People v. Westmoreland , 997 N.E.2d 278 ( 2013 )

2013 IL App (2d) 120082No. 2-12-0082
Opinion filed September 24, 2013
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
)
v. ) No. 11-CF-218
)
FRANK J. WESTMORELAND, JR., ) Honorable
) Blanche Hill Fawell,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
Justices Schostok and Hudson concurred in the judgment and opinion.
OPINION
¶1 Defendant, Frank J. Westmoreland, Jr., appeals his conviction of armed violence (720 ILCS
5/33A-2(a) (West 2010)) in connection with the January 17, 2011, beating of a child with a belt. He
contends that the evidence was insufficient to support his armed violence conviction because the belt
was not a category III dangerous weapon under section 33A-1(c)(3) of the Criminal Code of 1961
(the Code) (720 ILCS 5/33A-1(c)(3) (West 2010)). He also contends that a misdemeanor that was
enhanced to a felony for sentencing purposes was improperly used as the predicate felony for the
armed violence conviction and that his counsel was ineffective for failing to impeach the victim’s
mother with a time card showing that she was not at work on the day of the offense. We agree that,
2013 IL App (2d) 120082under the circumstances of this case, the belt was not a category III dangerous weapon. Accordingly,
we reverse the armed violence conviction without addressing whether a misdemeanor that was
enhanced to a felony can serve as the predicate felony for that offense. However, we hold that
counsel was not ineffective. Thus, we remand for sentencing on a merged conviction of aggravated
battery of a child (720 ILCS 5/12-4.3(a-5) (West 2010)) and otherwise affirm.
¶2 I. BACKGROUND
¶3 On February 24, 2011, defendant was indicted on multiple counts, including armed violence
and multiple counts of aggravated battery of a child. The armed violence count alleged that
defendant, while committing domestic battery, beat a household member, E.R., with a belt, causing
bodily harm. The belt was alleged to be a category III dangerous weapon under section 33A-1(c)(3).
The charge further alleged that defendant had previously been convicted of aggravated battery of a
child, which would enhance the domestic battery alleged in the indictment from a misdemeanor to
a Class 4 felony. 720 ILCS 5/12-3.2(b) (West 2010). Defendant had actually pleaded guilty to a
reduced charge of aggravated battery, but that too would serve to enhance the domestic battery to
a Class 4 felony. Id. On July 19, 2011, the trial court conducted a bench trial.
¶4 Evidence at trial showed that, on January 31, 2011, officers responded to a call reporting that
a child, E.R., was being whipped or beaten in an apartment. When officers arrived, E.R.’s sister,
S.R., urged E.R. to come out of the apartment. E.R. indicated that he had been hit with a belt by
defendant. E.R. went to the hospital to be treated, and defendant, who lived at the apartment and
babysat E.R., was arrested. Physicians who treated E.R. testified about his injuries, his treatment,
and statements he made to them about being hit with a belt.
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2013 IL App (2d) 120082¶5 E.R. testified that, on one day, defendant hit him hard four times with a belt and he went to
the hospital. E.R. also testified about another day when he was home, his sister did not have school,
and his mother was at work. He said that, on that day, defendant hit him really hard three or more
times with a belt. S.R. testified that she did not have school that day because it was Martin Luther
King, Jr., Day (January 17, 2011). She said that, while her mother was at work, she saw defendant
hit E.R. a lot of times with a belt. E.R.’s mother, L.R., also testified that S.R. did not have school
that day. L.R. said that she was at work that day. A studded belt was found at the apartment,
hanging inside of a bedroom closet. A letter defendant wrote to his aunt was admitted into evidence.
That letter stated in part: “Sents [sic] when was it illegal to give a child a whipping with a belt?”
The parties stipulated that defendant had previously been convicted of aggravated battery.
¶6 At the end of the State’s case, defendant argued that the State failed to prove him guilty of
armed violence beyond a reasonable doubt because a belt was not a category III dangerous weapon
under section 33A-1(c)(3) of the Code. He did not argue that a misdemeanor domestic battery that
has been enhanced to a felony for sentencing purposes could not be “any felony” under section 33A-
2(a) of the Code (720 ILCS 5/33A-2(a) (West 2010)).
