People v. Williams ( 2008 )

NO. 4-06-1113 Filed 7/29/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
JOEL WILLIAMS, ) No. 06CF351
Defendant-Appellant. )
) Honorable
) Charles G. Reynard,
) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
In June 2006, a jury found defendant, Joel Williams,
guilty of aggravated battery (720 ILCS 5/12-4(b)(1) (West 2006))
and domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2006)) and
not guilty of interfering with reporting domestic violence (720
ILCS 5/12-6.3(a) (West 2006)). In September 2006, the trial
court sentenced defendant to five years' imprisonment for aggra-
vated battery followed by a two-year term of mandatory supervised
release (MSR) and three years' imprisonment for domestic battery
followed by a one-year term of MSR.
Defendant appeals, arguing (1) the trial court erred by
admitting into evidence the victim's written statement to rebut
defendant's claim that the victim was intoxicated on the night in
question; (2) the court's response to a jury question was incor-
rect and inconsistent with the charging instrument; (3) defen-
dant's conviction for domestic battery violates the one-act, one-
crime rule because the jury instructions did not apportion the
acts that defendant allegedly committed; and (4) the court erred
in sentencing defendant to two years' MSR on his aggravated-
battery conviction.
We affirm defendant's convictions but remand with
directions to correct the sentencing judgment. The trial court
did not abuse its discretion by admitting the victim's statement
into evidence for a limited purpose. The court's response to the
jury's question was legally accurate, and the variance between
the charging instrument and the evidence at trial was not fatal.
Defendant's conviction for domestic battery did not violate the
one-act, one-crime rule because it was based on different acts
and, as charged, domestic battery was not a lesser-included
offense of aggravated battery. However, the State concedes, and
we agree, that the court erred by sentencing defendant to two
years' MSR on his aggravated-battery conviction. Therefore, we
remand for issuance of an amended sentencing judgment to reflect
a one-year period of MSR for defendant's aggravated-battery
conviction.
Defendant also asserts that his success on the MSR
issue prevents the State from obtaining its costs for this
appeal. We disagree and conclude the State is entitled to its
costs for this appeal.
I. BACKGROUND
In April 2006, the State charged defendant with aggra-
vated battery (count I), domestic battery (count II), and inter-
fering with reporting of domestic violence (count III). Count I
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alleged that defendant knowingly and without legal justification
made physical contact of an insulting or provoking nature with
Debra Billups by holding a knife, a deadly weapon, to her throat.
Count II alleged that defendant knowingly and without legal
justification made physical contact of an insulting or provoking
nature with Billups, a family or household member, by putting his
hands around her neck. Count II was charged as a Class 4 felony
because defendant had been previously convicted of domestic
battery. See 720 ILCS 5/12-3.2(b) (West 2006).
On June 19, 2006, the jury trial commenced. In his
opening statement, defense counsel informed the jury that the
evidence would show that Billups was so drunk she could not
remember what happened that evening.
The State called Billups to testify, as well as two of
the police officers who responded to the 9-1-1 call, Kendra
DeRosa and Jwone Hughes. The evidence indicated that on April 4,
2006, at approximately 11:45 p.m., the police were called to the
mobile home where defendant and Billups resided. Defendant left
the residence at the suggestion of the police but later returned
to the mobile home. At approximately 3 a.m. on April 5, 2006,
the police were again dispatched to defendant and Billups' home.
Billups testified that when defendant returned to the
home, she let him in but locked him out of their bedroom. Accord-
ing to Billups, defendant kicked the bedroom door open and choked
her until she blacked out. When she regained consciousness,
defendant poked her in her head, side, and back with a knife and
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asked her "where did [she] want it." Billups managed to call 9-
1-1 during the incident.
On cross-examination, Billups admitted she was intoxi-
cated that evening and had consumed six beers and four shots of
alcohol. However, both police officers testified that Billups
did not appear intoxicated. Specifically, Officer Hughes testi-
fied that he had had contact with Billups in the past and had
seen her intoxicated. Officer Hughes saw no indication that
Billups was "heavily intoxicated" the night in question. Officer
DeRosa testified that Billups did not exhibit the signs of
intoxication DeRosa typically observed in intoxicated persons,
such as difficulty following verbal direction, confusion, blood-
shot and glassy eyes, "stammer[ing] around," and lack of depth
perception.
