No. 1-17-0837 Order filed September 30, 2020 Sixth Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 15 CR 17207 ) DONALD LEIB, ) Honorable ) Kerry M. Kennedy, Defendant-Appellant. ) Judge presiding.

JUSTICE GRIFFIN delivered the judgment of the court. Justice Connors concurred in the judgment. Presiding Justice Mikva dissented.

ORDER

¶1 Held: Defendant’s conviction for being a child sex offender in a school zone is affirmed where the property at issue fell within the statute’s purview and the State established that he knew he was on restricted property.

¶2 Following a bench trial, defendant Donald Leib was found guilty of being a child sex

offender in a school zone and sentenced to one year in prison. On appeal, defendant contends 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,” and even if the property at issue were school

property, the State failed to establish that defendant knew he was on restricted property. We affirm. No. 1-17-0837

¶3 Following his arrest, defendant was charged with one count of violating section 11-9.3(a)

of the Criminal Code of 2012 (Code) (720 ILCS 5/11-9.3(a) (West 2014)), in that he, a child sex

offender, knowingly was on the real property of Queen of Martyrs School and knew that persons

under the age of 18 were present.

¶4 Reverend Edward Mikolajczyk testified that he was the pastor of Queen of Martyrs Parish

in Evergreen Park. The parish includes a church at 103rd Street and Central Park Avenue, a school

with a connected gym at 3550 West 103rd, and a rectory at 10233 Central Park. There is a parking

lot on 103rd and St. Louis Avenue (St. Louis parking lot), adjacent to the gym, which is school

property. Between September 24 and September 26, 2015, the parish held a festival to raise funds

for the church and school which included rides for children in the St. Louis parking lot.

¶5 During cross-examination, Mikolajczyk testified that he, along with a committee of

parishioners, staged the festival. He admitted that a flyer advertising the festival did not state that

it was a school function. A raffle was held as part of the festival, but was not directed by the school.

The festival was “under auspices” of Queen of Martyrs and “people understand [it] as being the

parish and the school fundraiser.”

¶6 Defense counsel then showed Mikolajczyk several photographs of the buildings

comprising the parish complex, which are included in the record on appeal. Mikolajczyk first

identified a photograph of the “grounds of the parish and the school” which also showed the public

streets surrounding the complex. The St. Louis parking lot is separated from the school and church

by St. Louis Avenue, a public street. Students have recess in a parking lot next to the school or in

the St. Louis parking lot. Directly across the street from the St. Louis parking lot is the gym, Queen

of Martyrs John Vitha Hall (Vitha Hall). Mikolajczyk acknowledged that the school’s name is not

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displayed on the gym building. He also identified a sign on the corner of the St. Louis parking lot

advertising bingo. The church controls the St. Louis parking lot and gives permission for its use.

When defense counsel asked whether the school would have to ask permission to use the lot,

Mikolajczyk responded that the school and the church were “synonymous,” and the church would

“take care of it.”

¶7 The photographs show that the church is a block from the St. Louis parking lot. Moreover,

the school building sits between the church and the St. Louis parking lot.

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

which served prekindergarten through eighth grade. 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 younger children were in the St. Louis parking lot. St. Louis Avenue was blocked off and

attractions were located in the alley between the school and convent, which led to another parking

lot. 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 that children’s games

were located in the St. Joseph’s room inside the school. While the sign in the St. Louis parking lot

advertising bingo does not mention the school, the church gives some of the bingo proceeds to the

school. Vitha Hall, which is separated from the St. Louis parking lot by a public street, houses both

bingo and student gym activities. Tomaszewski told a defense investigator in August 2016 that the

school did not currently use the St. Louis parking lot for recess, but for student dropoff and pickup,

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parking for athletic events, scout meetings, and car washes. She did not believe there was a sign

indicating that it was the lot where children were dropped off. As principal, Tomaszewski was

permitted to use the parking lot at “any time.”

