                           ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Farmer, 2011 IL App (1st) 083185




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    FREDDIE FARMER, Defendant-Appellant.


District & No.             First District, Third Division
                           Docket No. 1–08–3185


Filed                      June 1, 2011


Held                       The constitutionality of section 32–5.3 of the Criminal Code, creating the
(Note: This syllabus       offense of falsely representing oneself to be the parent, legal guardian or
constitutes no part of     other relation of a minor child to a public employee, was upheld over
the opinion of the court   defendant’s contention that the statute was unconstitutionally overbroad
but has been prepared      and criminalized constitutionally protected speech, and his contention
by the Reporter of         that his counsel was ineffective also was rejected, since the State has a
Decisions for the          compelling interest in safeguarding minors, the State’s proposal to limit
convenience of the         the application of the statute to false statements given knowingly and
reader.)
                           with the intent of deceiving the relevant public official or employee
                           advanced the State’s interest in protecting minors while limiting the
                           punishment of speech to cases where a person knowingly deceives a
                           public official or employee to frustrate the operations of government in
                           the protection of minors, and although defense counsel’s repeated
                           statements at trial that defendant was “not a saint” may have suggested
                           that defendant was involved in other criminal activities, it reflected a trial
                           strategy suited to the evidence against defendant, and given that evidence,
                           there was no reasonable probability that counsel’s performance affected
                           the trial’s result.
Decision Under             Appeal from the Circuit Court of Cook County, No. 02–1213446; the
Review                     Hon. Anthony A. Iosco, Judge, presiding.



Judgment                   Affirmed.


Counsel on                 Michael J. Pelletier, Patricia Unsinn, and Jessica Wynne Arizo, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                           Annette Collins, Tasha-Marie Kelly, and Gino Betts, Jr., Assistant State’s
                           Attorneys, of counsel), for the People.


Panel                      JUSTICE STEELE delivered the judgment of the court, with opinion.
                           Presiding Justice Quinn and Justice Neville concurred in the judgment
                           and opinion.




                                           OPINION

¶1              Following a jury trial in the circuit court of Cook County, defendant Freddie Farmer
        was found guilty of falsely representing himself or herself to be the parent, legal guardian or
        other relation of a minor child to a public employee, which in this case was a police officer
        (720 ILCS 5/32–5.3 (West 2002)). Farmer was sentenced to 364 days in the Cook County
        Department of Corrections. Farmer now appeals, arguing: (1) the false personation statute
        violates the first and fourteenth amendments to the United States Constitution (U.S. Const.,
        amends. I, XIV); and (2) he received ineffective assistance of counsel at trial. For the
        following reasons, we reject both claims and affirm the judgment of the trial court.

¶2                                        BACKGROUND
¶3              The record on appeal discloses the following facts. At trial, Victoria C. testified that
        her daughter, L.W., ran away in March 2002, when she was a 12-year-old. Victoria C. filed
        a missing person report with the Chicago police department. The story was featured on the
        local Channel 5 news and a police program. Victoria C. further testified she did not know
        Farmer, she had not given him permission to care for her daughter, and he was not related
        to her or her daughter.
¶4              Chicago police officer O’Neal testified that on June 1, 2002, at approximately 3 p.m.,

