People v. Irvine ( 2008 )

Fourth Division
January 31, 2008
No. 1-06-0005
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 05 MC1 439010
)
ALFRED IRVINE, ) Honorable
) Kay Marie Hanlon,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE NEVILLE delivered the modified opinion of the court:
Defendant, Alfred Irvine, was found guilty of domestic battery and sentenced to 12 months
of conditional discharge, to mandatory domestic violence classes and to fees and fines of $379. In
this appeal, the defendant presents the following issues for review: (1) whether the State proved the
defendant guilty of domestic battery beyond a reasonable doubt; (2) whether section 12-3.2 of the
Criminal Code of 1961 (Criminal Code) is unconstitutionally vague (720 ILCS 5/12-3.2 (West
2004)); (3) whether the defendant received ineffective assistance of counsel; (4) whether the trial
court erred in its recollection of the evidence when it weighed the credibility of witnesses and found
the defendant guilty; (5) whether the defendant is entitled to a credit of $5 per day toward the fines
assessed against him for time he spent in custody prior to sentencing; and (6) whether a $30 fee for
minor traffic ordinance violations must be vacated.
We hold: (1) that the evidence was sufficient to find the defendant guilty beyond a reasonable
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doubt of the offense of domestic battery; (2) that section 12-3.2(a) of the Criminal Code is not
unconstitutionally vague; (3) that the defendant did not receive ineffective assistance of counsel; (4)
that any error occasioned by the trial court’s recollection of the evidence in this case was harmless
beyond a reasonable doubt and does not undermine confidence in the verdict; (5) that People v.
Jones, 223 Ill. 2d 569 (2006), makes it clear that the defendant is entitled to a $10 credit for the two
days he was incarcerated prior to sentencing; and (6) that the trial court erred when it imposed a fee,
pursuant to section 27.2a(w)(1)(E) of the Clerks of Courts Act (705 ILCS 105/27.2a(w)(1)(E) (West
2004)), because the defendant was charged in a misdemeanor complaint but was not charged with
a minor traffic or ordinance violation.
BACKGROUND
Defendant was arrested near the intersection of Belmont and Clark Streets in Chicago
following an altercation with Niya White and charged in a misdemeanor complaint with one count
of domestic battery in violation of section 12-3.2 of the Criminal Code. 720 ILCS 5/12-3.2 (West
2004). The State filed a petition for an order of protection against the defendant, pursuant to the
Illinois Domestic Violence Act of 1986 (the Act) (750 ILCS 60/101 et seq.(West 2004)), and on May
25, 2005, an order of protection was entered against the defendant. Finally, the defendant waived
his right to a jury trial, and a bench trial was held on June 15, 2005.
THE STATE'S CASE
Niya White
White testified at trial that she and the defendant had been involved in a full relationship for
approximately 45 days. However, White also testified that she and the defendant continued to have
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a sexual relationship after the official break up of the full relationship. According to White, the
sexual relationship ended on May 2, 2005. White testified that she arranged to meet with the
defendant on May 2, 2005, and saw him near the intersection of Belmont and Clark in Chicago at
approximately 5:30 p.m. White was with Jermaine Edward and a man whose name was Erotica.
White testified that, when she approached the defendant, he was with Natasha Salazar. White started
asking the defendant questions but their conversation quickly degenerated into an argument. White
testified that, “Irvine grabbed [her], choked [her] on the neck, and he shoved [her] into a glass
window.” White also testified that the defendant slapped her in the face with an open hand and
grabbed her by the hair and threw her against a parked car. According to White, the altercation
ended when an unidentified man dressed in black broke things up.
Once the altercation ended, White walked to the Open Door Shelter and called the police.
When the police arrived later that evening, they took White’s statement and then they arrested the
defendant. White testified on direct examination that she had a swollen face and a painful scalp, but
on cross-examination she testified that she decided not to go to the hospital. At the conclusion of
White’s testimony, the State rested and the defendant made a motion for a directed verdict. Finally,
after the defendant waived argument on his motion, the trial court denied the motion.
THE DEFENDANT'S CASE
Natasha Salazar
Natasha Salazar testified that she and the defendant had been together on Belmont Street, in
Chicago, for approximately an hour when White approached with two other people whom Salazar
had previously seen. According to Salazar, White started talking and, at first, everything seemed
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okay, but then the conversation degenerated into an argument. Salazar testified that she got mad
during the first 30 seconds of the conversation, so she walked a few blocks to the Dunkin’ Donuts
on the corner of Belmont and Clark. Streets. Salazar testified that she was at Dunkin’ Donuts for
approximately five to seven minutes, that she purchased a bagel and began to consume it, and that
she went back outside to get her hat from the defendant. Once she was outside, she watched as
White got angry and pushed the defendant, and Irvine pushed back after he was pushed. Salazar got
her hat from Irvine. According to Salazar,“she [White] tried to come up and get in my face [and]
started to fighting [sic] with the 'boot cops' out there.” Salazar explained that "boot cops" are
employees of a towing company that tows cars from the Dunkin’ Donuts parking lot. Salazar
testified that the boot cops pushed White away from her and Irvine. Finally, Salazar testified that
she walked away from the scene and did not see Irvine again until he was arrested.