¶ 10 Jeanne Cassidy, defendant’s neighbor, testified that she knew that he was a registered sex

offender. On September 26, 2015, she was at the festival with her husband and six-year-old son

when she saw defendant across the street from the school gym, in the corner of the St. Louis

parking lot, in front of a children’s carnival ride. According to Cassidy, “hundreds” of children

were present. Cassidy told her husband that she did not think defendant should be there since he

was a sex offender, and her husband notified a Chicago police officer. Cassidy located a picture of

defendant on her phone and showed it to the officer, who then spoke to defendant. She also made

a report to the Evergreen Park Police Department. When Cassidy went to defendant’s home the

following day to tell him that she had reported him to the police, he said he understood her concerns

and was at the festival with his brother’s family.

¶ 11 Chicago police officer Daniel McGreal testified that he stopped by the “carnival held by

the school” to see his family while on duty. After a woman shared concerns about defendant’s

presence, he approached defendant, asked for identification, and ran defendant’s information. The

search revealed no warrants and gave no further information about defendant’s background.

However, McGreal told defendant he should not be at the festival. Defendant agreed and left.

McGreal only saw defendant in the St. Louis parking lot, not across the street where the gym,

church, and school were located.

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¶ 12 The State entered a stipulation that defendant was convicted of child abduction in case 06

CR 04312 and required to register as a child sex offender. Defense counsel then stated that the

conviction was for “attempted luring.”

¶ 13 At the close of the State’s case, the defense moved for a directed finding, arguing that the

State had not established beyond a reasonable doubt that defendant knew that the St. Louis parking

lot was school property, and “for all appearances” the parking lot was church property. Defense

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

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

was a school fundraiser on property used for school functions. The trial court denied the motion.

¶ 14 The defense presented the testimony of Robert Pellegrini, the festival chairperson.

Pellegrini identified a photograph of “the parish parking lot” on St. Louis Avenue with the bingo

sign on the corner. He acknowledged that the flyer did not state that the festival was for a “school

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

¶ 15 Robert Leib, defendant’s brother, testified that he invited defendant to attend the festival.

Robert is a Queen of Martyrs parishioner. He identified a photograph of the St. Louis parking lot

as “the church parking lot,” and believed it was church, not school, property. While at the festival,

Robert and defendant were approached by a police officer who asked defendant if he was a sex

offender. After running defendant’s identification, the officer told them to leave because people

were uncomfortable. During cross-examination, Robert acknowledged that defendant’s status as a

sex offender prohibited him from being around children in a school area but asserted that the

festival was a “church carnival.” During redirect, Robert testified that he would not have brought

defendant if he did not believe the festival was a church function.

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¶ 16 Irene Smith, the business manager for Queen of Martyrs parish, testified that the church

owned the St. Louis parking lot. The church and the school cannot be differentiated because the

two entities share the same federal identification number. Bingo players and people attending

functions in the gym park in the St. Louis parking lot.

¶ 17 The defense entered a stipulation that the Evergreen Park Police Department incident report

in this case identified the premises as “church, synagogue or slash temple.” The defense also

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

the court permitted.

¶ 18 In finding defendant guilty, the court noted that although the defense theory of the case

was that a difference existed between school and church property, Mikolajczyk was “pretty clear”

that it was “all one.” The court also noted that section 11-9.3(a) of the Code included the phrase

“school zone,” and that testimony established St. Louis Avenue was blocked off for the festival,

which to the court meant that the St. Louis parking lot was part of the school zone for the day.

¶ 19 Defendant filed a motion and memorandum in support of a new trial alleging the State

failed to prove beyond a reasonable doubt that the St. Louis parking lot was real property

comprising a school and that defendant knew it was such. The trial court denied the motion. After

a hearing, the court sentenced defendant to one year in prison.

¶ 20 On appeal, defendant contends that his conviction should be reversed because the State did

not prove beyond a reasonable doubt that the St. Louis parking lot was “real property comprising

any school.” He further argues that even if the St. Louis parking lot were school property within

the meaning of the statute, the State failed to prove his knowledge beyond a reasonable doubt.

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¶ 21 When a challenge is made to the sufficiency of the evidence at trial, a reviewing court must

determine whether any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. People v. Baskerville,

. In making this

determination, we review the evidence in the light most favorable to the State.

