FIRST DISTRICT FOURTH DIVISION August 8, 2019

No. 1-16-3247

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) ) No. 14 CR 11107 WALTER WELLS, ) ) Defendant-Appellant. ) The Honorable ) Matthew E. Coghlan, ) Judge, presiding.

JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Gordon and Reyes concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant, Walter Wells, appeals his convictions of aggravated

criminal sexual abuse and aggravated battery in a public place. Defendant was sentenced to two

concurrent terms of three years’ imprisonment. On appeal, defendant contends that the evidence

presented was insufficient to sustain his convictions because (1) the victim’s testimony was

incredible and uncorroborated and (2) the State failed to prove the battery occurred on public

property. Defendant also argues that the Sex Offender Registration Act (SORA) (730 ILCS

150/1 et seq. (West 2014)) violates substantive and procedural due process. For the following

reasons, we affirm. ¶2 I. BACKGROUND

¶3 In June 2014, defendant was indicted in the present case with one count of aggravated

criminal sexual abuse (720 ILCS 5/11-1.60(f) (West 2014)) and two counts of aggravated battery

(id. § 12-3.05(c)) of K.A., a minor at least 13 years old but under 18 years old. At the same time,

defendant was also charged in five other cases involving similar allegations. After his

convictions in the present case, the State nol-prossed the other charges.

¶4 At trial, K.A. testified that from 2011 to 2015, she attended Hubbard High School located

in Chicago, Illinois. She was 19 years old at the time of trial. She identified defendant as a

security guard at the school and a coach of the girls’ swim and water polo teams at her school.

Defendant’s security post was at the back entrance of the school. K.A. testified that in January

2014, K.A. approached defendant to inquire about joining the water polo team. Defendant was

sitting at a desk at the security post at the back entrance. K.A. testified that defendant responded

that practices would start in the coming weeks and that K.A. could join. K.A. testified that she

started to leave, but defendant asked for a hug. K.A. walked around the desk, and defendant

stood up. K.A. testified that as defendant hugged her, he slid his hand down from the middle of

her back and squeezed her left buttock. K.A. testified that no one else was present. K.A. testified

that his conduct made her feel “extremely uncomfortable” and she left.

¶5 K.A. testified that after this incident, she saw defendant around the school but did not

speak to him because she was scared and also had no reason to speak to him. K.A. testified that

in early February 2014, she again spoke to defendant while he was stationed at his post by the

back entrance of the school. K.A. testified that defendant was standing in the doorway of the

entrance and there were other people in the area. K.A. asked defendant when water polo practice

would start; defendant responded that it would start next week or the week after. K.A. testified that defendant then asked, “where’s my hug?” K.A. testified that she gave him a hug, but

attempted to position her arms underneath his to avoid being touched again. K.A. testified that

defendant moved his arm underneath K.A.’s and used his right hand to squeeze her left nipple

with his finger and thumb. K.A. testified that she “smacked his hand away” and then stated, “so

practice starts this upcoming week.” K.A. testified that defendant responded, “yes, or you can

come early and show me what you’ve got, just don’t tell my wife.” K.A. testified that she felt

scared and uncomfortable and she left. K.A. told her mother in early March 2014. She was

interviewed by a detective from the Chicago Police Department on March 4, 2014.

¶6 On cross-examination, K.A. testified that she knew defendant as “Jay” and had seen him

every day for about a year before the January 2014 incident. She testified that defendant did not

ask for a hug or grab her prior to that incident. She believed the January 2014 incident occurred

after school and before softball practice on a Monday or a Tuesday. K.A. believed there were

approximately 1500 students at her school and approximately 500 were still in the building at

3:45 p.m., when the incident occurred, but she could not recall whether any people were around

the back entrance when defendant hugged her. She testified that she did not use the back

entrance every day. Sometimes there was one guard and sometimes there were two guards

stationed there. She did not know if there were security cameras, but she did not observe any

there.

¶7 K.A. testified when defendant hugged her in January, he placed his left hand down her

back and across to her right buttock. She moved his hand away, but she did not say anything. She

told her friend J. what happened. She also testified that she still wanted to join the water polo

team even after the hug. She had been on the swim team during the September to November season. After the incident in February, K.A. did not play or practice on the water polo team. She

testified that the February incident occurred after school.

