People v. Mrizek , 2024 IL App (2d) 230262-U ( 2024 )

2024 IL App (2d) 230262-UNo. 2-23-0262
Order filed June 20, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 21-CM-2238
)
SCOTT S. MRIZEK, ) Honorable
) Bianca Camargo,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court.
Justices Schostok and Mullen concurred in the judgment.
ORDER
¶1 Held: Where the domestic battery count of which defendant was convicted alleged that
he threw keys at the victim and pushed her, the fact that the State proved only that
he pushed the victim did not create a fatal variance between the charge and the
proof. Either alleged act would have been sufficient in itself to support a domestic
battery conviction. Moreover, the count alleged the essential elements of the
offense and the variance related only to the particular manner by which defendant
committed domestic battery. Finally, the phrasing of the count did not prejudice
defendant in preparing his defense.
¶2 Defendant, Scott S. Mrizek, appeals from his conviction, following a bench trial, of
domestic battery based on insulting or provoking contact (720 ILCS 5/12-3.2(a)(2) (West 2020)).
Defendant contends that his conviction must be reversed because the complaint alleged he
2024 IL App (2d) 230262-Ucommitted two acts of contact with the victim but the trial court found that the State proved that
he committed only one of the acts. We affirm.
¶3 I. BACKGROUND
¶4 On December 6, 2021, defendant was charged by complaint with domestic battery (720
ILCS 5/12-3.2 (West 2020)). The complaint bore the caption of the circuit court of Kane County
and included defendant’s name, address, phone number, date of birth, physical description, and
driver’s license number. It also included the complainant’s name, address, and phone number.
¶5 The complaint was not expressly subdivided into counts, but there were two preprinted
boxes for “Alleged Offense,” each indicating “Domestic Battery” and citing a different subsection
of the domestic battery statute. See 720 ILCS 5/12-3.2(a)(1), (a)(2) (West 2020). The complaint
provided the date of the offense and further stated:
“The within named complainant states under oath that on or about the date set forth
herein, in said County, the defendant committed the offense set forth herein, in violation
of the Chapter and Section of the Illinois Compiled Statutes, or the Ordinances of the City
or Village, set forth herein, in that said defendant:
720 ILCS 5/12-3.2(a)(1)
knowingly caused bodily harm to [the victim], a family member of the defendant, in that
said defendant threw keys at [the victim], which hit her chest and caused bruising. Said
defendant then pushed [the victim] onto the ground with his hand causing a scratch behind
her left ear and a broken fingernail.
720 ILCS 5/12-3.2(a)(1) [sic]
knowingly made physical contact of an insulting nature with [the victim], a family member
of said defendant, in that said defendant threw keys at [the victim], which hit her chest and
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2024 IL App (2d) 230262-Ucaused bruising. Said defendant then pushed [the victim] onto the ground with his hand
causing a scratch behind her left ear and a broken fingernail.”
¶6 The matter proceeded to a bench trial. The State presented testimony from the victim and
two police officers. Defendant testified on his own behalf. We summarize the relevant evidence.
¶7 The victim testified that she and defendant had two children—a 16-year-old son and a 12-
year-old daughter. On December 2, 2021, at approximately 10 a.m., she and defendant were at
home and had an argument about their son. During the argument, defendant indicated that he
wanted a divorce. He then left the house. The victim telephoned defendant and told him that she
too wanted a divorce and that she wanted to talk. Defendant returned home at 11:30 a.m.
¶8 According to the victim, when defendant returned, they began to discuss getting a divorce.
Defendant was seated on a chair in the kitchen, and the victim was standing about 15 feet away,
in front of the sink, facing defendant. The victim was wearing only a nightgown and holding a
cup of coffee. While they were talking, defendant picked up his keys from the kitchen table and
threw them at her. The key ring contained about 20 keys and several additional items, including
“a short mallet-type *** heavy-weighted *** defensive weapon” and “a Boy Scout can opener.”
According to the victim, the keys struck her “right chest.” Defendant then “immediately charged”
at her. She “backed up,” and defendant “put his hands around [her] neck.” They ended up in the
dining room. Defendant was “holding and shoving, like pushing.” Defendant then “shoved [her]
down.” The victim ended up between the dining room table and the wall. Defendant proceeded
to “swipe” the items that were on the dining room table on top of her, which included “makeup,
blow dryers, curling irons, [and] plastic containers that hold makeup.” She testified that “the breath
was knocked out of [her]” and she “was scared.” About five minutes later, after the victim helped
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2024 IL App (2d) 230262-Udefendant pack a bag and put socks on (he was physically limited because of recent surgery),
defendant left the home.