Alfred Irvine
Irvine testified that he and Salazar were standing in front of the library when White
approached and told him that they needed to talk. Irvine testified that Salazar left after a minute and
walked off toward the nearby Dunkin’ Donuts without her hat. Defendant testified that he had
Salazar’s hat, and therefore, he followed Salazar and walked in the direction of Dunkin’ Donuts.
According to the defendant, he told White, “[L]eave me alone, I don’t want to be bothered with you,
we’re done.” Nevertheless, White followed him for three blocks as he walked toward the Dunkin’
Donuts. Defendant testified that White repeatedly grabbed and pulled his shoulder while she told
him that they needed to talk. The defendant explained how he tried to enter Dunkin’ Donuts but that
the boot cops would not let him enter the store. Defendant testified that he and White passed the
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Open Door Shelter as they walked. According to the defendant, White pushed him again in front
of the Open Door Shelter. The defendant testified that he pushed her back to get her off him and told
her to leave him alone because he did not want to have anything to do with her. The defendant also
testified that Salazar approached and asked for her hat and that White started hitting his back and
shoulders when he turned to give the hat to Salazar. At that point, the defendant testified the boot
cops broke up the fight.
The trial court listened to the closing arguments, reviewed the testimony of White, Salazar
and the defendant and stated, “I don’t believe the defendant, that he kept on walking for blocks and
blocks, kept on having [the] complaining witness pushing on his shoulder and basically did nothing
but defend himself. I believe complainant; therefore, there will be a finding of guilty of domestic
battery.”
The defendant was convicted of domestic battery and (1) was sentenced to 12 months of
conditional discharge, (2) was ordered to complete domestic violence counseling; (3) was sentenced
to a complete stay-away order of protection from White; and (4) was ordered to pay fees and fines
of $379. The defendant filed a motion for a finding of not guilty or for a new trial.
On December 21, 2005, the defendant filed a second amended motion for a finding of not
guilty or for a new trial on the basis of newly discovered evidence: the affidavit of D’Angelo Zavala,
one of the boot cops that witnessed the altercation. Zavala averred in his affidavit that he had
watched as White followed the defendant and tried to argue with him. According to Zavala, the
defendant tried to ignore White, who shoved him from behind before the defendant turned and
pushed back. The defendant argued that he was previously unable to secure the affidavit or
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testimony of Zavala because of the order of protection in effect before the trial and the fact that
Zavala worked in an area frequented by White.
On December 21, 2005, the trial court denied the defendant’s second amended motion for
a finding of not guilty or a new trial (1) because the trial court judged the credibility of witnesses and
believed White; (2) because the trial court indicated it judged the interest, bias, motive and
prejudices and correctly applied the law to reach the right decision; and (3) because the trial court
found that the defendant was not entitled to a new trial because the alleged newly discovered
evidence could have been discovered during the trial through the exercise of reasonable diligence.
ANALYSIS
Sufficiency of the Evidence
The defendant argues that he was erroneously convicted of domestic battery because the State
failed to prove that he was a family member or household member of the victim as charged in the
State’s complaint. According to the defendant, the State failed to present evidence which proved that
he and White were “family or household members” that were involved in a “dating relationship” that
was “more serious and intimate than casual” and comes within the purview of the domestic battery
statute. 720 ILCS 5/12-3.2 (West 2004).
The State argues that it presented evidence that proved that the defendant was guilty of
domestic battery statute. 720 ILCS 5/12-3.2 (West 2004). The State also argues that the evidence
presented was sufficient to prove that the defendant and White were family or household members
as defined in subsection (3) of section 112A-3 of the Code of Criminal Procedure of 1963 (Code of
Criminal Procedure) as amended. 725 ILCS 5/112A-3(3) (West 2004). Subsection (3) of section
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112A-3 defines "family or household members" as "persons who *** have had a dating or
engagement relationship." 725 ILCS 5/112A-3(3) (West 2004).
Illinois courts are guided by established rules of statutory construction. “The cardinal rule
of statutory construction, and the one to which all other canons and rules must yield, is to ascertain
and give effect to the true intent and meaning of the legislature.” State Farm Mutual Automobile
Insurance Co. v. Illinois Farmers Insurance Co., 226 Ill. 2d 395, 401 (2007), citing Progressive
Universal Insurance Co. of Illinois v. Liberty Mutual Fire Insurance Co., 215 Ill. 2d 121, 134 (2005),
citing Country Mutual Insurance Co. v. Teachers Insurance Co., 195 Ill. 2d 322, 330 (2001). Our
supreme court has consistently held that “[t]he most reliable indicator of legislative intent is found
in the language of the statute.” State Farm, 226 Ill. 2d at 401, citing Midstate Siding & Window Co.
v. Rogers, 204 Ill. 2d 314, 320 (2003), citing Michigan Avenue National Bank v. County of Cook,
191 Ill. 2d 493, 504 (2000). When evaluating a statute, we recognize that “[s]tatutory language is
afforded its plain and ordinary meaning.” State Farm, 226 Ill. 2d at 401, citing Midstate Siding &
Window Co., 204 Ill. 2d at 320, citing Michigan Avenue National Bank, 191 Ill. 2d at 504. With
these principles in mind, we now examine the statute that criminalizes domestic battery. 720 ILCS
5/12-3.2 (West 2004).