¶8 K.A. testified that in 2013 to 2014, her boyfriend was D.P. and he was on the swim team.

He was not on the water polo team because he had night school. K.A. testified that the other

coach of the water polo team was defendant’s wife, Robin, who was also a security guard at the

school. Robin coached the girls’ swim team while defendant coached the boys’ swim team. K.A.

testified that she broke up with D.P. after her swim program ended. K.A. denied speaking to

Robin about issues with D.P. She denied that Robin and defendant intervened in her relationship

with D.P. K.A. testified that she and D.P. had issues before any intervention by Robin or

defendant and she did not blame them for the breakup.

¶9 The State presented evidence of other crimes through the testimony of J.O. and A.B. In

that regard, J.O. testified that she attended Hubbard High School from 2010 to 2014 and

identified defendant as a security guard and coach. J.O. testified that defendant was “really

friendly” and a “nice guy” when she met him. J.O. testified that early in her freshman year in

2010, defendant was walking with J.O. to the back entrance before school started and while they

stood in the hallway near the stairs, defendant reached out for a hug. J.O. testified that she

hugged him back, but defendant’s arm swiped across her buttocks. J.O. testified that over time,

defendant asked for approximately more than 50 hugs and swiped his hand across her buttocks

each time. J.O. entered school through the back entrance because that is where the bus dropped

her off. She testified that she eventually told the school counselor, Ms. Jones, but J.O. claimed it

“was just put under the rug.” J.O. later spoke with Detective Lisa Sandoval from the Chicago

Police Department on March 4, 2014. J.O. did not inform Sandoval about telling the school

counselor. ¶ 10 A.B., another student at Hubbard High School, testified that she saw defendant almost

every day, either at the front or rear entrance to the school. A.B. testified that in December 2013

or January 2014, she attended a boys’ basketball game after school with her boyfriend, A. During

the game, A.B. went to the vending machine in the hallway near the back entrance. A.B. testified

that as A. and other students stood nearby, A.B. asked defendant for money to purchase a Pop-

Tart from the vending machine. A.B. explained that defendant usually gave students money if

they asked. A.B. testified that defendant gave her a dollar and asked for a hug. A.B. testified that

when defendant hugged her, his hand trailed down her back and he grabbed her buttocks. A.B.

testified that defendant had given her money on 20 to 30 previous occasions but he had never

hugged her or touched her butt before. A.B. pulled away, purchased the Pop-Tart, and returned to

A., who had observed what had occurred and seemed upset that A.B. did not get angry at

defendant. A.B. testified that in early March 2014, she told the school counselor and the

principal about the incident but only after she had been called into a meeting regarding

defendant.

¶ 11 Sandoval testified that she was assigned to investigate a case involving a security guard at

Hubbard High School on March 3, 2014, which was an ongoing investigation involving at least

four other girls who had complained of inappropriate touching. On March 10 or 18, witnesses

were brought to the office two at a time to be interviewed. Sandoval interviewed each girl

individually, with an assistant state’s attorney and a representative from the Department of

Children and Family Services present. She first talked to K.A. and learned of a prior incident.

Sandoval found a prior report in her computer and learned of the names of four other girls.

Sandoval arrested defendant at his home on May 30, 2014. ¶ 12 The parties stipulated that Nancy Wiley would testify that she was the principal of

Hubbard High School in Chicago from 2010 to 2015, that defendant was employed by the

Chicago Public Schools at Hubbard High School as a security guard and boys’ water polo and

swim coach between 2010 and 2014, and that defendant resigned from the Chicago Public

Schools on June 5, 2014. Defendant moved for a directed finding of not guilty, which the trial

court denied. The defense then rested.

¶ 13 Following closing arguments, the circuit court convicted defendant of all charges. The

circuit court found that the State’s witnesses were credible and had no motive to testify falsely.

The circuit court observed that although there was no corroborating physical evidence, this was

not surprising given the nature of the allegations. The court further found that the investigation

revealed similar allegations involving other girls wherein defendant ingratiated himself to the

girls, gave hugs, and squeezed their buttocks. Concerning the aggravated criminal sexual abuse

charge, the circuit court found that the State had proven that defendant committed the conduct

for the purpose of sexual arousal or gratification based on K.A.’s testimony that defendant told

her to come early to swim practice to “show him what she had” and to not tell his wife. The

circuit court subsequently denied defendant’s motion for a new trial.