Billups also admitted on cross-examination that she had
a phone conversation with an investigator from defense counsel's
office the Friday prior to trial. Billups admitted she told the
investigator that she was so intoxicated the night in question
that she did not remember what occurred. Billups testified,
however, that since speaking to the investigator, the events of
the evening had come back to her. On redirect, Billups testified
that her testimony at trial was based on her memory and that she
remembered the events.
Officer DeRosa testified that when she arrived at the
mobile home, Billups told her that defendant had choked her and
held a knife to her head and various parts of her body. The
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officers found a knife in the kitchen garbage can. Officer
DeRosa saw red marks around Billups' neck and a scratch on her
right shoulder. Pictures of those injuries were admitted at
trial. Officer DeRosa also felt the top of Billups head for an
indentation Billups claimed was caused when defendant stuck the
knife to her head. Officer DeRosa felt a small indentation.
Both officers testified that they witnessed Billups
complete and sign a written statement on April 5, 2006, State's
exhibit No. 5. Officer DeRosa testified that Billups followed
her instruction to place a large "X" in the empty area on the
page and initial it so as to show nothing was added. Officer
Hughes testified that Billups stayed within the lines and the
statement was legible.
Defendant testified on his own behalf. He testified
that Billups was intoxicated on the night in question. Defendant
denied attempting to strangle Billups and denied ever using a
knife on her.
The State sought to publish to the jury Billups'
statement, exhibit No. 5, for the limited purpose of countering
defendant's testimony that Billups was intoxicated. Defense
counsel objected on the basis that the contents of the statement
were highly prejudicial and the State failed to present an expert
to testify that the handwriting was inconsistent with someone who
was highly intoxicated.
The trial court overruled defense counsel's objections
and admitted the exhibit for the limited purpose of considering
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whether Billups was highly intoxicated on the night in question.
The court instructed the jury as follows:
"I have admitted State's [e]xhibit [No.] 5.
State's [e]xhibit [No.] 5 was identified as
the handwritten statement of Debra Billups[;]
however, I have admitted it for a limited
purpose rather than for all purposes of con-
sideration. The limited purpose for which
you may consider this exhibit is to consider
whether and/or to what extent Debra Billups
was intoxicated on the night in question and
not for any other purpose.
In an effort to limit your consideration
of the exhibit to that limited purpose,
State's [e]xhibit [No.] 5 will be published
to you or handed to you here in the court-
room, and you may look at it for several
minutes if you wish. But, otherwise, it
won't be going back to the jury room for your
more detailed consideration."
While the exhibit was passed to the jurors, defense
counsel approached the bench. The following exchange occurred:
"MR. DODDS [defense counsel]: Your Hono-
r, I want to point out to the [c]ourt that it
appears that one of the jurors is writing
down what's contained in the exhibit. Cer-
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tainly didn't anticipate this, but I think it
raises a point that was addressed by counsel
of introducing the evidence in the first
place.
THE COURT: Okay.
(Brief interruption.)
(The following proceedings were had in
the presence and hearing of the jury).
MR. GRIENER [assistant State's Attor-
ney]: I believe they're finished."
The record contains no additional information about this inci-
dent.
In closing argument, the assistant State's Attorney
apportioned the two acts--the choking and the use of the knife--
between the two offenses. That is, the assistant State's Attor-
ney argued that defendant committed domestic battery when he
choked Billups and committed aggravated battery when he put the
knife on various parts of Billup's body. The only use the State
made of exhibit No. 5 in closing argument was to ask the jury to
consider whether the handwriting appeared to be that of a "person
who was drunk out of [her] mind." The trial court then in-
structed the jury, including the instruction that "evidence that
was received for a limited purpose should not be considered by
you for any other purpose" (People's tendered instruction No. 1,
based on Illinois Pattern Jury Instructions, Criminal, No. 1.01
(4th ed. 2000)).
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During deliberations, the jury submitted the following
question: "By using a deadly weapon, does that mean having
physical contact with the weapon?" Following a discussion with
counsel, and at defense counsel's request, the court recessed to
give the parties the opportunity to review the case law regarding
whether actual physical contact with the weapon must be made.