Section 12-3.2 of the Criminal Code provides, in pertinent part:
“A person commits domestic battery if he intentionally or knowingly
without legal justification by any means:
(1) Causes bodily harm to any family or household member
as defined in subsection (3) of Section 112A-3 of the Code
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of Criminal Procedure of 1963, as amended; [or]
(2) Makes physical contact of an insulting or provoking
nature with any family or household member as defined in subsection (3) of
Section 112A-3 of the Code of Criminal Procedure of 1963, as amended.”
(Emphasis added.) 720 ILCS 5/12-3.2 (West 2004).
According to section 12-3.2(a)(1) of the Criminal Code, in order to prove a defendant guilty of
domestic battery, the State must prove that the defendant (1) intentionally or knowingly, (2) without
legal justification, (3) causes bodily harm (4) to any family or household member. 720 ILCS
5/12-3.2(a)(1) (West 2004).
Subsection (3) of section 112A-3 of the Code of Criminal Procedure, which is referenced in
section 12-3.2 of the Criminal Code, defines the term “Family or household members” and provides
that “ ‘Family or household members’ include *** persons who have or have had a dating or
engagement relationship ***." (Emphasis added.) 725 ILCS 5/112A-3 (3) (West 2004). Subsection
(3) of section 112A-3 of the Code of Criminal Procedure also provides that neither a casual
acquaintanceship nor ordinary fraternization between two individuals in business or social contexts
shall be deemed to constitute a dating relationship. 725 ILCS 5/112A-3 (3) (West 2004). In order
to determine if the defendant’s contention is correct, we review the record to determine if evidence
was presented which established that White and defendant were family or household members within
the purview of section 12-3.2 of the Criminal Code.
On appeal, “[t]he relevant inquiry is whether, viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of the
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crime beyond a reasonable doubt.” People v. Ward, 215 Ill. 2d 317, 322 (2005), citing People v.
Evans, 209 Ill. 2d 194, 209 (2004), and People v. Hopkins, 201 Ill. 2d 26, 40 (2002); see also People
v. Tabb, 374 Ill. App. 3d 680, 691 (2007), quoting People v. Cunningham, 212 Ill. 2d 274, 280
(2004) (“ ‘This means that [we] must allow all reasonable inferences from the record in the favor of
the prosecution’ ”). As we review the sufficiency of the evidence of a criminal conviction, we do
not retry the defendant. People v. Ward, 215 Ill. 2d 317, 322 (2005), citing People v. Evans, 209 Ill.
2d 194, 209 (2004). The defendant was convicted following a bench trial; therefore, a judge was the
trier of fact with the power to determine the credibility of witnesses and to both evaluate the
evidence and resolve any inconsistencies. People v. Doll, 371 Ill. App. 3d 1131, 1136 (2007), citing
People v. Ortiz, 188 Ill. App. 3d 506, 514 (1989). Accordingly, “ ‘[w]e will not reverse a conviction
unless the evidence is so unreasonable, improbable or unsatisfactory that it raises a reasonable doubt
of defendant's guilt.’ ” People v. Jackson, 358 Ill. App. 3d 927, 941 (2005), quoting Evans, 209 Ill.
2d at 209.
The State's case, that White and the defendant were "family or household members" because
they were involved in a "dating relationship," was based upon the following evidence: (1) White's
testimony that she had a relationship with the defendant and that she considered them to be ex-
boyfriend and ex-girlfriend; and (2) White's testimony that the relationship “lasted about a month-
and-a-half”; and (3) that they had a “sexual relationship” up to and including the day of the
altercation. Although the defendant argues that the State’s evidence was insufficient proof of a
dating relationship sufficient to qualify him as a “family or household member” as defined by
subsection (3) of section 112A-3 of the Code of Criminal Procedure, we note that there was no
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evidence in the record that rebutted the State’s evidence that the defendant and White had a dating
and sexual relationship.
There is no evidence in the record (1) that the defendant and White were not boyfriend and
girlfriend; (2) that White and the defendant's relationship never existed or that they only had one
date; or (3) that the defendant and White did not have a sexual relationship. Instead, the defendant
argues that his relationship with White, although having lasted for six weeks during which time he
and White had sexual intercourse, was neither serious enough nor intimate enough to constitute a
serious courtship and bring their relationship within the purview of the definition for family or
household members in subsection (3) of section 112A-3 of the Code of Criminal Procedure. 725
ILCS 5/112A-3(3) (West 2004). The defendant directs this court’s attention to the cases of People
v. Young, and Alison C. v. Westcott as authority for his argument that “ 'a "dating relationship" is
a serious courtship,' ” and “ 'a relationship that [is] more serious and intimate than casual.' ” People
v. Young, 362 Ill. App. 3d 843, 851 (2005), quoting Alison C. v. Westcott, 343 Ill. App. 3d 648, 653
(2003).