¶9 The State introduced into evidence nine photographs of the victim’s alleged injuries. The
victim testified that she had taken the photographs. People’s exhibit Nos. 1 through 5 depicted a
bruise on the victim’s chest “from the keys.” People’s exhibit No. 6 depicted some “light” bruising
on the victim’s hand “[f]rom the shoving and the falling and the grabbing.” People’s exhibit No. 7
depicted the victim’s wrist with “some light bruising and hand marks from the scuffle.” People’s
exhibit Nos. 8 and 9 depicted a scratch behind the victim’s ear caused when “[defendant] put his
hands around [the victim’s] neck.” The victim believed the scratches were “behind [her] right
ear.” In addition to the photographed injuries, the victim testified that one of her acrylic nails
“broke off” and that this “[did not] feel great.” The victim testified that, in addition to the injuries,
she also felt “[h]eartbroken, shame, humiliation, scared, fear, frantic, upset.”
¶ 10 Aurora police officer Jonathan Flores testified that, on December 3, 2021, at about 7:30
p.m., the victim made an in-person report of domestic violence at the Aurora police station. Flores
interviewed her. The victim advised Flores of her injuries, and Flores observed a bruise on the
victim’s chest, a scratch behind the victim’s ear, and “discoloration on her skin, her hand maybe
from the coffee.” A female officer took photographs of the victim’s injuries. Flores identified
People’s exhibit Nos. 1 through 9 as photographs of the victim depicting “[t]he bruising,
discoloration with the bruising, and *** a laceration or scratch.”
¶ 11 On cross-examination, Flores testified that some of the photographs were taken by the
victim and some by a female police officer, but he could not say “which ones were which.” Flores
identified People’s exhibit No. 2 as a photograph of a bruise on the left side of the victim’s chest.
Flores never saw the right side of the victim’s chest. Flores identified People’s exhibit No. 9 as a
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2024 IL App (2d) 230262-Uphotograph of the victim’s left ear. Flores never saw the victim’s right ear. Flores testified that,
based on the photographs, he could not tell if there were any injuries to the victim’s hands. He
stated that the hands had “a skin tone difference” but he did not “know if it was from the coffee.”
¶ 12 Aurora police officer Antonio Piscopo testified that, on December 3, 2021, he and his
partner interviewed defendant as a suspect in a domestic battery. Defendant told the officers that,
at about 10:30 a.m. on December 2, 2021, he argued with the victim concerning their son.
Defendant stated that, during the argument, “he had grabbed a set of keys and had thrown it at [the
victim] and then two-hand pushed [the victim].” Defendant stated further that, “after the initial
push, *** [the victim] had backed away and fell down while she was holding some hot coffee and
that the coffee had [fallen] on top of her[ ].” Defendant advised the officers that he did not have
any injuries. Piscopo arrested defendant.
¶ 13 On cross-examination, Piscopo testified that he recalled defendant telling him that the keys
struck the victim when he threw them at her. Piscopo agreed that, had defendant told him that the
keys struck the victim, he would have included it in his police report. Piscopo could not recall
whether he included the information in his report. After refreshing his recollection with the report,
Piscopo testified that he did not put anything in the report about the keys hitting the victim.
¶ 14 At the close of the State’s evidence, defendant moved for a directed finding. The trial court
denied the motion.
¶ 15 Defendant testified that, while arguing with the victim about their son, he became
“frustrated and [he] threw [his] keys at the kitchen cabinet.” The keys hit the cabinets above the
countertop. He was about four feet away from the victim when he threw the keys. After he threw
the keys, he stood up and “charge[d]” the victim. The victim “backed into the dining room area.”
Defendant testified: “By the time I got to her—I didn’t walk well, and I kind of hitched and I did
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2024 IL App (2d) 230262-Umake contact with her, but I didn’t push or shove her. She tripped—while she was retreating, she
tripped over her makeup cases.” He further explained: “I couldn’t stop myself in time. I did make
contact with her.” Defendant testified that he had had hip replacement surgery and was having
some issues because of it. He agreed that he “put both [of his] hands up with [his] palms up” and
made contact with the victim. He saw the victim trip over the makeup cases and fall. He sat back
down. He was “upset that she tripped” and he “felt bad.”