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       he and Officer Clarence Williams were on routine foot patrol, in uniform, in an open area
       shopping mall located on 63rd and Halsted Street. A store employee alerted the officers that
       he saw a girl who was featured on Crime Watch as a missing person in the mall, and he
       pointed her out to them. The girl, who was identified as L.W., was wearing a black spandex
       halter-top, black spandex pants, high heels, and makeup on her face.
¶5              Officer O’Neal testified that he asked Farmer, who was walking with L.W., who she
       was and Farmer responded, “Shanetta Thompson” or “Shanetta Tomson,” his 16-year-old
       cousin. Officer Williams also testified Farmer said L.W. was his cousin, “Shauna Tompson,”
       but denied Farmer said the girl was 16 years old. The officers asked about the girl’s clothing,
       to which Farmer reportedly stated her mother did not mind. Both O’Neal and Williams
       testified Farmer stated she had lived with him and his mother for two years.
¶6              When Officer O’Neal told Farmer they should go to the police station for further
       questioning to “finish this up,” Farmer responded “Fuck this,” dropped his shopping bags,
       and ran. Officer Williams yelled at Farmer to stop running three times, then gave chase and
       arrested him after Farmer ran into the door of a police car. Following his arrest, Farmer and
       L.W. were taken to the police station, where Farmer continued to proclaim L.W. was his
       cousin. After learning of L.W.’s identity from the youth division, the police returned L.W.
       to her mother.
¶7          During the cross-examination of Officer O’Neal, defense counsel noted Farmer’s
       statement that he had been living with L.W. for two years did not tell the police anything
       about their relationship. Officer O’Neal replied, “Other than he is a liar.” Defense counsel
       also asked whether Farmer’s statements to a Detective Doyle would shed light on the truth
       of the case. Officer O’Neal replied that he did not know, because Detective Doyle was
       investigating whether Farmer had sex with L.W., which was outside the scope of O’Neal’s
       investigation. Defense counsel then asked whether the criminal complaint contained a rape
       charge. Officer O’Neal admitted there was no such charge as of that day.
¶8              During the cross-examination of Officer Williams, defense counsel asked him why
       people generally run from the police. Officer Williams responded that sometimes it is out of
       fear, but most of the time it is because they had done something wrong. Defense counsel then
       asked Officer Williams if he checked to see whether Farmer’s shopping bags contained any
       stolen items. Officer Williams replied that he had not. When defense counsel attempted to
       ask Officer Williams what a teenage girl dressed like L.W. was likely to be doing for money,
       the trial judge sustained the State’s objection to the question.
¶9              The State rested its case. The defense moved for a directed finding, which the trial
       court denied. The defense rested without presenting any evidence or witnesses.
¶ 10            During closing arguments, defense counsel repeatedly stated that Farmer was “not
       a saint.” Defense counsel also suggested that Farmer may have been engaged in some other
       type of wrongdoing at the time of his arrest. Following closing arguments and issuance of
       jury instructions, the jury deliberated and found defendant guilty of false personation.
¶ 11            On February 6, 2003, the circuit court sentenced defendant to the maximum 364 days
       in the Cook County Department of Corrections, including eight months of day-for-day credit.
       On the same day, Farmer’s counsel filed a posttrial motion for a new trial stating the State’s

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       evidence failed to prove Farmer guilty beyond a reasonable doubt.
¶ 12           On October 21, 2008, the case returned to the trial court’s docket for a hearing on
       Farmer’s motion for a new trial. At that time, defense counsel explained he filed an original
       motion for a new trial on the day of the initial verdict, but asked to postpone the hearing so
       that he could obtain copies of a transcript from a hearing on a motion to suppress statements
       that took place prior to the trial. Counsel explained he attempted to secure the transcripts for
       years before he was informed the court reporter had died and the transcripts could not be
       located. The circuit court denied defendant’s motion for a new trial on October 21, 2008. A
       timely notice of appeal was filed on November 19, 2008.

¶ 13                                         DISCUSSION
¶ 14                                      I. False Personation
¶ 15            Farmer first argues that his conviction for false personation must be vacated, because
       the statute violates the first and fourteenth amendments to the United States Constitution.
       U.S. Const., amends. I, XIV. Section 32–5.3 of the Criminal Code of 1961 (Code) provided1:
            “A person who falsely represents himself or herself to be the parent, legal guardian or
            other relation of a minor child to any public official, public employee, or elementary or
            secondary school employee or administrator commits a Class A misdemeanor.” 720
            ILCS 5/32–5.3 (West 2002).
       Farmer contends that the statute is unconstitutionally overbroad and criminalizes
       constitutionally protected speech. Although defendant raises his constitutional claim for the
       first time in this appeal, the constitutionality of a criminal statute generally can be raised at
       any time. See In re J.W., 204 Ill. 2d 50, 61 (2003). The constitutionality of a statute is a
       question of law, which we review de novo. People v. McCarty, 223 Ill. 2d 109, 135 (2006).
¶ 16            In considering a challenge to the constitutionality of a statute, we begin with the
       presumption that all statutes are constitutional. People v. Waid, 221 Ill. 2d 464, 480 (2006).
       If reasonably possible, a statute must be construed so as to affirm its constitutionality and
       validity. People v. Greco, 204 Ill. 2d 400, 406 (2003). The burden of rebutting that
       presumption is on the party challenging the law’s validity. City of Chicago v. Pooh Bah
       Enterprises, Inc., 224 Ill. 2d 390, 406 (2006). Accordingly, we will resolve any doubts as to
       the construction of a statute in favor of its validity. People v. Dabbs, 239 Ill. 2d 277, 292
       (2010).
¶ 17            Generally, a person to whom a statute may be constitutionally applied is not allowed
       to challenge the statute solely on the grounds that it could, in another context, be applied
       unconstitutionally to another person. People v. Williams, 235 Ill. 2d 178, 199-200 (2009).
       The exception is in first amendment cases, where the concern that the constitutionally
       protected activity may be deterred or chilled allows a statute to be challenged as overbroad.
       Virginia v. Hicks, 539 U.S. 113, 119 (2003). However, this constitutional concern must be