¶ 14 At the sentencing hearing, Sandoval testified for the State that three other students

reported similar incidents to her. She testified that although there were security cameras, the girls

were unable to recall the specific days on which the incidents occurred. The victim impact

statement of K.A. and another girl were presented to the court. In mitigation, defendant presented

the testimony of his wife and his mother. Defendant had no criminal background. In allocution,

defendant expressed that he was baffled by the accusations and felt “railroaded” by them. The

State pointed out that defendant had been found guilty, that six high school girls accused him of very similar conduct, and that defendant had resisted arrest. The circuit court found probation

was not appropriate given the number of incidents reported. It merged count II, aggravated

battery, into count I, aggravated criminal sexual abuse, and sentenced defendant to concurrent

terms of three years’ imprisonment on count I and count III. Defendant’s motion to reconsider

sentence was subsequently denied. Defendant filed a timely appeal.

¶ 15 II. ANALYSIS

¶ 16 A. Sufficiency of the Evidence

¶ 17 On appeal, defendant challenges the sufficiency of the evidence supporting his

convictions on two grounds: (1) the trial testimony was uncorroborated and incredible and

(2) with regard to aggravated battery, there was no evidence that the high school was “public

property.”

¶ 18 “[T]he State carries the burden of proving beyond a reasonable doubt each element of an

offense.” People v. Siguenza-Brito,

(2009) (citing Jackson v. Virginia,

(1979)). “Where a criminal conviction is challenged based on insufficient

evidence, a reviewing court, considering all of the evidence in the light most favorable to the

prosecution, must determine whether any rational trier of fact could have found beyond a

reasonable doubt the essential elements of the crime.”

(citing Jackson,

).

“A criminal conviction will not be set aside unless the evidence is so improbable or

unsatisfactory as to create a reasonable doubt of the defendant’s guilt.” Id. at 225. “This standard

of review applies regardless of whether the evidence is direct or circumstantial and regardless of

whether the defendant was tried before the bench or a jury.” People v. Wise,

. ¶ 19 A defendant commits aggravated criminal sexual abuse if he “commits an act of sexual

conduct with a victim who is at least 13 years of age but under 18 years of age and the person is

17 years of age or over and holds a position of trust, authority, or supervision in relation to the

victim.” 720 ILCS 5/11-1.60(f) (West 2014). The term “sexual conduct” is defined as any

knowing “touching or fondling by the victim or the accused, either directly or through clothing,

of the sex organs, anus, or breast of the victim *** for the purpose of sexual gratification or

arousal of the victim or the accused.”

§ 11-0.1. The intent to arouse or satisfy sexual desires

can be established by circumstantial evidence based on the totality of the circumstances, such as

a defendant’s statements and actions. People v. Burton,

(2010); see

People v. Cabrera,

(1987).

¶ 20 The State establishes the offense of aggravated battery based on the location of the

incident upon showing that the defendant committed a battery when “he or she is or the person

battered is on or about a public way, public property, a public place of accommodation or

amusement, a sports venue, or a domestic violence shelter.” 720 ILCS 5/12-3.05(c) (West 2014).

¶ 21 1. Witness Testimony

¶ 22 Defendant argues that the State’s evidence was insufficient because K.A.’s testimony was

not credible, K.A.’s testimony was uncorroborated by physical evidence or eyewitness

testimony, the other victims’ testimony was also incredible, all of the victims failed to

immediately report the incidents, and Sandoval’s testimony was vague.

¶ 23 Reviewing the testimony of K.A. and the other acts witnesses in the light most favorable

to the State, as we must, we conclude that sufficient evidence supported defendant’s convictions

of aggravated battery and aggravated criminal sexual abuse. Defendant argues that K.A.’s

testimony was uncorroborated and she was not credible. However, it is well established that “the testimony of a single witness, if positive and credible, is sufficient to convict, even though it is

contradicted by the defendant.” Siguenza-Brito,

. Unequivocal testimony from a

single complainant, even absent corroborating physical evidence, is sufficient to sustain a

conviction in a sexual crimes case. People v. Le,

(2004) (citing People

v. Morrow,

(1982)).