¶7 Defendant testified that, on January 31, 2011, E.R. had been provoking the family dog and
defendant told E.R. to quit hurting the dog. Defendant said that E.R. laughed at him and that
defendant took his belt off, grabbed E.R.’s arm, and hit him four or five times. However, he denied
using the belt to hit E.R. Defendant said that he also made E.R. stand in a corner. He then left the
apartment to get S.R. from the school bus stop. Defendant denied striking E.R. on Martin Luther
King, Jr., Day and testified that he, the children, and their mother were all home together on that day.
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2013 IL App (2d) 120082¶8 As to the January 17 incident, the trial court found defendant guilty of armed violence and
aggravated battery of a child, merging the latter conviction. Defendant was sentenced to seven years’
imprisonment for the armed violence conviction.
¶9 Defendant moved for a new trial, alleging ineffective assistance of counsel based on his
counsel’s failure to impeach L.R. with a time card from her place of employment showing that she
was not at work on Martin Luther King, Jr., Day. Defendant’s counsel admitted that he received the
time card in discovery before trial and that his failure to use it to impeach L.R. was an oversight.
The court denied the motion, finding that, even if L.R. was not at work on Martin Luther King, Jr.,
Day, all of the witnesses agreed that she was not present in the apartment. The court added that
impeachment on the point would not have affected its ruling. Defendant timely appealed.
¶ 10 II. ANALYSIS
¶ 11 A. Use of a Belt as a Category III Dangerous Weapon
¶ 12 Defendant contends that the armed violence conviction must be reversed because a belt is
not a category III dangerous weapon. Defendant concedes that, if the armed violence conviction is
reversed, we should remand for him to be sentenced on the conviction of aggravated battery of a
child that was merged into the armed violence conviction.
¶ 13 The armed violence statute provides: “A person commits armed violence when, while armed
with a dangerous weapon, he commits any felony defined by Illinois Law ***.” 720 ILCS 5/33A-
2(a) (West 2010). Thus, the two essential elements of armed violence are being armed with a
dangerous weapon and committing a felony. People v. Alejos, 97 Ill. 2d 502, 506 (1983).
¶ 14 Under section 33A-1(c)(1) of the Code, a person is considered armed with a dangerous
weapon when he or she carries on or about his or her person or is otherwise armed with a category
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2013 IL App (2d) 120082I, category II, or category III weapon. 720 ILCS 5/33A-1(c)(1) (West 2010). In charging defendant
with a Class 2 felony, the State classified the belt as a category III weapon. See 720 ILCS 5/33A-
3(b) (West 2010). A category III weapon is defined as “a bludgeon, black-jack, slungshot, sand-bag,
sand-club, metal knuckles, billy, or other dangerous weapon of like character.” 720 ILCS 5/33A-
1(c)(3) (West 2010). “Because the interpretation of the armed violence statute presents a question
of law, our review is de novo.” People v. Vue, 353 Ill. App. 3d 774, 777 (2004) (citing People v.
Davis, 199 Ill. 2d 130, 135 (2002)).
¶ 15 “Our purpose when construing a statute is to ascertain and give effect to the intent of the
legislature.” Davis, 199 Ill. 2d at 135. “Courts should consider the statute in its entirety, keeping
in mind the subject it addresses and the legislature’s apparent objective in enacting it.” Id. “The
most reliable indicator of legislative intent is the language of the statute, which, if plain and
unambiguous, must be read without exception, limitation, or other condition.” Id. “Moreover,
criminal or penal statutes are to be strictly construed in favor of the accused, and nothing should be
taken by intendment or implication beyond the obvious or literal meaning of the statute.” Id.¶ 16 Under the doctrine of ejusdem generis, when a statutory clause specifically describes several
classes of persons or things and then includes “other” persons or things, the word “other” is
interpreted as meaning “other such like.” Id. at 138. “The fundamental principle of statutory
construction known as the last antecedent doctrine provides that relative or qualifying words or
phrases in a statute serve only to modify words or phrases which are immediately preceding. They
do not modify those which are more remote.” Id.¶ 17 In Davis, our supreme court, applying the above principles of statutory construction, held that
a pellet/BB gun was not a dangerous weapon within the meaning of the 1992 armed violence statute.