In Alison C., the State filed a petition, pursuant to the Illinois Domestic Violence Act, for
a plenary order of protection, and the defendant filed a motion to dismiss the petition. Alison C., 343
Ill. App. 3d at 649. The defendant maintained in his motion that he and the complainant had only
gone on one date and, therefore, (1) the parties were not involved in a "dating relationship," and (2)
the complainant was not a person protected by the Act. Alison C., 343 Ill. App. 3d at 650. The
Alison C. court examined the definition for “dating relationships” in section 103(6) of the Act, which
provides that “ ‘[f]amily or household members’ include *** persons who have or have had a dating
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or engagement relationship” but only if the relationship was “neither a casual acquaintanceship nor
ordinary fraternization between 2 individuals in business or social contexts.” 750 ILCS 60/103(6)
(West 2002). The court found that the parties were not engaged in a “dating relationship” because
(1) the parties had only gone on one date, and (2) the relationship was brief and not exclusive.
Alison C., 343 Ill. App. 3d at 653. The Alison C. court held that the trial court erred when it denied
the defendant’s motion to dismiss the petition for a plenary order of protection under the Act because
the parties’ relationship was not a “dating relationship” protected by the Act. Alison C., 343 Ill. App.
3d at 653.
In Young, the State filed a misdemeanor complaint against the defendant and charged him
with two counts of domestic battery and one count of criminal damage to property. Young, 362 Ill.
App. 3d at 844-45.The defendant maintained in the appeal that the State failed to prove an element
of the offense of domestic battery: that the complainant was a “family or household member.”
Young, 362 Ill. App. 3d at 844. The Young court found that the complainant and the defendant did
not have a fixed residence and resided in homeless shelters and that there was no evidence that they
had formed a “household." Young, 362 Ill. App. 3d at 850. The Young court also found that the
complainant and the defendant had a pattern of companionship and that the companionship may have
included an element of romantic interest, at least on the defendant’s part. Young, 362 Ill. App. 3d
at 852. Finally, the Young court found that section 112A-3(3) covers some but not all intimate
relationships or friendships and that the evidence was insufficient to find that the two parties had a
“serious courtship”-- an established relationship with a romantic focus. Young, 362 Ill. App. 3d at
851. Therefore, the Young court held that the parties were not “family or household members.”
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Young, 362 Ill. App. 3d at 852.
We find the Alison C. and Young cases instructive. Alison C., 343 Ill. App. 3d at 653;
Young, 362 Ill. App. 3d at 852. We are also mindful of the fact that the Alison C. court was
interpreting the words “family or household members” in the Illinois Domestic Violence Act (750
ILCS 60/103(6) (West 2004)), but the interpretation is helpful because the words “family or
household members” also appear in the domestic battery statue in the Criminal Code. See 720 ILCS
5/12-3.2(a)(1) (West 2004). Nevertheless, Alison C. teaches us that one date and a relationship that
is brief and nonexclusive do not constitute a “dating relationship.” Alison C., 343 Ill. App. 3d at
653. The Young court teaches us that the definition for “family or household members” in section
112A-3(3) does not cover intimate relationships or friendships unless the parties have an established
relationship with a romantic focus. Young, 362 Ill. App. 3d at 851.
We find that “[t]he General Assembly intended the domestic violence provisions to address
the particular problems of abuse in intimate relationships.” People v. Young, 362 Ill. App. 3d 843,
850 (2005), citing People v. Whitfield, 147 Ill. App. 3d 675, 679 (1986); see also Alison C., 343 Ill.
App. 3d at 652, citing Glater v. Fabianich, 252 Ill. App. 3d 372, 376 (1993). We also find that “it
is clear that a ‘serious courtship’ must be, at a minimum, an established relationship with a
significant romantic focus.” Young, 362 Ill. App. 3d at 851. In Young, the complaining witness
denied the existence of a dating relationship but claimed a social relationship. Young, 362 Ill. App.
3d at 845. In Alison C., the parties went on one date. Alison C., 343 Ill. App. 3d at 652. Here,
however, there were six weeks of dating coupled with sexual intercourse up to the date of the
altercation. Young, 362 Ill. App. 3d at 845; Alison C., 343 Ill. App. 3d at 652. Therefore, we find
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that the facts in this case are distinguishable from the facts in Young and Alison C.
We find that the domestic battery statute does not require that the accused and the
complaining witness be presently dating at the time of the offense, merely that they “have or have
had a dating or engagement relationship.” 725 ILCS 5/112A-3 (West 2004), cited in 720 ILCS 5/12-
3.2(a)(1) (West 2004). We also find that the relationship between White and the defendant qualifies
as a serious courtship because they dated for six weeks and continued to have sexual intercourse up
to and including the date of their altercation. We further find that six weeks of dating coupled with
sexual intercourse is neither a casual acquaintanceship nor ordinary fraternization between two
individuals in a business or a social context. When we consider the evidence in the light most
favorable to the State, we hold that the evidence established that the defendant and White's
relationship was a “dating relationship” because it was neither a casual acquaintanceship nor
ordinary fraternization between two individuals in a business or social context. Accordingly, we
hold that the defendant and the complainant were “family members” within the purview of the
domestic violence statute. 720 ILCS 5/12-3.2 (West 2004); see also People v. Johnson, 341 Ill. App.
3d 583, 588 (2003), quoting 725 ILCS 5/112A-3(3) (West 2002).
Vagueness
The defendant also argues that section 12-3.2 of the Criminal Code is unconstitutionally
vague as applied to him. Although he recognizes that shoving White is prohibited by the Criminal
Code, the defendant argues that the statute offers no guidance as to what is required for a dating
relationship to fall within the purview of the domestic violence statute. The defendant also argues
that the relationship between them is too short in duration.