¶ 24 Here, the circuit court specifically noted that it observed K.A. closely and it found her to

be a credible witness. It is for the trier of fact to determine the credibility of the witness; we will

not second-guess that determination or retry the case on appeal. Siguenza-Brito,

. K.A. was 19 years old at the time of trial and presented clear, unwavering testimony

regarding how the two incidents occurred. She recalled without hesitation defendant’s statements

and actions in squeezing her left buttocks while giving her a hug on one occasion and, on the

other occasion, deliberately moving his arm underneath hers and using his right hand to squeeze

her left nipple with his finger and thumb and inviting K.A. to “show me what you’ve got.”

¶ 25 In addition, contrary to defendant’s argument, the evidence against him did not consist

solely of K.A.’s testimony. Rather, both J.O. and A.B. testified to similar incidents occurring

between them and defendant. The circuit court also found J.O. and A.B. to be credible witnesses.

The evidence thus demonstrated defendant’s pattern and practice of ingratiating himself to

female students using his position as security guard and coach at the school or by giving them

money and then asking for hugs so he could engage in inappropriate touching.

¶ 26 Moreover, the lack of corroborating physical evidence was unsurprising in this case given

the nature of the allegations against defendant. That is, there were no physical injuries sustained

or other physical evidence involved in the acts. As Sandoval’s testimony explained, there was no video evidence despite the presence of security cameras because K.A. and the other female

students could not pinpoint specific dates when the incidents occurred.

¶ 27 Defendant argues that K.A. and the other female students were motivated to testify

falsely. The uncontradicted trial evidence, however, reveals no ulterior motivation of K.A. or the

other two witnesses to concoct allegations against defendant. K.A. specifically denied that she

blamed defendant or his wife for her breakup with her boyfriend. Defendant’s argument in this

regard “again involves a matter for the trial court to consider in evaluating the credibility of the

witnesses.” Le,

. Here, the circuit court specifically held that K.A., along

with the other two female students, had no motivation to testify falsely. We thus reject

defendant’s argument in this respect.

¶ 28 Defendant also contends that the testimony of K.A., J.O., and A.B. should be questioned

because they did not promptly report the incidents and J.O. continued to use the same rear

entrance despite defendant’s post there. Any delay in reporting by K.A. or the other students can

be explained by the fact that they all testified to being embarrassed and scared about the

incidents and the lack of response when the incidents were reported to the school counselor.

Regardless, “[w]hether this delay in making a ‘prompt complaint’ diminishes the probative value

of the accusation is a question for the jury. There is no fixed time limit within which a prompt

complaint must be made.” Morrow,

. Again, we will not substitute our

judgment for the trier of fact, which heard the evidence, observed the demeanor of the witnesses,

and evaluated the effect of any delay in reporting.

In addition, that J.O. continued to use the

same rear entrance despite defendant’s repeated “hugs” can be explained by the fact that J.O.’s

bus let her off at the back entrance to the school. ¶ 29 We further observe that K.A.’s testimony provided sufficient evidence of defendant’s

sexual intent in groping her. K.A. testified that, after defendant pinched her left nipple and she

smacked his hand away, he stated that K.A. could come to practice early to “show me what

you’ve got, just don’t tell my wife.” This statement, coupled with his actions during both

incidents, clearly presented unrefuted evidence of defendant’s sexual intent.

¶ 30 2. Public Property

¶ 31 Defendant next argues that the State failed to establish the aggravating factor of his

aggravated battery conviction, that is, it failed to present any evidence that Hubbard High School

was “public property.”

¶ 32 As stated, the offense of aggravated battery based on the aggravating factor of the

location of the incident requires a showing that the defendant committed a battery when “he or

she is or the person battered is on or about a public way, public property, a public place of

accommodation or amusement, a sports venue, or a domestic violence shelter.” 720 ILCS 5/12-

3.05(c) (West 2014). As such, defendant contends his conviction should be reduced to simple

battery.

¶ 33 Defendant asserts that the State failed to show that the school was open to the public,

which it contends is a necessary component of establishing it is “public property,” relying on

People v. Ojeda,

(2009), and People v. Kamp,

(1985),

from the Second and Third Districts, respectively. Defendant argues that the State presented no

evidence that the high school was government owned, paid for by taxes, or open to the public.