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2013 IL App (2d) 120082At that time, the statute had two categories of weapons, which defined a category I weapon as “a
pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or
taser ***, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto,
or any other deadly or dangerous weapon or instrument of like character.” 720 ILCS 5/33A-1(b)
(West 1992). A category II weapon was defined as “a bludgeon, blackjack, slungshot, sand-bag,
sand-club, metal knuckles, billy or other dangerous weapon of like character.” 720 ILCS 5/33A-1(c)
(West 1992).
¶ 18 The Davis court noted that pellet/BB guns were not specifically included in the detailed list
of firearms. Thus, the court concluded that it was reasonable to assume that the legislature did not
view pellet/BB guns as “firearms” and, consequently, did not intend those devices to be included
under the clause “any other firearm” in the armed violence provision. Davis, 199 Ill. 2d at 136-37.
Applying the doctrine of ejusdem generis and the last-antecedent rule, the court also determined that
pellet/BB guns did not fit within the clause “any other deadly or dangerous weapon or instrument
of like nature.” The court observed that that clause came at the end of the list of blade-type weapons
and was intended to refer only to weapons “like” the blade-type weapons that immediately preceded
it, i.e., weapons or instruments that are sharp and able to cut or stab. The court believed that the
clause was not intended to modify all of the named weapons and therefore was not intended to
include pellet/BB guns or any other weapons that are not firearms but are of like nature. Id. at 139.
The court further noted that, even if there were some ambiguity in the statute, it would be required
to interpret it in a lenient manner. Id. at 140.
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2013 IL App (2d) 120082¶ 19 For the same reasons, the Davis court also held that a pellet/BB gun was not “a bludgeon,
blackjack, slungshot, sand-bag, sand-club, metal knuckles, billy or other dangerous weapon of like
character.” 720 ILCS 5/33A-1(c) (West 1992). The court stated:
“Again, pellet and BB guns are not specifically named in this listing. Furthermore, although
a metal pellet/BB pistol might be capable of being used as a bludgeon, it is not typically
identified as such and, under the doctrine of ejusdem generis, cannot be interpreted to be ‘of
like character’ to the bludgeon-type weapons included in the category II listing.” Davis, 199
Ill. 2d at 141.
¶ 20 In Vue, we applied Davis and held that a metal flashlight was not a category III dangerous
weapon. In doing so, we specifically rejected the State’s argument that, while a flashlight’s principal
purpose was not to bludgeon, it had a similar shape and could readily be used as a bludgeon-type
weapon. Vue, 353 Ill. App. 3d at 780.
¶ 21 We began by noting that the word “bludgeon” was not defined by the statute. “Dictionaries
generally describe a bludgeon as being a short stick used as a weapon usually having one thick,
heavy, or loaded end.” Id. (citing Webster’s Third New International Dictionary 240 (1993) and
People v. Fink, 94 Ill. App. 3d 816, 817 (1981)). We then observed that section 33A-1(c)(3) directed
that the item must be a “ ‘dangerous weapon of like character.’ ” (Emphasis in original.) Id.(quoting 720 ILCS 5/33A-1(c)(3) (West 2000)). In particular, we stated:
“It does not state that an item qualifies as a bludgeon if it shares physical characteristics with
a bludgeon and is used in a bludgeon-like manner to harm the victim. Otherwise, the Davis
court would have found the pellet/BB gun to be a bludgeon within the meaning of the statute.
We believe that the legislature intended that the item used in category III under the armed
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2013 IL App (2d) 120082violence statute be an inherently dangerous weapon. Although a metal flashlight shares
physical characteristics with a bludgeon and may be capable of being used as a bludgeon, it
is not commonly identified as a dangerous weapon or commonly used as one and, under the
doctrine of ejusdem generis, cannot be interpreted under the statute to be ‘of like character’
to the bludgeon-type weapons included in the category III listing. Moreover, contrary to the
State’s argument, common sense dictates that a broken beer bottle or a shard of glass is
similar to a blade-type weapon because it has no legitimate use other than as a dangerous
weapon. On the other hand, a flashlight is not inherently a dangerous weapon and has a
legitimate use. As such, it should not be considered a dangerous weapon for purposes of the
armed violence statute.” (Emphasis in original.) Id. at 780-81.