After the recess, the State submitted People v. Avant,
86 Ill. App. 3d 268, 409 N.E.2d 296 (1980), for the proposition
that aggravated battery under section 12-4(b) of the Criminal
Code of 1961 (Criminal Code) (720 ILCS 5/12-4(b) (West 2006))
does not require that the deadly weapon be the instrument of the
battery. Defense counsel argued that Avant was distinguishable
and asked the court to respond to the jury's question by refer-
ring it to the instructions already given. The trial court
refused defense counsel's request. Defense counsel then re-
quested the court seek more clarification from the jury about
what it was asking.
The trial judge found that "[w]hile the possibility of
misunderstanding exists, I don't believe a misunderstanding
exists." The court noted that if the response was not what the
jury was seeking, the jury would ask another question. The
court, over defense counsel's objection, responded to the jury's
question as follows: "No, the law does not require that the
deadly weapon be the instrument of the physical contact." There-
after, the jury returned a verdict finding defendant guilty of
aggravated battery and domestic battery and not guilty of inter-
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ference with reporting domestic violence.
In July 2006, defendant filed a posttrial motion.
Defendant raised, among other things, numerous objections to the
admission of exhibit No. 5, including that (1) the exhibit lacked
a proper foundation; (2) the exhibit was duplicative of other
evidence; (3) the exhibit constituted improper bolstering and
hearsay; (4) the exhibit's prejudice outweighed its probative
value; (5) the limited purpose for which the exhibit was admitted
required expert testimony; (6) the trial court should have first
ascertained the meaning of the jury's inquiry; and (7) the court
erred by instructing the jury with the additional language from
the Avant case. In September 2006, the court denied the motion.
On September 12, 2006, the trial court sentenced
defendant to five years' imprisonment on count I followed by a
two-year MSR term, and three years' imprisonment on count II
followed by a one-year MSR term. Defendant filed a motion to
reconsider sentence, which the court denied.
This appeal followed.
II. ANALYSIS
A. Trial Court Did Not Abuse Its Discretion by
Admitting Billups' Statement for a Limited Purpose
Defendant argues the trial court erred by admitting
into evidence Billups' written statement to rebut defendant's
claim that Billups was intoxicated on the night in question.
1. Standard of Review
When evidence is competent for only one purpose, it may
be admitted for that limited purpose. People v. Libman, 249 Ill.
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App. 3d 451, 457, 618 N.E.2d 1129, 1133 (1993). However, only
relevant evidence should be admitted, and even relevant evidence
may be excluded if "its prejudicial effect substantially out-
weighs its probative value." People v. Ransom, 319 Ill. App. 3d
915, 921-22, 746 N.E.2d 1262, 1268-69 (2001).
The admission of evidence is within the discretion of
the trial court. People v. Davis, 322 Ill. App. 3d 762, 765, 751
N.E.2d 65, 67 (2001); see also People v. Alsup, 373 Ill. App. 3d
745, 759, 869 N.E.2d 157, 170 (2007) (holding that "[t]he deter-
mination of whether the probative value of evidence is outweighed
by its prejudicial effect" is within the discretion of the trial
court). Absent prejudice to the defendant, this court will not
interfere with the trial court's discretion. People v. Spann, 97
Ill. App. 3d 670, 677, 422 N.E.2d 1051, 1057 (1981); see also
Davis, 322 Ill. App. 3d at 765, 751 N.E.2d at 67 (noting that the
appellate court will reverse if the trial court admits into
evidence prejudicial exhibits that lack the requisite founda-
tion).
2. Trial Court Did Not Admit Statement as Substantive Evidence
Defendant first argues the admission of the statement
constituted an improper admission of a prior consistent state-
ment. Defendant asserts the jury may have incorrectly believed
that Billups' handwriting exhibited lucidity and control that was
inconsistent with any level of alcohol impairment, thereby
mitigating the defense's assertion that she was too intoxicated
to offer credible trial testimony about the incident.
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Defendant is correct that a witness's trial testimony
may not be bolstered by the admission of prior consistent state-
ments made out of court. People v. Ware, 323 Ill. App. 3d 47,
51, 751 N.E.2d 81, 85 (2001). However, the record clearly
demonstrates the trial court did not admit the statement into
evidence substantively, but only for the purpose of showing the
jury Billups' handwriting on the night in question. The evidence
was relevant (as discussed further below), and the court gave a
limiting instruction. As such, the court did not abuse its
discretion. See, e.g., People v. Illgen, 145 Ill. 2d 353, 376,
583 N.E.2d 515, 525 (1991) (finding that the limiting instruction
reduced the prejudicial effect of the admission of other-crimes
evidence).