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The State argues that section 12-3.2 of the Criminal Code is not unconstitutionally vague
because the statute provides a person of ordinary intelligence with fair warning that grabbing a
woman by the hair, throwing her against a car and holding her up against a glass window is
prohibited conduct. The State also argues that the defendant’s claimed dispute with the language
of the statute is a stretch because the defendant used the phrase “we’re done,” which implied the
prior existence of a relationship on which the trial court could base its finding.
The supreme court recently held that “[i]n determining whether a statute has been shown to
be unconstitutional, we begin with the presumption that all statutes are constitutional.” General
Motors Corp. v. State of Illinois Motor Vehicle Review Board, 224 Ill. 2d 1, 24 (2007), citing People
v. Waid, 221 Ill. 2d 464, 480 (2006). “The burden of rebutting that presumption is on the party
challenging the validity of the statute to demonstrate clearly a constitutional violation.” General
Motors, 224 Ill. 2d at 24, citing People v. Greco, 204 Ill. 2d 400, 406 (2003). “If reasonably
possible, a statute must be construed so as to affirm its constitutionality and validity.” General
Motors, 224 Ill. 2d at 24, citing Greco, 204 Ill. 2d at 406.
"The determination of whether a statute is void for vagueness must be made in the factual
context of each case." People v. Falbe, 189 Ill. 2d 635, 639 (2000), citing Lee v. Nationwide Cassel,
L.P., 174 Ill. 2d 540, 549 (1996), and People v. Bales, 108 Ill. 2d 182, 189 (1985). “Where, as here,
the statute does not impinge on first amendment rights, due process is satisfied if: (1) the statute's
prohibitions are sufficiently definite, when measured by common understanding and practices, to
give a person of ordinary intelligence fair warning as to what conduct is prohibited, and (2) the
statute provides sufficiently definite standards for law enforcement officers and triers of fact that its
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application does not depend merely on their private conceptions.” Falbe, 189 Ill. 2d at 640, citing
People v. Warren, 173 Ill. 2d 348, 356 (1996).
“A statute is not unconstitutionally vague if it is explicit enough to serve as a guide to those
who must comply with it.” General Motors, 224 Ill. 2d at 24, citing Ardt v. Illinois Department of
Professional Regulation, 154 Ill. 2d 138, 157 (1992). “Moreover, a statute is considered
unconstitutionally vague only if its terms are so ill-defined that the ultimate decision as to its
meaning rests on the opinions and whims of the trier of fact rather than any objective criteria or
facts.” General Motors, 224 Ill. 2d at 24, citing People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 291
(2003), and People v. Burpo, 164 Ill. 2d 261, 266 (1995). In short, “ The challenger must establish
that no set of circumstances exists under which the Act would be valid.” United States v. Salerno,
481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987), quoted in Greco, 204 Ill.
2d at 407. “Moreover, that the statute might operate unconstitutionally under some conceivable set
of circumstances is insufficient to render it wholly invalid, as we have not recognized an overbreadth
doctrine outside the limited context of the first amendment.” Greco, 204 Ill. 2d at 407, citing C.E.,
161 Ill. 2d at 211, quoting Salerno, 481 U.S. at 745, 95 L. Ed. 2d at 707, 107 S. Ct. at 2100.
The supreme court held that the domestic battery statute's prohibitions are sufficiently
definite to give a person of ordinary intelligence adequate warning of what conduct is prohibited.
People v. Wilson, 214 Ill. 2d 394, 400 (2005). While the Wilson court found that a domestic battery
is committed against a family or household member, it pointed out that both the simple battery
statute and the domestic battery statute prohibit one person from making physical contact of an
insulting or provoking nature with another person. Wilson, 214 Ill. 2d at 400, citing 720 ILCS 5/12-
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3(a), 12-3.2(a) (West 2002). The Wilson court rejected the argument that the defendant is actually
making in this case: that he was not given fair warning as to whether committing a battery against
White would be a simple battery or a domestic battery. Wilson, 214 Ill. 2d at 400. The defendant
was aware of the fact that he and White had a “dating relationship” because they dated for six weeks
and had a sexual relationship up to the date of the altercation. Therefore, we hold that the language
in the domestic violence statute and the definition for "family members" in subsection (3) of section
112A-3 of the Code of Criminal Procedure are explicit enough to serve as a guide for those who
must comply with and interpret the domestic violence statute. Wilson, 214 Ill. 2d at 400.
The defendant also argues that the brief length of his relationship with White removes their
relationship from the purview of the domestic violence statute. 720 ILCS 5/12-3.2(a) (West 2004).
Defendant's argument lacks merit. The Wilson court held that the fact the statute has no time limit
does not make the statute vague. Wilson, 214 Ill. 2d at 400-01. However, even if the defendant’s
relationship with White was of such short duration, and it was not, that it was removed from the
purview of the domestic violence statute, the defendant still violated the battery statute: the evidence
established that the defendant slapped White's face, grabbed her by the hair and pushed her into a
car. 720 ILCS 5/12-3 (West 2004). Accordingly, because the defendant and White were involved
in a "dating relationship," thereby making them "family members," the aforementioned acts bring
the defendant within the purview of both the simple battery statute and the domestic battery statute
in the Criminal Code. 720 ILCS 5/12-3, 12-3.2 (West 2004).