Defendant asserts that although the State presented evidence that Hubbard High School was a

Chicago public high school based on the stipulation that Wiley would testify that defendant was

employed by the Chicago Public Schools as a security guard at the high school, there was no evidence that the school was accessible to the public, and the presence of security guards

indicates that it was not, and the circuit court made no factual finding whether the school was

public property.

¶ 34 The State counters that People v. Hill,

(2011), from the Fourth

District, presents the correct analysis in defining “public property” as “government-owned

property.” The State also argues that the trial evidence showed that Hubbard High School was a

Chicago Public School and was thus public property. Alternatively, the State asserts that this

court may take judicial notice of the fact that the school was a Chicago Public School and

therefore public property.

¶ 35 The aggravated battery statute does not define “public property.” In construing a statute,

our primary goal is to effectuate the intent of the legislature by applying the plain, ordinary

meaning of the statutory language.

. If a term is not defined, we assume the legislature

intended the term to “ ‘have its ordinary and popularly understood meaning.’ ”

(quoting

People v. Beachem,

(2008)). In so doing, we may resort to the dictionary

definition.

We must avoid reading into statutory language exceptions, limitations, or

conditions that would conflict with the plain language and the legislature’s intent.

Issues of

statutory interpretation are reviewed de novo.

¶ 36 In Ojeda, the parties stipulated at trial that the defendant struck a classmate while they

were in a high school and that the school was funded by tax dollars. Ojeda,

. However, the parties disagreed at trial and on appeal as to whether the high school was

“public property” under the aggravated battery statute.

The Ojeda court reasoned that

“property is not public solely because it is funded by local taxpayers. Rather, ‘public’ also refers

to that which is for the public’s use.” (Emphasis in original.)

. The Ojeda court relied on the definition of “public building” in Black’s Law Dictionary: “ ‘[a] building that is

accessible to the public; esp., one owned by the government.’ ”

(quoting Black’s Law

Dictionary 1265 (8th ed. 2004)). Although the stipulated evidence in Ojeda established that the

school was government-owned, the court found it necessary to also show that the “public high

school is for the public’s use.”

The court ultimately found that, although public access was

limited, the public school was still open to the public and thus the elements of aggravated battery

had been satisfied.

.

¶ 37 In discussing the definition of “public property,” the Second District in Ojeda relied on

Kamp,

, in which the Third District Appellate Court found that the trial

evidence established that a battery committed in a park occurred on “public property.” The

defendant in Kamp argued that the State was required to show public ownership of the park.

The Kamp court found that the State presented sufficient evidence of the underlying felony of

aggravated battery in establishing that the park was open to the public, regardless of ownership.

The Ojeda court also cited People v. Ward,

(1981). In Ward, the

Second District found that the State’s amendment of the information to state “public place of

accommodation” instead of “public property” for an aggravated battery that occurred in a hotel

parking lot constituted a formal amendment and not a substantial defect.

It reasoned that “a

battery committed in an area open to the public, whether it be a public way, public property or

public place of accommodation or amusement, constitutes a more serious threat to the

community than a battery committed elsewhere” and

“the essential allegation *** is that the battery occurred in a public area. Whether the

property was actually publicly owned and, therefore, ‘public property’ rather than a privately owned ‘public place of accommodation’ is irrelevant; what is significant is that

the alleged offense occurred in an area accessible to the public.”

¶ 38 In contrast to Ojeda, the Fourth District in Hill,

, found the Second

District’s definition of “public property” too restrictive, i.e., that it must be funded by taxpayers

and open for use by the general public. The defendant in Hill argued that the jail pod where the

battery occurred did not constitute “public property” for purposes of aggravated battery because

it was not open to the public, citing Ojeda.

. The Hill court concluded that the

Second District in Ojeda improperly relied on the definition of “public building” in defining

“public property” under the statute and thus substituted “public space,” “public place,” and area

“open or accessible to the public” for the term “public property.”

. The Fourth District

in Hill observed that “[n]othing indicates the General Assembly meant for the plain and ordinary

meaning of ‘public property’ to be anything other than government-owned property.”