1

       The statute has since been repealed. See Pub. Act 96–1551 (eff. Mar. 10, 2011).

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       counterbalanced with the “substantial social costs created by the overbreadth doctrine when
       it blocks application of a law to constitutionally unprotected speech” or conduct. (Emphasis
       in original.) Hicks, 539 U.S. at 119. In order to maintain the appropriate balance, a statute’s
       overbreadth must be “substantial, not only in an absolute sense, but also relative to the
       statute’s plainly legitimate sweep.” (Emphasis in original.) United States v. Williams, 553
       U.S. 285, 292 (2008). Invalidating a statute for overbreadth is a strong step, not to be
       casually undertaken by a court. Williams, 553 U.S. at 293 (and cases cited therein). Thus, a
       statute is deemed overbroad only if it: (1) criminalizes a substantial amount of protected
       behavior, relative to the law’s plainly legitimate sweep; and (2) is not susceptible to a
       limiting construction that avoids constitutional problems. People v. Hill, 333 Ill. App. 3d
       783, 786 (2002). “Facial overbreadth has not been invoked when a limiting construction has
       been or could be placed on the challenged statute.” Broadrick v. Oklahoma, 413 U.S. 601,
       613 (1973).
¶ 18           When considering a claim of overbreadth, we must first determine whether the statute
       inhibits conduct protected by the first amendment. Hill, 333 Ill. App. 3d at 786. The first
       amendment provides that “Congress shall make no law *** abridging the freedom of
       speech.” U.S. Const., amend. I. The parties do not dispute that the statute here “seek[s] to
       regulate ‘only spoken words.’ ” Broadrick, 413 U.S. at 612 (quoting Gooding v. Wilson, 405
       U.S. 518, 520 (1972)). Moreover, the statute targets words about a specific subject: family
       relationships to minors. The statute is thus a content-based regulation of speech.
¶ 19           Content-based speech restrictions ordinarily are subjected to strict scrutiny. See
       United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000). However,
       an exception to the ordinary rule applies to “certain well-defined and narrowly limited classes
       of speech, the prevention and punishment of which has never been thought to raise any
       Constitutional problem.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). The
       first amendment does not include a freedom to disregard these traditional categories of
       unprotected speech. R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992).
¶ 20           False statements of fact are often at the heart of the traditional categories of
       unprotected speech. E.g., Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S.
       600, 612 (2003) (“[T]he First Amendment does not shield fraud.”); United States v.
       Dunnigan, 507 U.S. 87, 96 (1993) (“[A] defendant’s right to testify does not include a right
       to commit perjury.”); Virginia State Board of Pharmacy v. Virginia Citizens Consumer
       Council, Inc., 425 U.S. 748, 771 (1976) (false statements in advertising are unprotected);
       Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974) (libel). “The First Amendment
       requires that we protect some falsehood in order to protect speech that matters.” Gertz, 418
       U.S. at 341. Nevertheless, the State has a compelling interest in safeguarding minors; courts
       have sustained legislation aimed at protecting the physical and emotional well-being of youth
       even when the laws have operated in the sensitive area of constitutionally protected rights,
       including the right to free speech. New York v. Ferber, 458 U.S. 747, 756-57 (1982) (and
       cases cited therein).
¶ 21           In this case, the statute criminalizes false representations that a person is the parent,
       legal guardian or other relation of a minor child to various public officials or employees. On
       one hand, family relationships are not ordinarily a matter of public interest or concern. On