3. The Record Does Not Support Defendant's Assertion That
the Jury Could Not Follow Limiting Instruction
Defendant next argues the limiting instruction was
insufficient to mitigate the prejudicial effect. According to
defendant, in this situation the jury could not follow the trial
court's instruction, as evidenced by the fact that at least one
juror disregarded the court's limiting instruction by writing
down the substance of the statement.
Defendant compares the admission of the statement in
this instance to cases where a nontestifying codefendant's
extrajudicial statement was admitted at a joint trial with a
limiting instruction that the jury disregard the statement as
evidence of the defendant's guilt or innocence. See People v.
Duncan, 124 Ill. 2d 400, 530 N.E.2d 423 (1988); see also Bruton
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v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620(1968). In Duncan, the court noted:
"Although it is often reasonable to
assume that a jury has followed a trial
judge's limiting instructions regarding evi-
dence admitted for one purpose but not for
another, 'there are some contexts in which
the risk that the jury will not, or cannot,
follow instructions is so great, and the
consequences of failure so vital to the de-
fendant, that the practical and human limita-
tions of the jury system cannot be ignored.
[Citations.]' (Bruton, 391 U.S. at 135, 20 L.
Ed. 2d at 485, 88 S. Ct. at 1627.)" Duncan,
124 Ill. 2d at 406, 530 N.E.2d at 426.
However, this context differs greatly from the situa-
tion involving a codefendant's extrajudicial statement implicat-
ing the defendant. In fact, since Bruton, the United States
Supreme Court has permitted the use at a joint trial of a
nontestifying codefendant's confession, even where the defendant
is linked to the confession through other evidence, if the
confession is redacted to eliminate references to the defendant
and if the jury is instructed not to use the confession against
the defendant. See Richardson v. Marsh, 481 U.S. 200, 211, 95 L.
Ed. 2d 176, 188, 107 S. Ct. 1702, 1709 (1987). In this case, the
probability that the jury would not be able to follow the in-
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struction is not present. See, e.g., People v. Gonzalez, 379
Ill. App. 3d 941, 954-55, 884 N.E.2d 228, 239-40 (2008) (finding
no error in the admission, for a limited purpose and with a
limiting instruction, of an out-of-court statement by a person
stating she knew the defendant killed the victim; a strong
presumption exists that the jury follows a limiting instruction,
and nothing in the record rebutted that presumption).
As "proof" that the jury could not follow the instruc-
tion, defendant points to the indication in the record that at
least one juror was writing down Billups' statement verbatim.
However, defendant has forfeited that argument. Although defense
counsel informed the court that it appeared that one of the
jurors was writing down verbatim the statement, nothing in the
record indicates whether defense counsel asked the court to stop
the juror from doing so, otherwise question the jury, or look at
the jurors' notes. Also, based on this record, this court cannot
determine whether the juror was writing down the statement
verbatim or taking notes on his or her impression of the state-
ment and its legibility. Because defendant failed to express his
dissatisfaction with the trial court's handling of the matter in
the trial court, he has forfeited the issue on appeal. See,
e.g., Zukosky v. Grounds, 85 Ill. App. 3d 355, 363, 406 N.E.2d
848, 854 (1980) (finding that plaintiff's counsel acquiesced in
the trial court's disposition of the alleged misconduct--alleged
communication between the defendant and a juror--by failing to
express dissatisfaction in the trial court, thereby forfeiting
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the issue for review).
4. Trial Court's Admission of the Statement for a Limited
Purpose Was Not an Abuse of Discretion
Finally, defendant argues the purpose for the admission
of the statement--for the limited purpose of considering whether
Billups was highly intoxicated on the night in question--was
illusory because the jury could not determine the state of her
intoxication by reading the statement, examining her handwriting,
and observing her ability to stay in the lines.
Observations of signs of intoxication are within the
competence of the average adult. See, e.g., People v. Workman,
312 Ill. App. 3d 305, 310, 726 N.E.2d 759, 762-63 (2000) (noting
that "even a layperson is competent to testify regarding a
person's intoxication from alcohol, because such observations are
within the competence of all adults of normal experience").