The

Fourth District defined “property” as “ ‘something owned or possessed; *** a piece of real

estate’ ” and “public land” as “ ‘land owned by a government.’ ”

at 454 (quoting Merriam-

Webster’s Collegiate Dictionary 933, 942 (10th ed. 2000)). Accordingly, the court concluded

that “the plain and ordinary meaning of ‘public property’ is property owned by the government.”

Thus, the assault in the jail pod occurred on public property for purposes of the aggravated

battery statute.

The court additionally observed that the jail “is property used for the public

purpose of housing inmates.”

.

¶ 39 Similarly, we observe that in People v. Messenger,

, the

Third District upheld an aggravated battery conviction where the evidence established that the

battery occurred in a county jail owned by the government and was therefore considered public

property. The Messenger court distinguished Kamp and Ward on grounds that, to the extent they characterized ownership as irrelevant, “these discussions were in the context that public property,

for purposes of the statute, need not necessarily be publicly owned.” Id. ¶ 21.

¶ 40 Turning to the present case, and viewing the evidence in the light most favorable to the

State and making all inferences from the evidence in favor of the State, we find it was sufficient

to establish that Hubbard High School was a public school, and as a government-owned entity, it

was therefore “public property” within the meaning the aggravated battery statute. In the present

case, the evidence showed that the battery occurred in Hubbard High School, where K.A. was a

student and defendant was employed. The parties stipulated that Wiley, the principal of the high

school, would testify that defendant was employed by the Chicago Public Schools as a security

guard and coach at Hubbard High School during the relevant time period. In the same way that

the jail in Hill was “public property” that was government owned and used “for the public

purpose of housing inmates,” the high school here was a public school, which was used for the

public purpose of educating children.

¶ 41 Moreover, even utilizing the analysis the Ojeda court applied to the public school at issue

in that case, the evidence here also showed that Hubbard High School was “open to the public,”

even if access was limited. As defendant points out, there were security guards stationed at the

entrances, but there was no evidence that members of the public were completely barred from

entering the public school. Ojeda discussed the fact that public schools are “open to the public”

even if use or access may be restricted to some extent. “[O]ur supreme court has recognized that

public schools are used not only to educate children but, also, to provide space for public

functions.” Ojeda,

; see also People v. Childs,

(1999) (observing that a jail and a courthouse are “public property” under the aggravated

battery and aggravated assault statutes). “Certainly, if a jail is considered ‘public property,’ a public high school, with much less

security and fewer rules in place, is ‘public property.’ Moreover, much like a courthouse,

a public high school has security to keep those inside the facility safe. Courthouses and

public schools implement rules that may deny admittance to some, but those rules are in

place not to restrict the public’s access but to ensure that order is kept.” Ojeda,

.

¶ 42 Although we find the trial evidence sufficient to establish this element of aggravated

battery, we note that the State asks us to take judicial notice of the fact that Hubbard High School

is a public school and therefore public property. In support, the State submits a 2018 school

progress report for the Chicago Public School of Hubbard High School and refers us to the

Chicago Public School’s profile of Hubbard High School on its website. “A reviewing court may

take judicial notice of factual evidence when the facts are capable of immediate and accurate

demonstration by resort to easily accessible sources of indisputable accuracy.” People v.

Spencer,

(2011); see Hill,

(courts can take judicial

notice of a fact even where it constitutes an element of the offense); Ill. R. Evid. 201(f) (eff. Jan.

1, 2011). In Spencer, the appellate court took judicial notice that the high school was a public

school and its parking lot was therefore public property where the State submitted a registration

form for the school. Spencer,

. Although we need not resort to taking

judicial notice in this case, we agree with the State that such an avenue would be available to us.

¶ 43 Accordingly, we find that there was sufficient evidence to prove beyond a reasonable

doubt that defendant was guilty of aggravated criminal sexual abuse and aggravated battery in

that evidence showed he committed the alleged acts and the battery occurred on public property

for purposes of the aggravated battery conviction. ¶ 44 B. Sex Offender Registration Act

¶ 45 Defendant argues that the broad SORA regulations and restrictions imposed on him as a

result of his conviction for a sexual offense violate his substantive due process rights and are

facially unconstitutional. 1 He argues that SORA cannot survive under rational basis or strict

scrutiny review as the SORA requirements are not narrowly tailored to achieve a compelling

state interest or rationally related to the purpose of protecting the public from sex offenders.