¶ 16 After the defendant rested, the State recalled Piscopo. Piscopo testified that, when they
spoke, defendant did not mention any medical condition. Piscopo also did not notice anything
unusual about how defendant walked. Defendant did not mention anything about kitchen cabinets;
defendant told him that the keys struck the victim. Defendant described “a two-hand pushing
motion[ ] but didn’t demonstrate it ***.” Defendant did not mention makeup cases. On cross-
examination, Piscopo agreed that defendant did not say that “he pushed [the victim] down.”
Rather, defendant told him that the victim “backed up and fell down.”
¶ 17 The trial court found defendant guilty on count II (insulting or provoking) and not guilty
on count I (bodily harm). Before issuing its ruling, the trial court noted that the complaint
contained “several [‘]ands[’] in each count for bodily harm as well as physical contact” and that it
was “almost written in paragraph form of the several things that the State alleges that the defendant
did.” After finding that the State proved the domestic relationship beyond a reasonable doubt, the
court then addressed the “two incidents”—“keys to the chest” and “the push.”
¶ 18 The trial court first considered the evidence related to the “keys to the chest” incident. The
court specifically noted that, although Piscopo mentioned in his police report that defendant said
he threw the keys at the victim, Piscopo did not mention that defendant said the keys hit the victim.
The court found incredible Piscopo’s testimony that he independently recalled that defendant told
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2024 IL App (2d) 230262-Uhim that the keys struck the victim. The court also noted that the photographic evidence
contradicted the victim’s testimony. (Although the court did not specify the nature of the
contradiction, we note that the victim testified that the keys struck her right chest but that the
photographs showed bruising to her left chest. In addition, the victim testified that she had a
scratch under her right ear whereas the photograph depicted her left ear.)
¶ 19 The trial court next considered the evidence related to “the push.” The court noted the
victim’s testimony that defendant charged at her and put his two hands on her neck and chest area
and that she fell backward. The court noted that the victim felt scared. The court found that the
victim would not have fallen if defendant had not pushed or charged at her. The court also noted
defendant’s testimony that he was angry and placed his hands on the victim’s chest. The court
further noted that, although defendant testified that it was an accident, he never said that to the
police. The court also noted defendant’s acknowledgment “about messing up and doing wrong.”
¶ 20 The trial court concluded:
“I think it gets a little tricky just on the way the complaint’s written, but as it relates to
bodily harm, I’m going to find the defendant not guilty, but as it relates to insulting or
provoking contact, I’m going to find him guilty, based on the push.”
¶ 21 The case was continued for posttrial motions and a sentencing hearing.
¶ 22 On July 10, 2023, defense counsel presented the trial court with a posttrial motion that he
mistakenly believed had been filed electronically. The State asked that the motion be stricken as
untimely. The trial court denied the State’s request and allowed defendant to file the motion
instanter. 1 When the court invited argument on the motion, defense counsel argued that the
1
The posttrial motion is not included in the record.
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2024 IL App (2d) 230262-Ucomplaint alleged “that several acts were committed including the throwing of keys at the alleged
victim in this case and striking her which was insulting and provoking and then doing some other
acts.” According to counsel, because the State failed to prove that defendant committed all the
alleged acts, defendant could not be found guilty.
¶ 23 The trial court denied the motion:
“I do recall the testimony and evidence that was presented at the bench trial. I did find the
complaining witness credible as it relates to the testimony about being pushed. I think that
what lended to the credibility was when the defendant testified and ultimately and not with
those specific words but also indicated that she—or that the defendant did, in fact, push the
complaining witness, I don’t think that they are inconsistent with each other despite the
other rulings that I made, so at this time I am going to deny the motion for a new trial.”
¶ 24 The trial court sentenced defendant to 12 months of conditional discharge. This timely
appeal followed.
¶ 25 II. ANALYSIS
¶ 26 Defendant contends that the evidence at trial was insufficient to support his domestic
battery conviction because the complaint alleged that defendant committed domestic battery by
committing two acts—throwing keys at the victim and pushing the victim—but the State proved
only one act. According to defendant, “all the [alleged] acts are material elements of the offense”
and that, without proof of both acts, he cannot be found guilty.2
2
Defendant does not contend that the State failed to prove beyond a reasonable doubt any
of the required elements of domestic battery. He argues only that, because the State did not prove
both charged acts, he cannot be found guilty of domestic battery. Accordingly, we do not consider
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2024 IL App (2d) 230262-U¶ 27 “[A] defendant has a fundamental right to be informed of the nature and cause of criminal
accusations made against him.” People v. Espinoza, 2015 IL 118218, ¶ 15; 725 ILCS 5/111-3(a)
(West 2020). Per section 111-3(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/111-
3(a) (West 2020)), the written charging instrument must state (1) “the name of the offense,”
(2) “the statutory provision alleged to have been violated,” (3) “the nature and elements of the
offense,” (4) “the date and county of the offense,” and (5) “the name of the accused.” See People
v. Collins, 214 Ill. 2d 206, 219 (2005).