While certainly not conclusive, the suggestion that an intoxi-
cated person would not write neatly and within the lines is a
reasonable one. See, e.g,, People v. Jones, 65 Ill. App. 3d
1033, 1036, 383 N.E.2d 239, 241 (1978) (noting that the
"[d]efendant's handwriting appearing on the waiver suggests no
appearance of intoxication"); State v. Sanders, 130 Ohio App. 3d
789, 795, 721 N.E.2d 433, 437 (1998) (finding the trial court
erred by excluding a copy of the defendant's signature shortly
after her arrest to refute the trooper's testimony that the
defendant's motor skills were impaired due to the influence of
alcohol. "When a signature appears neat and legible, the infer-
ence that can be made is that the signer's motor skills were not
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impaired").
Even if the trial court erred by admitting the exhibit
for the limited purpose of showing Billups' handwriting, any
error was harmless. The evidence against defendant was over-
whelming, given the trial testimony from Billups and the officers
and the pictures of Billups' injuries. See, e.g., People v.
Lombardi, 305 Ill. App. 3d 33, 44, 711 N.E.2d 426, 434 (1999)
(the improper admission of evidence is harmless beyond a reason-
able doubt where the evidence against the defendant is
overwhelming). Moreover, the statement is not particularly
consistent with Billups' trial testimony, as it contains no
reference to defendant choking Billups.
Although the trial court did not abuse its discretion
by admitting the statement for the limited purpose of showing the
jury Billups' handwriting, a better practice would include
indicating on the record the length of time the jurors were
allowed to examine the document. In addition, once defense
counsel raised the possibility that one of the jurors was copying
the statement, the court should put on the record what tran-
spired, review the jurors' notes, and possibly voir dire the jury
on the issue.
B. Trial Court's Response to the Jury's Question Was Legally
Correct, and Defendant Forfeited the Argument That Any
Variance Between the Indictment and the Evidence Was Fatal
Defendant next argues the trial court's response to the
jury's question was incorrect and not consistent with the charg-
ing instrument. Specifically, defendant asserts that (1) aggra-
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vated battery under subsection (b) of section 12-4 of the Crimi-
nal Code (720 ILCS 5/12-4(b) (West 2006)) requires that the
offender actually use a deadly weapon in the commission of a
battery; and (2) the response was inconsistent with count I of
the indictment which alleged that defendant "knowingly made
physical contact of an insulting or provoking nature with Debra
Billups by holding a knife, a deadly weapon, to her throat."
The State argues defendant has forfeited these issues
on appeal. Specifically, the State asserts that in the trial
court, defendant only suggested the court refer the jury back to
the instruction originally given and that Avant was factually
distinguishable. According to the State, defendant never argued
the response created a prejudicial variance with the language of
the indictment.
The Illinois Supreme Court recently held, in regard to
a jury instruction, that a defendant need not object to the
instruction on the identical grounds in the trial court as on
appeal to avoid forfeiture. See People v. Mohr, 228 Ill. 2d 53,
64-65, 885 N.E.2d 1019, 1025 (2008) (finding that the defendant's
objection at trial to an instruction on the basis that "once the
jurors heard the information alleging that the defendant was
provoked by the victim, the State was required to 'back that up'"
did not forfeit the argument raised in his posttrial motion and
on appeal that no evidence of provocation was presented because
the objection was "close enough"). Here, defendant raised
several objections to the trial court's response to the jury
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inquiry both at trial and in his posttrial motion. At trial,
defendant challenged the Avant case as distinguishable. This
argument was "close enough" to his argument on appeal that the
court misstated the law in its response. However, none of
defendant's objections at trial were similar to the second
argument he now raises on appeal--that the response to the jury
question was inconsistent with count I of the indictment.
Therefore, defendant has forfeited that argument on appeal.
Whether the court misstated the law is a question of
law, and our review is de novo. People v. Gray, 346 Ill. App. 3d
989, 994, 806 N.E.2d 753, 757 (2004). The jury submitted the
following question: "By using a deadly weapon, does that mean
having physical contact with the weapon?" The trial court
responded as follows: "No, the law does not require that the
deadly weapon be the instrument of the physical contact."
Defendant argues on appeal that the State had to show more than
mere possession of the knife and that this court's decision in
Avant, 86 Ill. App. 3d 268, 409 N.E.2d 296, the case relied on by
the trial court, is distinguishable.