Defendant also asserts that the SORA restrictions violate the right to procedural due process as

they fail to afford him an individualized assessment of whether he should be required to register.

¶ 46 On appeal, challenges to the constitutionality of a statute are subject to de novo review.

People v. Mosley,

. We presume a statute is constitutional and a defendant

must overcome this strong presumption by clearly establishing its invalidity.

“A court will

affirm the constitutionality of a statute or ordinance if it is ‘reasonably capable of such a

determination’ and ‘will resolve any doubt as to the statute’s construction in favor of its

validity.’ ” Jackson v. City of Chicago,

(quoting People v. One

1998 GMC,

).

¶ 47 However, we must first address a jurisdictional issue raised by the State. The State

contends that under recent Illinois Supreme Court precedent in People v. Bingham,

, a defendant cannot raise a constitutional challenge to SORA on direct appeal from the

criminal conviction that triggered application of SORA.

¶ 48 In Bingham, the defendant was convicted of theft, which was the conviction on direct

review, but he had a prior conviction from 1983 for attempted criminal sexual assault. Id. ¶ 1.

1 By virtue of defendant’s conviction for aggravated criminal sexual abuse, he is classified as a “sexual predator” under the SORA and subject to its registration requirements and other restrictions. 730 ILCS 150/2(E)(1), 7 (West 2014). Although he was not required to register as a sex offender at the time of the 1983 conviction,

later amendments to SORA imposed a registration requirement upon his subsequent theft

conviction. Id. ¶ 10. On appeal, the defendant challenged the constitutionality of the registration

requirement as applied to him on substantive due process grounds and argued that it violated

ex post facto principles. Id. ¶ 14. The supreme court found it lacked jurisdiction to address the

defendant’s constitutional claims on the merits, reasoning that, in a criminal case, “[a] notice of

appeal confers jurisdiction on an appellate court to consider only the judgments or parts of

judgments specified in the notice.” (Emphases and internal quotation marks omitted.) Id. ¶ 16.

Citing Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967), the court observed that “the scope

of appellate review is defined by the trial court’s judgment and the proceedings and orders

related to it.” Bingham,

. Rule 615(b) provides that a reviewing court may:

“(1) reverse, affirm, or modify the judgment or order from which the

appeal is taken;

(2) set aside, affirm, or modify any or all of the proceedings subsequent to

or dependent upon the judgment or order from which the appeal is taken;

(3) reduce the degree of the offense of which the appellant was convicted;

(4) reduce the punishment imposed by the trial court; or

(5) order a new trial.” Ill. S. Ct. R. 615(b) (eff. Jan. 1, 1967).

¶ 49 The court in Bingham determined that, because the requirement to register under SORA

was not encompassed within the trial court’s judgment of guilt on the theft conviction or any

order of the trial court in that proceeding, the defendant’s constitutional challenge did not ask the

reviewing court to take action available to it under Rule 615(b). Bingham,

. “The requirement that defendant register as a sex offender is not encompassed

within the judgment or any order of the trial court. Thus, defendant’s

argument did not ask a reviewing court to reverse, affirm, or modify the

judgment or order from which the appeal is taken. Nor did it ask to set aside

or modify any ‘proceedings subsequent to or dependent upon the judgment or

order from which the appeal is taken.’ Ill. S. Ct. R. 615(b)(2) (eff. Jan. 1,

1967). The requirement that defendant register as a sex offender cannot be

fairly characterized as a ‘proceeding.’ ”

¶ 50 Accordingly, our supreme court concluded that

“a reviewing court has no power on direct appeal of a criminal conviction to order that

defendant be relieved of the obligation to register as a sex offender when there is neither

an obligation to register imposed by the trial court nor an order or conviction that the

defendant is appealing that is directly related to the obligation or the failure to register.”

Id. ¶ 18.