All reasonable

inferences from the record in favor of the prosecution will be allowed. People v. Bush,

(2005). A trier of fact is not required to disregard inferences which flow normally from

the evidence before it or seek out any “possible explanations consistent with innocence and raise

them to a level of reasonable doubt.” People v. Campbell,

(1992).

¶ 22 As a child sex offender, defendant is prohibited from knowingly being 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,” unless he is attending a conference at a school concerning

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

¶ 23 Defendant does not contest that he is a child sex offender or that he is barred from being

present on “real property comprising any school”; rather, he contends that the St. Louis parking

lot does not qualify within the meaning of the statute because it is separated from the school and

gym by a public street. The State, on the other hand, contends that the St. Louis parking lot is real

property comprising part of Queen of Martyrs school. The parties agree that the statute does not

state whether a parking lot is real property comprising a school and that no Illinois court has

answered the question. Consequently, before reaching defendant’s challenge to the sufficiency of

the evidence, we consider whether the St. Louis parking lot may qualify as “real property

comprising any school” as a matter of law.

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¶ 24 This issue presents a question of statutory construction which we review de novo. People

v. Lloyd,

. When construing a statute, our primary objective “is to ascertain

and give effect to the intent of the legislature,” and the “most reliable indicator of legislative intent

is the language of the statute.” People v. Boyce,

. “In the event there is an

ambiguity, the rule of lenity requires that it be resolved in a manner that favors the defendant;

however, this rule must not be stretched so far as to defeat the legislature’s intent.” (Internal

quotation marks omitted.)

“In the course of statutory construction, we may consider the reason

for the law, the problems sought to be remedied, the purposes to be achieved, and the consequences

of construing the statute one way or another.”

¶ 25 Defendant is correct that the statute does not define what is included in “real property

comprising any school.” See 720 ILCS 5/11-9.3(a) (West 2014). The Code, however, defines a

“school” as “a public, private, or parochial elementary or secondary school, community college,

college, or university and includes the grounds of a school.” 720 ILCS 5/2-19.5 (West 2014).

“Grounds” are defined as “the area around and belonging to a house or other building.” Merriam-

Webster Dictionary, https://www.merriam-webster.com/dictionary/grounds (last visited Aug. 13,

2020).

¶ 26 Accordingly, because the Code’s definition of school includes its grounds, i.e., the area

around and belonging to school buildings, we conclude that the parking lot of a school would

qualify as part of the school grounds pursuant to the Code. Therefore, a school parking lot qualifies

as “real property comprising any school” under section 11-9.3(a). Applying the statute to a

school’s parking lot, where students congregate, works to achieve the statute’s purpose to keep

child sex offenders away from school grounds where children congregate. See Boyce, 2015 IL

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117108, ¶ 15 (when construing a statute, a court “may consider the reason for the law, the problems

sought to be remedied, the purposes to be achieved, and the consequences of construing the statute

one way or another”). To construe the statute such that parking lots are not included in school

grounds, and therefore, not off-limits to child sex offenders, would end the statute’s reach at the

door to the school and contradict the definition of school which includes its grounds.

¶ 27 In his brief, defendant concedes that a school parking lot could qualify as “real property

comprising any school,” but only in those cases where the parking lot is contiguous to the school

building. We note, however, that section 11-9.3(a) of the Code does not include a requirement that

all real property comprising a school be contiguous, and we decline to read such a requirement

into the statute. See People v. Shinaul,

(“Absent express language in the

statute providing an exception, we will not depart from the plain language and read into the statute

exceptions, limitations, or conditions that the legislature did not express.”). To exclude the portions

of school grounds that are separated from physical buildings by public streets would be counter to

the statute’s intent, to prevent the presence of child sex offenders on school grounds where children

congregate, solely based on the fact that certain grounds do not touch school buildings and fail to

recognize the reality of urban school campuses.

¶ 28 Having determined that a school parking lot is “real property comprising any school” under

section 11-9.3(a) of the Code, we now turn to whether the evidence at trial established that the St.