In the Avant case, the defendant, with his left hand,
knocked the victim's cap off his head. Avant, 86 Ill. App. 3d at
270, 409 N.E.2d at 297. After the cap was knocked off his head,
the victim noticed the defendant had a pistol halfway out of his
pocket with his right hand on the pistol. Avant, 86 Ill. App. 3d
at 270, 409 N.E.2d at 297. The defendant argued that because he
did not knock off the victim's hat with his gun and the victim
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did not see the gun until his cap was knocked off, defendant
could not be convicted of aggravated battery. Avant, 86 Ill.
App. 3d at 270, 409 N.E.2d at 297. This court disagreed, con-
cluding that aggravated battery does not require that "the deadly
weapon be the instrument of the battery." Avant, 86 Ill. App. 3d
at 270, 409 N.E.2d at 297. Specifically, we stated:
"The Committee Comments to section 12-4
of the Illinois Criminal Code of 1961 (Ill.
Ann. Stat., ch. 38, par. 12-4, Committee
Comments, at 465 (Smith-Hurd 1979)) state[]
that section 12-4(b) 'involves a battery
committed under aggravated circumstances from
which great harm might and usually does re-
sult (although it did not in the particular
case), and therefore it constitutes a more
serious threat to the community than a simple
battery.' Ostensibly, section 12-4(b) was
intended to reach the type of conduct engaged
in here. Moreover, we agree with the State
that, although the weapon was not used to
make the actual contact complained of, the
weapon was used to make the contact more
insulting or provocative. The statute does
not require that the deadly weapon be the
instrument of the battery." Avant, 86 Ill.
App. 3d at 270, 409 N.E.2d at 297.
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Clearly, the trial court did not err by advising the jury, in
response to its inquiry, that the "law does not require that the
deadly weapon be the instrument of the physical contact."
Defendant also argues the trial court's response to the
jury question was inconsistent with count I of the indictment,
which alleged that defendant "knowingly made physical contact of
an insulting or provoking nature with Debra Billups by holding a
knife, a deadly weapon, to her throat." Defendant argues the
State had to prove that defendant held the knife to Billups'
throat. As previously noted, defendant has forfeited this
argument by failing to raise it before the trial court. Even if
this court were to address the issue on the merits, we would find
no error.
"In order for a variance between an indictment and
proof at trial to be fatal, the difference must be material and
of such a character as to mislead defendant in his defense or
expose him to double jeopardy." People v. Burdine, 362 Ill. App.
3d 19, 24, 839 N.E.2d 573, 577 (2005) (involving alleged variance
in the indictment which alleged that the defendant struck the
fireman and the evidence at trial that the defendant bit the
fireman). No such variance appears in this case.
Here, the indictment identified the victim, the nature
of the incident, and the date and place of the incident. See
Burdine, 362 Ill. App. 3d at 24, 839 N.E.2d at 577. Defendant
does not face the risk of double jeopardy because the judgment
could be used to bar a subsequent prosecution for the same
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conduct.
Moreover, defendant was not misled by the alleged
variance in the indictment. Defendant knew what happened and why
he was arrested. See Burdine, 362 Ill. App. 3d at 24, 839 N.E.2d
at 577 (finding a difference between the indictment, which
alleged the defendant struck the fireman, and the evidence at
trial that the defendant bit the fireman was not a fatal vari-
ance). The indictment apprised defendant of the offense charged
sufficiently for presentation of his defense.
Defendant cites People v. Daniels, 75 Ill. App. 3d 35,
393 N.E.2d 667 (1979), which is distinguishable. In that case,
the defendants were charged with armed robbery and the indictment
alleged that the defendants took United States currency from the
victim. Daniels, 75 Ill. App. 3d at 40, 393 N.E.2d at 672. The
evidence at trial, however, only related to theft of a watch.
Daniels, 75 Ill. App. 3d at 40, 393 N.E.2d at 672. Moreover, the
State did not prove that the victim wore or owned a watch or that
the watch was taken by one of the defendants. Daniels, 75 Ill.
App. 3d at 41, 393 N.E.2d at 673. Therefore, the court reversed
the armed-robbery convictions. Daniels, 75 Ill. App. 3d at 41,
393 N.E.2d at 673.
In contrast here, the knife was involved whether
defendant held it to Billups' neck or other parts of her body.
