendant also argues that the State did not prove that defendant acted \"without lawful justification.\u201d He argues that because he possesses a \"clear constitutional right to travel freely\u201d he had \"lawful justification\u201d to travel as he did on January 22 and 28, 1994. See Shapiro v. Thompson, 394 U.S. 618, 631, 22 L. Ed. 2d 600, 613, 89 S. Ct. 1322, 1329 (1969); United States v. Guest, 383 U.S. 745, 757-58, 16 L. Ed. 2d 239, 249, 86 S. Ct. 1170, 1177-78 (1966). The issue is not whether defendant had lawful justification to be in or travel to the places where the incidents happened. The issue is whether the facts of the case are such that a trier of fact could conclude that the following was without lawful justification because it placed Rios in apprehension of bodily harm.\nFinally, defendant argues that the State did not prove defendant transmitted a threat to Rios. Defendant notes that in defining the term \"threat\u201d under the Illinois intimidation statute (720 ILCS 5/12 \u2014 6(a) (West 1996)) we have found that the term implies that the threatening expression \"have a reasonable tendency to create apprehension that its originator will act according to its tenor.\u201d See People v. Maldonado, 247 Ill. App. 3d 149, 153-54, 617 N.E.2d 236 (1993) ; People v. Libbra, 268 Ill. App. 3d 194, 198, 643 N.E.2d 845 (1994) . We believe a trier of fact could properly conclude that defendant\u2019s behavior had a \"reasonable tendency to create apprehension\u201d where defendant\u2019s threat to kill Rios was made while banging on the car window after repeatedly following Rios and after having parked so Rios could not leave.\nAffirmed.\nLEAVITT, P.J., and GORDON, J., concur.", "type": "majority", "author": "JUSTICE CAHILL" } ], "attorneys": [ "Marvin Bloom and Marc W. Martin, both of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarh, Robert Robertson, and Tyra Taylor-Bell, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EFRAIN ZAMUDIO, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201495\u20141246\nOpinion filed December 24, 1997.\nMarvin Bloom and Marc W. Martin, both of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarh, Robert Robertson, and Tyra Taylor-Bell, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0976-01", "first_page_order": 996, "last_page_order": 1004 }