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       the other hand, as Farmer notes, many such false statements of this sort lack the element of
       private or public injury that accompanies traditionally unprotected categories of speech like
       perjury or fraud. A neighbor may pretend to be a relative believing he or she is protecting a
       minor child from talking to an adult stranger, who turns out to be a plainclothes policeman
       or school teacher. Young people may colloquially refer to their friends as “brothers” or
       “cousins” in situations that are entirely innocent, just as old family friends may refer to their
       friends’ children as nephews or nieces. Those in a charitable “Big Brother” program might
       innocently refer to their minor charges as “little brothers.”
¶ 22           The State argues that these interests can be reconciled by placing a limiting
       construction on the statute, requiring that the false statement be given knowingly and with
       the intent of deceiving the relevant public official or employee. Farmer cites People v.
       Madrigal, 241 Ill. 2d 463 (2011), in which the Illinois Supreme Court rejected the State’s
       request to read a mental state into a statute criminalizing innocent conduct under the rubric
       of identity theft. The supreme court applied the rule that a statute violates the due process
       clauses of both the Illinois and United States Constitutions if it potentially subjects wholly
       innocent conduct to criminal penalty without requiring a culpable mental state beyond mere
       knowledge. Madrigal, 241 Ill. 2d at 467. The identity theft statute at issue specified a mental
       state of mere knowledge, not criminal intent or knowledge. Madrigal, 241 Ill. 2d at 470.
       Thus, the supreme court could not substitute a culpable mental state for mere knowledge. In
       contrast, where a statute does not specify a mental state in the first instance, the court may
       read a culpable mental state into the statute. See Madrigal, 241 Ill. 2d at 474-75 (discussing
       People v. Wright, 194 Ill. 2d 1 (2000), and People v. Tolliver, 147 Ill. 2d 397 (1992)).
¶ 23           Here, the issue is first amendment overbreadth, not substantive due process.
       Moreover, section 32–5.3 of the Code does not specify a mental state and we are obliged to
       consider a limiting construction of the statute. Broadrick, 413 U.S. at 613; Hill, 333 Ill. App.
       3d 783. The construction the State proposes advances the State’s interest in protecting
       minors, while limiting the punishment of speech to cases where a person knowingly deceives
       a public official or employee to frustrate the operations of government in the protection of
       minors. Such an intent is similar to that required to prosecute obstruction of justice for
       knowingly furnishing false information to the police. See, e.g., People v. Childs, 272 Ill.
       App. 3d 787, 789-90 (1995); People v. Gerdes, 173 Ill. App. 3d 1024, 1032 (1988). Given
       that limiting construction, section 32–5.3 of the Code is not unconstitutionally overbroad.
¶ 24           We note the jury in this case received no instruction reflecting the limiting
       construction to be placed on section 32–5.3 of the Code, as defense counsel raised the
       constitutional issue for the first time on appeal. However, errors in jury instructions are
       harmless if it is shown that the trial’s result would not have been different had the jury been
       properly instructed. People v. Pomykala, 203 Ill. 2d 198, 210 (2003). “Because intent is a
       state of mind, it can rarely be proved by direct evidence” and can be shown by surrounding
       circumstances. People v. Williams, 165 Ill. 2d 51, 64 (1995). In this case, Farmer not only
       repeatedly lied to Officer O’Neal about his relationship with L.W., but also immediately fled
       the scene when Officer O’Neal suggested Farmer accompany him to the police station. Based
       on the record before us, we do not believe the jury’s verdict would have been any different
       had it been instructed regarding the limiting construction we have given the statute. Thus,

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       any error is harmless and this court need not remand the case for a new trial.