Ineffective Assistance of Counsel
The defendant argues that he received ineffective assistance of counsel because White was
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the only inculpatory witness, yet his counsel failed to investigate Zavala, the Dunkin’ Donuts boot
cop who may have had information that might have corroborated the defendant’s version of events.
The defendant maintains that, had his counsel investigated Zavala, there is a reasonable probability
of acquittal. Therefore, defendant argues that the failure to investigate Zavala is objectively
unreasonable and was not a sound trial strategy.
The State argues that the defendant did not receive ineffective assistance of counsel. The
State argues that the failure to investigate Zavala rests on the defendant because he was the source
of the information about Zavala. The State also argues that the defendant’s testimony contradicted
his position that his counsel knew or should have known about Zavala. Because defendant's counsel
was not informed of the potential witness, the State argues, counsel had no duty to investigate him.
The State also argues that the defendant’s position that the State’s only evidence against him hinged
on White’s testimony is disingenuous because the argument that the defendant suffered prejudice
depends on a construction of all of the evidence in the defendant’s favor. In order to prevail,
Zavala’s potential testimony would have to be accepted as credible and White’s testimony would
have to be rejected as incredible. According to the State, the defendant’s argument must fail
because, when the evidence is construed in the light most favorable to the State, the defendant cannot
demonstrate that the evidence was insufficient to support the conviction and sentence.
The law of ineffective assistance of counsel is well established. “The sixth amendment to
the Constitution ‘recognizes the right to the assistance of counsel because it envisions counsel's
playing a role that is critical to the ability of the adversarial system to produce just results.’ ” People
v. Cunningham, 376 Ill. App. 3d 298, 301 (2007), quoting Strickland v. Washington, 466 U.S. 668,
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685, 80 L. Ed. 2d 674, 692, 104 S. Ct. 2052, 2063 (1984). “An accused is entitled to ‘reasonably
effective assistance,’ and the touchstone for judging claims of ineffective assistance is whether an
attorney's conduct renders the trial results undependable.” Cunningham, 376 Ill. App. 3d at 301,
quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Strickland has been
adopted by the Illinois Supreme Court. People v. Albanese, 104 Ill. 2d 504, 526 (1984).
There are strict criteria for determining whether counsel is incompetent. People v. Houston,
226 Ill. 2d 135, 143 (2007), citing People v. Thompkins, 121 Ill. 2d 401, 447 (1988). “Under the
two-prong Strickland test for determining whether assistance of counsel has been ineffective, a
defendant must show that (1) his counsel's performance was deficient in that it fell below an
objective standard of reasonableness, and (2) the deficient performance prejudiced the defendant in
that, but for counsel's deficient performance, there is a reasonable probability that the result of the
proceeding would have been different.” Houston, 226 Ill. 2d at 144, citing People v. Evans, 209 Ill.
2d 194, 219-20 (2004), and People v. Peeples, 205 Ill. 2d 480, 512-13 (2002).
Under the deficiency prong of the Strickland test, “a defendant must overcome a strong
presumption that, under the circumstances, counsel's conduct might be considered sound trial
strategy.” Houston, 226 Ill. 2d at 144, citing Peeples, 205 Ill. 2d at 512. “[C]ounsel is afforded wide
latitude when making tactical decisions and the law presumes that counsel will faithfully fulfill his
or her role envisioned by the sixth amendment.” Cunningham, 376 Ill. App. 3d at 301, citing
Strickland, 466 U.S. at 688-89, 80 L. Ed. 2d at 693-94, 104 S. Ct. at 2064-65. Cunningham holds
that “counsel's assistance must fall ‘outside the wide range of professionally competent assistance’
considering all the circumstances.” Cunningham, 376 Ill. App. 3d at 301, quoting Strickland, 466
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U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066. Cunningham also holds that “choices of trial
strategy are virtually unchallengeable because such a choice ‘is a matter of professional judgment
to which a review of counsel's competency does not extend.’ ” Cunningham, 376 Ill. App. 3d at 301,
quoting People v. Cundiff, 322 Ill. App. 3d 426, 435 (2001); see also Strickland, 466 U.S. at 690,
80 L. Ed. 2d at 695, 104 S. Ct. at 2066.
With regard to the prejudice prong of the Strickland test, a reasonable probability that the
result would have been different is a probability that undermines confidence in the outcome.
Houston, 226 Ill. 2d at 144, citing Evans, 209 Ill. 2d at 220, and Peeples, 205 Ill. 2d at 513.
In order to prevail on a claim of ineffective assistance, a defendant must satisfy both the
deficiency prong and the prejudice prong of the Strickland test. Houston, 226 Ill. 2d at 144-45, citing
Evans, 209 Ill. 2d at 220. However, “[i]n determining whether a defendant has received ineffective
assistance of counsel, a reviewing court may review either prong first, and the court need not
consider both prongs of the standard if a defendant fails to show one prong.” Cunningham, 376 Ill.
App. 3d at 301, citing Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.