¶ 22 Finally, we noted that there was no evidence that defendant had modified the flashlight to
make it more “bludgeon-like” so that it could be used as a weapon. Id. at 781. Accordingly, we
found that the flashlight was not a category III dangerous weapon and we vacated the defendant’s
armed violence conviction.
¶ 23 Vue applies here. Just like the flashlight in Vue, a belt is not normally used as a dangerous
weapon of a bludgeon-like character, nor is it inherently a dangerous weapon. Although it may be
capable of being used as a bludgeon, it is not commonly identified as a weapon. Further, in this case,
the State presented no evidence that the belt was altered to make it more bludgeon-like or for specific
use as a weapon. See id. Instead, the evidence was that, although the belt had metal studs, it was
simply an article of clothing. Thus, in this particular case, the belt was not a category III dangerous
weapon.
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2013 IL App (2d) 120082¶ 24 The State argues that Vue was wrongly decided, asserting that it was improper to fail to
consider how the object was used. But Vue applied well-settled principles of statutory construction
and adopted the analysis from Davis, which held that, while an object might be used as a bludgeon,
it must typically be identified as such to be interpreted as “of like character” to the bludgeon-type
weapons included in the category III listing. The State also points to a pre-Davis case from the Third
District, which held, without statutory interpretation, that the evidence was sufficient to support a
conviction based on the use of a cane as a dangerous weapon. People v. Lee, 46 Ill. App. 3d 343,
348 (1977). The State also cites a First District case that noted that a baseball bat was a dangerous
weapon when that determination was not at issue. People v. Dunlap, 315 Ill. App. 3d 1017, 1032
(2000). We do not find those cases persuasive as reasons to depart from the precedent set in Vue.
Accordingly, we reverse the armed violence conviction and remand for sentencing on the merged
conviction of aggravated battery of a child.
¶ 25 B. Ineffective Assistance of Counsel
¶ 26 Defendant next alleges, however, that he is entitled to a new trial because his trial counsel
was ineffective for failing to impeach L.R. with the time card showing that she was not at work on
Martin Luther King, Jr., Day.
¶ 27 A claim of ineffective assistance of counsel requires a defendant to establish that (1) his
attorney’s performance fell below an objective standard of reasonableness and (2) there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). “A reasonable
probability means a probability sufficient to undermine confidence in the outcome.” People v.
Rosemond, 339 Ill. App. 3d 51, 66 (2003). “The issue of whether a defendant has received
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2013 IL App (2d) 120082ineffective assistance of counsel is a mixed question of fact and law.” People v. Sharifpour, 402 Ill.
App. 3d 100, 116 (2010). “We defer to the trial court’s factual findings but review de novo whether
counsel’s omission supports an ineffective-assistance claim.” Id.¶ 28 Here, even if L.R. was not at work that day, the point at issue was whether she was at home,
and all the witnesses against defendant agreed that she was not. Whether L.R. was at work or was
otherwise away was tangential. See People v. Guerrero, 2011 IL App (2d) 090972, ¶¶ 40, 87
(affirming trial court’s finding that the fact that victim’s stepmother “was away someplace other than
work” was tangential and did not render victim’s report of sexual abuse incredible). Accordingly,
the trial court specifically found that impeachment with the time card would not have mattered. We
cannot say that there is a reasonable probability that the outcome would have been different, and
counsel thus was not ineffective.
¶ 29 III. CONCLUSION
¶ 30 Under the circumstances of this case, the belt was not a category III dangerous weapon. As
a result, we reverse the armed violence conviction and remand for sentencing on the merged
conviction of aggravated battery of a child. Defendant’s counsel was not ineffective. Thus, we
otherwise affirm the judgment of the circuit court of Du Page County.
¶ 31 Affirmed in part and reversed in part; cause remanded.
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