¶ 25                               II. Ineffective Assistance of Counsel
¶ 26       Farmer also claims he was denied a fair trial because he was denied his sixth and
       fourteenth amendment rights to the effective assistance of counsel. Generally, in order to
       show ineffective assistance of counsel, a defendant must establish: (1) counsel’s
       representation fell below an objective standard of reasonableness; and (2) counsel’s alleged
       deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
       (1984). We must show great deference to the attorney’s decisions, given a strong
       presumption that an attorney has acted adequately. Strickland, 466 U.S. at 689. A defendant
       must overcome the strong presumption the challenged action or inaction “might have been
       the product of sound trial strategy.” People v. Evans, 186 Ill. 2d 83, 93 (1999) (and cases
       cited therein). Every effort must “be made to eliminate the distorting effects of hindsight, to
       reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct
       from counsel’s perspective at the time.” Strickland, 466 U.S. at 689. To satisfy the prejudice
       prong of the Strickland test, a defendant must demonstrate a reasonable probability that but
       for counsel’s deficient performance, the result of the proceeding would have been different.
       Strickland, 466 U.S. at 694. A “reasonable probability” is a probability sufficient to
       undermine confidence in the outcome of the proceedings. Strickland, 466 U.S. at 694. Thus,
       the prejudice component of Strickland entails more than an “outcome-determinative test”;
       rather, the defendant must show that counsel’s deficient performance rendered the trial result
       unreliable or rendered the proceeding fundamentally unfair. People v. Richardson, 189 Ill.
       2d 401, 411 (2000). If a reviewing court finds that the defendant did not suffer prejudice, it
       need not decide whether counsel’s performance was constitutionally deficient. People v.
       Buss, 187 Ill. 2d 144, 213 (1999).
¶ 27            Farmer argues that his trial counsel was ineffective because he repeatedly stated that
       Farmer was “not a saint,” suggested that Farmer may have been engaged in other crimes
       (e.g., retail theft or solicitation of prostitution), and elicited testimony that Farmer may have
       been under investigation for a felony sex crime. Farmer relies on People v. Phillips, 227 Ill.
       App. 3d 581, 590 (1992), where counsel’s failure to object to hearsay linking the defendant
       to the crime was “devastating to defendant’s case” and warranted a mistrial. In this case,
       counsel’s suggestion that Farmer may have been involved in other crimes was largely
       intended to suggest an explanation for Farmer’s flight from police. The unsolicited testimony
       elicited from Officer O’Neal that Farmer might have been under investigation for some
       felony sex crime may not have helped Farmer’s case. Yet, the testimony was not particularly
       harmful either, as defense counsel then established no such outstanding complaint against
       Farmer existed.
¶ 28            Farmer also argues that counsel was ineffective by emphasizing that Farmer never
       claimed to be L.W.’s parent or guardian, while ignoring that the statute extends to any false
       representation of family relationship. Farmer claims counsel misapprehended the law and
       gave the jury no choice but to convict him. Farmer relies on People v. Torres, 209 Ill. App.
       3d 314, 316 (1991), where counsel in an aggravated sexual assault case clearly


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       misunderstood what qualified as “penetration” under the applicable statute and mistakenly
       believed that the fact that defendant’s family relation to the victim was a defense. In the
       record before us, counsel emphasized that Farmer never claimed to be L.W.’s parent or
       guardian, but also argued that Farmer’s claim that L.W. was his cousin could have been
       merely colloquial.
¶ 29           In short, given the record on appeal presented, we conclude that Farmer’s counsel’s
       performance did not render the trial result unreliable or the proceeding fundamentally unfair.
       Rather, counsel’s performance reflected a trial strategy suited to the evidence against Farmer.
       Indeed, given the strength of the evidence against Farmer in this case, we conclude there was
       no reasonable probability that counsel’s performance in this case affected the result of the
       trial. Accordingly, Farmer’s argument fails.

¶ 30                                      CONCLUSION
¶ 31       In sum, we conclude that section 32–5.3 of the Criminal Code of 1961 was not
       unconstitutionally overbroad in violation of the first and fourteenth amendments to the
       United States Constitution. We also conclude that Farmer did not receive ineffective
       assistance of counsel at trial. For all of the aforementioned reasons, the judgment of the
       circuit court of Cook County is affirmed.
¶ 32           Affirmed.




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