Generally, an attorney cannot be found to have made decisions based on valid trial strategy
where he or she fails to conduct a reasonable investigation, fails to interview witnesses, and fails to
subpoena witnesses. People v. Makiel, 358 Ill. App. 3d 102, 107 (2005), citing People v. Coleman,
267 Ill. App. 3d 895, 899 (1994). “Attorneys have an obligation to explore all readily available
sources of evidence that might benefit their clients.” (Emphasis added.) Makiel, 358 Ill. App. 3d at
107, citing Brown v. Sternes, 304 F.3d 677, 692 (7th Cir. 2002), citing Hall v. Washington, 106 F.3d
742, 749 (7th Cir. 1997). We also recognize that the failure to conduct an investigation and to
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develop a defense (People v. Wright, 111 Ill. 2d 18 (1986); Coleman, 267 Ill. App. 3d 895) and the
failure to present available witnesses to corroborate a defense (People v. Solomon, 158 Ill. App. 3d
432 (1987)) have been found to be ineffective assistance because defense counsel has a legal and
ethical professional obligation to explore and investigate a client's case. Makiel, 358 Ill. App. 3d
at 107, citing People v. Morris, 335 Ill. App. 3d 70, 79 (2002).
However, in order to evaluate the defendant’s claim that he received ineffective assistance
of counsel, we must begin with the general principle that a counsel's decision about whether to
present a particular witness is generally a strategic choice which cannot support a claim of ineffective
assistance of counsel. People v. Richardson, 189 Ill. 2d 401, 414 (2000), citing People v. Griffin,
178 Ill. 2d 65, 86 (1997). Despite the general rule that attorneys are required to conduct a reasonable
investigation in order for their representation to be considered to be a valid trial strategy (Makiel,
358 Ill. App. 3d at 107), we do not believe that Strickland, Albanese and their progeny extend to
require the defense counsel to read the defendant’s mind about the existence of a potentially
exculpatory witness and the potential nature of that witness’ testimony. People v. Harris, 206 Ill. 2d
293, 306 (2002) (where the defendant is the source of the evidence yet fails to inform his attorney
about it before trial, he cannot subsequently blame the attorney for failing to investigate the
evidence). We note that the defendant testified at trial that the boot cops would not let him enter
Dunkin’ Donuts. However, the defendant testified at the hearing on his second amended posttrial
motion for a finding of not guilty or a new trial that, “[he] did not know about [Zavala] until after
[White] mentioned it in this court proceedings.” The defendant also testified that, “I didn’t know
where [Zavala] worked.” We find that (1) the defendant’s argument that he did not know about the
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boot cops (Zavala) until White mentioned him during her testimony, (2) his argument that his
knowledge of the boot cops was limited to the cops preventing him from entering Dunkin’ Donuts
to take Salazar her hat, and (3) his argument that his counsel failed to conduct a reasonable
investigation is belied by the averments in the defendant’s witness’ (Zavala) affidavit. Zavala
averred in his affidavit (1) that he personally spoke to the defendant on the day of the altercation, and
(2) that he told the defendant that “he could not go inside the Dunkin’ Donuts if Ms. White was
going to follow him inside.” In light of the fact that the defendant personally spoke with Zavala on
the day of the altercation, he could have informed his attorney to conduct an investigation because
a boot cop (Zavala) was a possible witness. The aforementioned facts establish that the defendant
has failed to establish the deficiency prong of the Strickland test, therefore, we need not consider the
prejudice prong. Cunningham, 376 Ill. App. 3d at 301, citing Strickland, 466 U.S. at 697, 80 L. Ed.
2d at 699, 104 S. Ct. at 2069. Accordingly, we reject the defendant’s assertion that he received
ineffective assistance of counsel. Houston, 226 Ill. 2d at 144-45, citing Evans, 209 Ill. 2d at 220(must satisfy both prongs of the Strickland test).
Trial Court Recollection
Next, the defendant argues that the trial court judge incorrectly recalled the evidence and
relied on her faulty recollection to the defendant’s detriment. The trial court's faulty recollection
allegedly helped form the basis for the trial court’s finding that Salazar's and White’s testimony
differed and that the difference affected the credibility of the witnesses. According to the defendant,
the trial court summed up Salazar’s testimony incorrectly and indicated that the altercation between
White and the defendant took place in front of or near the Dunkin’ Donuts. However, the altercation
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took place two stores away from the Dunkin’ Donuts. The defendant argues that this incorrect
summary of Salazar’s testimony and its resulting impact deprived him of a fair trial.
The State responds that the defendant and not the trial court incorrectly recalled Salazar’s
testimony. Although Salazar testified during her direct examination that the incident took place a
block from the Dunkin’ Donuts, she testified on cross-examination that the incident took place two
stores down the block from the Dunkin’ Donuts. The State also points out that the defendant
testified that the incident took place two or three stores down the street from the Dunkin’ Donuts
when he pushed White up against the glass window.
As previously indicated, “[i]n a bench trial, the trial court, as the trier of fact, observes the
witnesses and, thus, is responsible for judging their credibility, resolving any inconsistencies,
determining the weight to give their testimony, and drawing reasonable inferences from all the
evidence presented.” Jackson, 358 Ill. App. 3d at 941, citing People v. Steidl, 142 Ill. 2d 204, 226
(1991). As the reviewing court, “ '[w]e will not reverse a conviction unless the evidence is so
unreasonable, improbable or unsatisfactory that it raises a reasonable doubt of defendant's guilt.' ”
Jackson, 358 Ill. App. 3d at 941, quoting Evans, 209 Ill. 2d at 209.