Unlike Daniels, the variance was not so material as to warrant a
new trial and did not mislead defendant in preparing his defense.
C. Defendant's Domestic-Battery Conviction Does Not
Violate the One-Act, One-Crime Rule
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Defendant next argues that if this court finds the
trial court's response to the jury inquiry was correct and the
knife did not have to be the instrument of physical contact, this
court must vacate defendant's domestic-violence conviction to
insure that the one-act, one-crime rule is not violated. While
defendant forfeited this issue by raising it for the first time
on appeal, the plain-error doctrine permits review of the error.
See People v. Harvey, 211 Ill. 2d 368, 389, 813 N.E.2d 181, 194
(2004) (holding that the plain-error rule permitted review of the
one-act, one-crime issue because a violation and the potential
for surplus conviction and sentence affected the integrity of the
judicial process).
To determine whether multiple convictions may properly
be entered, courts must engage in a two-step analysis. First,
the court must determine whether the defendant's conduct con-
sisted of separate acts or a single physical act. People v.
Rodriguez, 169 Ill. 2d 183, 186, 188, 661 N.E.2d 305, 306, 307-08
(1996) (finding that the aggravated-criminal-sexual-assault
offense and the home-invasion offense were based on separate
acts). An "act" is "any overt or outward manifestation which will
support a different offense." People v. King, 66 Ill. 2d 551,
566, 363 N.E.2d 838, 844-45 (1977) (finding offenses of rape and
burglary were based on separate acts). While multiple convic-
tions based on the same physical act are improper (Rodriguez, 169
Ill. 2d at 186, 661 N.E.2d at 306)), a person can be guilty of
two offenses even when a common act is part of both offenses
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(Rodriguez, 169 Ill. 2d at 188, 661 N.E.2d at 308).
Second, if a defendant committed more than one act, the
court must then determine whether any of the offenses are lesser-
included offenses. Rodriguez, 169 Ill. 2d at 186, 661 N.E.2d at
306. To determine whether an offense is a lesser-included
offense, courts look to the charging instrument. People v.
Bussan, 306 Ill. App. 3d 836, 839, 715 N.E.2d 820, 822 (1999).
Under this approach, "an offense is a lesser[-]included offense
if it is described by the charging instrument of the greater
offense." Bussan, 306 Ill. App. 3d at 839, 715 N.E.2d at 822.
A lesser-included offense is "established by proof of
the same or less than all of the facts or a less[-]culpable
mental state (or both), than that which is required to establish
the commission of the offense charged." 720 ILCS 5/2-9(a) (West
2006). However, "[a] charging instrument need not expressly
allege all the elements of the [offense] if those elements can be
inferred from the language of the charging instrument." People
v. Baldwin, 199 Ill. 2d 1, 8, 764 N.E.2d 1126, 1130 (2002). If
an offense is a lesser-included offense, multiple convictions are
improper. Rodriguez, 169 Ill. 2d at 186, 661 N.E.2d at 306-07.
If the offense is not a lesser-included offense, then multiple
convictions are permissible. Rodriguez, 169 Ill. 2d at 186, 661
N.E.2d at 306-07. Our review is de novo. People v. Milton, 309
Ill. App. 3d 863, 868, 723 N.E.2d 798, 802 (1999).
For the State to properly obtain multiple convictions
for connected acts that might be treated as a series of offenses,
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the State must apportion the acts to the offenses in the charging
instrument and at trial. See People v. Crespo, 203 Ill. 2d 335,
345, 788 N.E.2d 1117, 1123 (2001). In this case, the State
charged defendant with aggravated battery based on holding a
knife to Billups' throat and with domestic battery for putting
his hands around Billups' neck. At trial, during closing argu-
ments the prosecutor clearly distinguished between the separate
acts for the separate charges. Therefore, defendant's conduct
consisted of separate acts and not a single physical act.
Defendant argues that the jury instructions did not
apportion the charges. However, defendant did not object to the
jury instructions and, therefore, has forfeited any alleged
error. People v. Anderson, 325 Ill. App. 3d 624, 636, 759 N.E.2d
83, 93 (2001) (failure to object to a jury instruction forfeits
the issue on appeal). Moreover, even if the issue were not
forfeited, defendant cites no authority for the argument that the
jury instructions must apportion the acts. Finally, the evidence
adduced at trial indicated discreet, insulting, or provocative
acts for domestic battery and aggravated battery. Billups
testified that defendant choked her until she blacked out.