Louis parking lot qualified within the meaning of the statute. Here, taking the evidence in the light

most favorable to the State, a rational trier of fact could have found that the St. Louis parking lot

qualified when evidence established that it was used for student dropoff and pickup, recess, and

parking for athletic events, scout meetings, and car washes. Although defendant contends that the

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fact that the St. Louis parking lot was separated from the school buildings by a public street was

fatal to the State’s case, we disagree. As discussed above, there is no requirement in the Code that

school grounds be contiguous, and we decline to read such a requirement into the statute.

¶ 29 In the alternative, defendant contends that even if the St. Louis parking lot were “real

property comprising any school,” the State failed to prove that he knowingly violated the statute.

Defendant again notes that the St. Louis parking lot is across a public street from the school

buildings and had a sign advertising bingo. He further argues that the festival flyer did not indicate

that it was a school event. Defendant concludes that no rational trier of fact could have found that

he was consciously aware that the St. Louis parking lot was “real property comprising any school.”

¶ 30 For purposes of section 11-9.3(a) of the Code, “knowledge” means that a defendant was

“consciously aware” that he was on real property comprising a school, or that he was aware “of

the substantial probability” that he was on such property. 720 ILCS 5/4-5(a) (West 2014).

Knowledge is a question of fact for the trier of fact to decide. People v. Fernandez,

(1990). A defendant’s knowledge is generally established by circumstantial evidence

rather than direct proof. People v. Weiss, 263 Ill. Ap. 3d 725, 731 (1994). In other words, a

defendant’s knowledge that he was present on real property comprising a school “can be inferred

from the surrounding facts and circumstances, which would lead a reasonable person to believe”

such. People v. Frazier,

.

¶ 31 In this case, a rational trier of fact could have found that defendant knew that he was present

on real property comprising a school when Queen of Martyrs Parish’s pastor and business manager

both testified that the school and church were one entity and the parish operated an elementary

school on the grounds. Moreover, although the flyer advertising the festival did not explicitly state

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that it was a function to benefit both the church and school, the flyer did state that children’s games

were available in the St. Joseph’s room, which was located in the school. Considering that the

festival’s purpose was to raise funds for a parish that included a parochial elementary school, and

“hundreds” of children were present, a reasonable person could infer that the parking lot where the

rides for young children were located was school property.

¶ 32 We thus agree with the trial court’s determination that, considering the rides and the many

children present at the festival, defendant had knowledge that the St. Louis parking lot was real

property comprising a school. Although defendant’s brother testified that he believed the festival

was a church function and there was evidence that the St. Louis parking lot did not bear “school”

signage, a trier of fact is not required to disregard the inferences that normally flow from the

evidence or to seek out all possible explanations consistent with a defendant's innocence and

elevate them to reasonable doubt. In re Jonathon C.B.,

.

¶ 33 Although the dissent concludes that “there is no way” that defendant could have known

that the St. Louis parking lot was “real property comprising any school,” the surrounding facts and

circumstances in this case would have lead a reasonable person to believe that he was on real

property comprising a school. Here, the school was situated between the St. Louis parking lot and

the church, such that the church was a block away from the St. Louis parking lot. Additionally, the

festival flyer advertised children’s activities in a room located in the school, the street separating

the St. Louis parking lot from Vitha Hall and the school was closed during the festival, and the St.

Louis parking lot hosted carnival rides for children. Moreover, although defendant’s brother

testified that he believed the festival was a church function, Mikolajczyk testified that the festival

was “underst[ood] as being the parish and the school fundraiser.” Considering the circumstances

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of this case, we cannot say that no trier of fact could found that defendant was aware of the

substantial probability that the St. Louis parking lot was real property comprising a school.

¶ 34 We reverse a conviction only when the evidence was “so unreasonable, improbable, or

unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.” People v. Brown,

. This is not one of those cases. Accordingly, we affirm defendant’s conviction.

¶ 35 For the forgoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 36 Affirmed.

¶ 37 Mikva, Presiding J., dissenting.

¶ 38 I agree with the majority that a rational trier of fact could have found, based on the

evidence presented and despite the conflicting testimony, that the parking lot where the festival

occurred was part of the grounds of the school and that, therefore, Mr. Leib was prohibited from

being there when “persons under the age of 18 [were] present.” 720 ILCS 5/11-9.3(a) (West 2014).