We are not persuaded that the trial court's statement that the altercation took place in front
of or a few doors from the front of the Dunkin’ Donuts had any bearing on the trial court’s credibility
determinations or, ultimately, on the finding of defendant’s guilt. The trial court found Salazar and
the defendant to be incredible witnesses for other reasons. Salazar and the defendant were found to
be incredible based upon inconsistencies in their testimony. One such inconsistency was Salazar’s
testimony that she “did see [the defendant] touch [White] but this was after she jumped on him.”
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The defendant’s testimony contains no claim that White jumped on him. Because their testimony
contained such inconsistencies, the trial court, as trier of fact, found Salazar's and the defendant’s
testimony to be incredible and did not believe the defendant’s assertion that White struck first.
Accordingly, we find the trial court’s statement that the altercation took place in front of the Dunkin’
Donuts rather than two or three doors down to be harmless beyond a reasonable doubt. People v.
Butler, 304 Ill. App. 3d 750, 756 (1999), citing People v. Dean, 175 Ill. 2d 244, 259 (1997).
Presentencing Credit
The defendant next argues that he is entitled to receive monetary credit pursuant to section
110-14 of the Code of Criminal Procedure for the two days he spent in custody prior to being
sentenced. 725 ILCS 5/110-14 (West 2004). The State argues that the defendant is not entitled to
the credit he seeks because the legislature did not intend for similarly situated defendants to receive
a credit.
The court imposed the following three fines against this defendant: (1) a $4 criminal/traffic
conviction surcharge additional penalty pursuant to section 5-9-1(c-9) of the Unified Code of
Corrections (730 ILCS 5/5-9-1(c-9) (West 2004)); (2) a $200 domestic violence fee pursuant to
section 5-9-1.5 of the Unified Code of Corrections (730 ILCS 5/5-9-1.5 (West 2004)); and (3) a $10
domestic battery fee pursuant to section 5-9-1.6 of the Unified Code of Corrections (730 ILCS 5/5-9-
1.6 (West 2004)).
The supreme court recently examined section 110-14(a) of the Code of Criminal Procedure,
the presentencing credit statute, in People v. Jones, 223 Ill. 2d 569 (2006). Section 110-14(a) of the
Code of Criminal Procedure provides:
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“Any person incarcerated on a bailable offense who does not
supply bail and against whom a fine is levied on conviction of such
offense shall be allowed a credit of $5 for each day so incarcerated
upon application of the defendant. However, in no case shall the
amount so allowed or credited exceed the amount of the fine.” 725
ILCS 5/110-14(a) (West 2004).
Jones discusses the difference between fines and costs and draws the following distinction:
“ 'A "fine" is a pecuniary punishment imposed as part of a
sentence on a person convicted of a criminal offense. People v.
Despenza, 318 Ill. App. 3d 1155, 1157 (2001). A "cost" is a charge
or fee taxed by a court such as a filing fee, jury fee, courthouse fee,
or reporter fee. Despenza, 318 Ill. App. 3d at 1157. Unlike a fine,
which is punitive in nature, a cost does not punish a defendant in
addition to the sentence he received, but instead is a collateral
consequence of the defendant's conviction that is compensatory in
nature. People v. Terneus, 239 Ill. App. 3d 669, 672 (1992). A "fee"
is a charge for labor or services, especially professional services.
Black's Law Dictionary 629 (7th ed.1999).' ” (Emphasis in original.)
Jones, 223 Ill. 2d at 581, quoting People v. White, 333 Ill. App. 3d
777, 781 (2002).
The Jones court held that “the charge imposed by section 5-9-1(c-9) is subject to offset.”
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Jones, 223 Ill. 2d at 587; see also 725 ILCS 5/110-14(a) (West 2004) (a defendant is entitled to a
credit of $5 for each day so incarcerated provided the amount so allowed or credited shall not exceed
the amount of the fine). Accordingly, following Jones, the defendant is entitled to a credit of $10
for the two days he was incarcerated prior to sentencing. Jones, 223 Ill. 2d at 587.
Minor Traffic Ordinance Violation Fee
Finally, the defendant argues that this court should vacate the $30 minor traffic ordinance
violation fee imposed by the trial court pursuant to section 27.2a(w)(1)(E) of the Clerks of Courts
Act. 705 ILCS 105/27.2a(w)(1)(E) (West 2004). The State concedes that the defendant was charged
by misdemeanor complaint and was not charged with a minor traffic or ordinance violation. Because
the trial court erred in imposing the fee, the State does not oppose the vacatur of this fee.
Accordingly, the $30 minor traffic ordinance violation fee imposed by the trial court, pursuant to
section 27.2a(w)(1)(E) of the Clerks of Courts Act, is vacated. 705 ILCS 105/27.2a(w)(1)(E) (West
2004).
CONCLUSION
In light of the foregoing, the defendant's conviction and sentences are affirmed as modified.
Affirmed as modified.
CAMPBELL, J., and O'BRIEN, J., concur.
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