Billups further testified that defendant poked her head, sides,
and back with a kitchen knife.
Having found that defendant committed more than one
act, this court must next determine whether domestic battery or
aggravated battery is the lesser-included offense of the other.
Rodriguez, 169 Ill. 2d at 186, 661 N.E.2d at 306. The charging
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instrument alleged that defendant committed the offense of
aggravated battery:
"IN THAT HE KNOWINGLY AND WITHOUT LEGAL
JUSTIFICATION MADE PHYSICAL CONTACT OF AN
INSULTING OR PROVOKING NATURE WITH DEBRA
BILLUPS BY HOLDING A KNIFE, A DEADLY WEAPON,
TO HER THROAT ***."
The charging instrument alleged that defendant committed the
offense of domestic battery as follows:
"IN THAT HE KNOWINGLY AND WITHOUT LEGAL JUS-
TIFICATION MADE PHYSICAL CONTACT OF AN IN-
SULTING OR PROVOKING NATURE WITH DEBRA
BILLUPS, A FAMILY OR HOUSEHOLD MEMBER, BY
PUTTING HIS HANDS AROUND HER NECK, SAID DE-
FENDANT HAVING BEEN PREVIOUSLY CONVICTED OF
THE OFFENSE OF DOMESTIC BATTERY IN MCLEAN
COUNTY CASE 2005 CM 1300 ***."
Clearly, the aggravated-battery conviction required a
deadly weapon, an element the domestic-battery charge did not
require, and the domestic battery had elements that the aggra-
vated battery did not require--Billups' identity as a family or
household member and defendant's previous conviction for domestic
battery. See People v. Peacock, 359 Ill. App. 3d 326, 335, 833
N.E.2d 396, 404 (2005) (finding, based on the charging instru-
ment, that aggravated battery and domestic violence were not
lesser-included offenses of home invasion). Therefore, defen-
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dant's conviction for domestic battery does not violate the one-
act, one-crime rule.
D. Sentencing Judgment Must Be Amended To Show a One-Year
Period of MSR for the Aggravated-Battery Conviction
Defendant argues the trial court erred in sentencing
him to two years' MSR on his aggravated-battery conviction. The
State concedes the error, and we accept that concession.
Aggravated battery is a Class 3 felony. 720 ILCS 5/12-
4(e)(1) (West 2006). For a Class 3 felony, the MSR term is one
year. 730 ILCS 5/5-8-1(d)(3) (West 2006). Therefore, on remand,
the trial court shall amend the sentencing judgment to reflect a
one-year period of MSR for the aggravated-battery conviction.
E. The State Is Entitled to Costs for This Appeal
In its appellee brief, the State seeks costs pursuant
to section 4-2002 of the Counties Code (55 ILCS 5/4-2002 (West
2006)). In his reply brief, defendant objects, noting that costs
should not be assessed against him because he received partial
relief as a result of his appeal.
However, "[t]he successful defense of any part of a
criminal judgment challenged on appeal entitles the State to a
per diem fee and costs for its efforts." People v. Smith, 133
Ill. App. 3d 613, 620, 479 N.E.2d 328, 333 (1985) (assessing
costs on appeal where the defendant's conviction and sentence
were affirmed with the exception that the defendant was given $10
credit against fines for two days spent in jail prior to trial),
citing People v. Nicholls, 71 Ill. 2d 166, 178, 374 N.E.2d 194,
199 (1978) (holding that the appeal fee shall be taxed as costs
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unless judgment is entered in favor of the accused in full).
Because the State has in part successfully defended a portion of
the criminal judgment, we grant the State its statutory assess-
ment of $50 against defendant as costs of this appeal.
III. CONCLUSION
For the reasons stated, we affirm defendant's convic-
tions for aggravated battery and domestic battery but remand for
issuance of an amended sentencing judgment to reflect a one-year
period of MSR for defendant's aggravated-battery conviction. As
part of our judgment, we grant the State's request that defendant
be assessed $50 as costs for this appeal.
Affirmed as modified and remanded with directions.
KNECHT and TURNER, JJ., concur.
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