The court observed that even if it accepted the defendant’s argument that the registration

requirement constituted “punishment,” “it would not be ‘punishment imposed by the trial

court.’ ” Id. The court reasoned that “[a]llowing defendants to challenge the collateral

consequences of a conviction on direct appeal would place a reviewing court in the position of

ruling on the validity (or resolving the details) of regulatory programs administered by state

agencies and officials that are not parties to the action.” Id. ¶ 19. The supreme court explained

that such challenges can instead be brought on direct appeal in a case finding a defendant guilty

of violating a SORA requirement or by pursuing his constitutional claim in a civil suit. Id. ¶ 21. ¶ 51 Based on Bingham, we conclude that we lack jurisdiction to review defendant’s

constitutional challenges to SORA on direct appeal from his criminal convictions. Defendant’s

obligation to register as a sex offender and comply with the other restrictions and requirements

of SORA are collateral consequences of his convictions. Id. ¶¶ 10, 19. As a result, they were not

imposed by the trial court or embodied in its judgment. “[C]ollateral consequences are effects

upon the defendant that the trial court has no authority to impose and that result from an action

that may or may not be taken by an agency that the trial court does not control.” People v. Denis,

(citing People v. Delvillar,

(2009)). The trial

court’s order sentencing defendant in this case does not require him to register as a sex offender

under SORA. Our scope of review on appeal is confined to the trial court’s judgment (and

related proceedings and orders) under Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967). As

such, defendant’s arguments that challenge the collateral consequences of his conviction, which

were not imposed by the trial court and were not part of its judgment, are beyond our scope of

review, and we therefore dismiss them. The trial court did not impose upon defendant the

obligation to register as a sex offender, and this appeal has no direct relation to the obligation to

register, failure to register, or failure to abide by any other SORA requirements.

¶ 52 Defendant argues that Bingham is distinguishable because, in that case, the sex offense

that resulted in his registration requirement was not the conviction on appeal before the court.

Defendant contends that in contrast, the requirement to register as a sex offender and comply

with other aspects of SORA were triggered by his conviction of criminal sexual abuse and are

thus part of the judgment being appealed in this case as that is the conviction on direct review

and the requirements are directly related to his conviction of criminal sexual abuse. We disagree

with defendant’s argument. Several cases from the First District have found Bingham controls under the same circumstances presented here. See People v. Christian,

(on direct appeal from his conviction of aggravated criminal sexual abuse, the

court dismissed the defendant’s arguments that SORA violated his substantive and procedural

due process rights and was punitive and violated the proportionate penalties); People v.

McArthur,

, ¶¶ 42-46 (on direct appeal from his conviction of

aggravated criminal sexual abuse, the court dismissed the defendant’s facial and as-applied

constitutional challenges to SORA); Denis,

(on direct

appeal from his convictions of criminal sexual assault and aggravated criminal sexual abuse, the

court found no jurisdiction to review the defendant’s challenges to SORA on procedural and

substantive due process grounds). As the Bingham court observed, defendant may obtain relief

from his obligation to register and comply with SORA by securing reversal of his convictions

that triggered his SORA obligations or pursuing a civil suit. Bingham,

. 2

¶ 53 III. CONCLUSION

¶ 54 For the reasons set forth above, we affirm the judgment of the circuit court.

¶ 55 Affirmed.

2 Even if we had jurisdiction to consider defendant’s arguments, we observe that Illinois courts have repeatedly held that SORA does not affect fundamental rights, SORA is rationally related to a legitimate state interest of protecting the public from sex offenders, and no additional procedures are necessary to comply with procedural due process rights. See In re J.W.,

(2003) (no violation of substantive due process); People v. Cornelius,

(2004) (finding no substantive due process violation as there was a rational basis for requirement of disclosing sex offender registration information online); People v. Avila-Briones,

(SORA did not impact fundamental rights or violate substantive or procedural due process rights of the defendant); People v. Lee,

(SORA does not implicate a fundamental right and did not violate defendant’s substantive or procedural due process rights); People v. Parker,

(SORA statutory scheme does not violate due process); People v. Rodriguez,

, ¶¶ 30-35 (SORA statutory scheme is not punitive, SORA is not facially unconstitutional as it is rationally related to legitimate government interest of protecting public from sex offenders, and it is not unconstitutional as applied to defendant); In re A.C.,

(SORA does not implicate a fundamental right, application to a juvenile offender was rationally related to a legitimate state interest, and registration and notification requirements did not violate procedural due process). No. 1-16-3247

Cite as: People v. Wells,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 14-CR- 11107; the Hon. Matthew E. Coghlan, Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Pamela Rubeo, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg and Mary L. Boland, Assistant State’s Attorneys, of Appellee: counsel), for the People.