¶ 39 The trial judge’s actual finding was that Mr. Leib was in a “school zone,” which is not

what the statute requires, although “school zone” is in the title of the statute. Instead, the statute

prohibits Mr. Leib from being present on “real property comprising a school” and the Code defines

“school” as “a public, private, or parochial elementary or secondary school, community college,

college, or university and includes the grounds of a school.” 720 ILCS 5/2-19.5 (West 2014). The

majority apparently equates “school zone” and school “grounds,” and I can accept this equivalency

along with the majority’s conclusion that the evidence supports the trial court’s factual finding that

the festival took place on “real property comprising a school.”

¶ 40 However, as both the majority and the trial court acknowledge, Mr. Leib was not in

violation of the statute unless the evidence also showed that he knew that he was on school grounds

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when he was present with his brother at the festival. On this necessary element, there was no

evidence and no proper factual finding by the court to which we should defer.

¶ 41 There was no testimony that any sign on the school, at the festival, or on the festival flyer

would have advised Mr. Leib that he was on school property. Indeed, the witnesses themselves

disagreed about whether the parking lot where the festival occurred was part of the school or part

of the church. Irene Smith, the business manager for the church, testified that the parking lot had

been considered “church” property for the 20 years she had worked there. The police report also

listed the location of the festival as a “church synagogue or temple.” The 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 Mr. Leib knew that this was school

property. And, of course, Robert Leib, testified that he had invited his brother to attend the festival

believing that the parking lot where the festival occurred was church, rather than school, property.

In short, there is simply no way that Mr. Leib 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.

¶ 42 The trial court’s finding, to which we would, of course, generally defer, simply is not a

finding that the evidence demonstrated that Mr. Leib had this knowledge. Instead, the trial court

found that the parking lot was part of the “school zone,” and then concluded that it “did not see

how any reasonable person, especially a convicted sex offender, would not realize that.”

¶ 43 This was not a factual finding that Mr. Leib had actual knowledge that he was on school

grounds. Rather, it appears to be a conclusion by the trial court that Mr. Leib should have known

where he was. As we have made clear, however, where, as here, a criminal statute requires that the

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defendant act with knowledge: “[k]nowledge” is not the same as “should have known.” People v.

Nash,

(1996).

¶ 44 The majority concludes that Mr. Leib’s knowledge that he was present on real property

comprising a school “can be inferred from the surrounding facts and circumstances, which would

lead a reasonable person to believe” that he was on school property, citing our decision in People

v. Frazier,

. However, this case is a stark contrast to Frazier. In

that case, we noted:

“The subject motor scooter did not have a license plate, and the ignition had been removed.

In describing the missing ignition, [a witness] testified that the motor scooter was ‘busted

straight down the middle with a big hole’ where the ignition should have been. Any

reasonable person would have noticed a big hole in the middle of the motor scooter and

would have concluded that a motor scooter with a busted out ignition and no license plate,

was stolen.” Id. ¶ 24.

¶ 45 The only circumstance that the majority can point to here as making a necessary

condition similarly obvious is the fact that many children were present. But it is not at all

surprising that children were present at a festival with rides and games designed specifically for

them, and certainly a school is not the only place that children congregate. The majority also

cites the fact that a flyer indicated that these games for children were in the St. Joseph’s room

and that there was testimony that the St. Joseph’s room is in the school. To me this only

underscores the fact that the evidence did not show that the flyer said anything about the St.

Joseph’s room being in a school, that Mr. Leib ever went near the St. Joseph’s room, that Mr.

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Leib ever came in contact with the school building itself, or that he saw any sign that indicted he

was in or even near a school.

¶ 46 In my view, both the trial court and the majority are simply assuming that Mr. Leib

knowingly came onto school grounds. Such an assumption—even if it were rational—cannot

take the place of evidence. Moreover, I do not find it to be a rational assumption. Mr. Leib was

compliant with the draconian requirements of the sex offender registration laws for eight years.

One thing he certainly knew was that school grounds were off limits to him—while festivals

were not. I am unwilling to assume that he knew that a festival that was being held in a parking

lot, where there was no signage to indicate a school, was actually on school grounds. I would

reverse this conviction.

¶ 47 I respectfully dissent.

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