¶ 28 It is well-settled that “[t]he State ‘must prove the essential elements of the charging
instrument.’ ” People v. Lattimore, 2011 IL App (1st) 093238, ¶ 67 (quoting People v. Rothermel,
88 Ill. 2d 541, 544 (1982)). “For a variance between the charging instrument and the proof at trial
to be fatal, the difference ‘must be material and be of such character as may mislead the defendant
in making his or her defense, or expose the defendant to double jeopardy.’ ” Id. (quoting People
v. Maggette, 195 Ill. 2d 336, 351 (2001)).
¶ 29 Contrary to defendant’s framing of the issue, there is nothing improper per se about a
charging instrument alleging more than one act. Charging instruments routinely charge multiple
acts and avoid confusion by assigning different acts to different counts. When properly framed,
the issue here is that the specific count of which defendant was convicted alleged more than one
act yet the trial court found that the State proved only one of those acts.
¶ 30 “[I]mmaterial matters, or matters which may be omitted from an indictment without
rendering it insufficient or doing damage to the material averments, may be regarded as
whether the evidence was otherwise sufficient to prove defendant guilty beyond a reasonable doubt
of domestic battery based on the push.
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2024 IL App (2d) 230262-Usurplusage.” (Internal quotations omitted.) Id. “Where an indictment charges all essential
elements of an offense, other matters unnecessarily added may be regarded as surplusage.”
Collins, 214 Ill. 2d at 219; see also People v. Simpkins, 48 Ill. 2d 106, 110-11 (1971) (where the
defendants were charged with mob action in that they disturbed the peace “by firing a revolver,”
but the evidence showed that they disturbed the peace differently, the phrase “by firing a revolver”
was surplusage).
¶ 31 In addition, where an offense can be committed by numerous acts, “ ‘a variance between
the act named in the indictment and the act proved will not be fatal.’ ” Lattimore, 2011 IL App
(1st) 093238, ¶ 69 (quoting People v. Burdine, 362 Ill. App. 3d 19, 24 (2005), and finding no fatal
variance where the indictment charging aggravated battery alleged that the defendant caused
bodily harm by striking the victim but the evidence established instead that the defendant caused
the victim to be struck; the variance related only to the manner in which the defendant caused
bodily harm); see Simpkins, 48 Ill. 2d at 110-11 (no fatal variance where the defendants were
charged with disturbing the peace by firing a revolver but were found guilty based on different
acts); People v. Taylor, 84 Ill. App. 3d 467, 470 (1980) (no fatal variance where the defendant was
charged with obstructing a peace officer by pushing or shoving him but the evidence established
only that she pulled the officer’s hair).
¶ 32 Section 12-3.2(a)(2) of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/12-
3.2(a)(2) (West 2020)) sets forth the necessary elements of domestic battery as follows:
“(a) A person commits domestic battery if he or she knowingly without legal
justification by any means:
***
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2024 IL App (2d) 230262-U(2) Makes physical contact of an insulting or provoking nature with any
family or household member.”
Count II of the complaint alleged that defendant
“knowingly made physical contact of an insulting nature with [the victim], a family
member of said defendant, in that said defendant threw keys at [the victim], which hit her
chest and caused bruising. Said defendant then pushed [the victim] onto the ground with
his hand causing a scratch behind her left ear and a broken fingernail.”
¶ 33 Here, count II contained all essential elements of the offense of domestic battery.
Nevertheless, defendant contends that, because the State alleged that defendant both “threw keys”
and “pushed” the victim, his conviction cannot stand without proof of both acts. We disagree.
Although count II presented the incident as a progression of two acts, they were separable, and
each would have been sufficient, standing alone, to support a domestic battery conviction under
section 12-3.2(a)(2) of the Criminal Code. Defendant does not argue otherwise. Thus, removing
the allegation that defendant threw keys at the victim before he pushed her would not render count
II insufficient, as all essential elements would undoubtedly remain. Accordingly, the language
alleging the key throwing may be regarded as surplusage.
¶ 34 Moreover, we note that defendant is taking issue with the manner in which he “[m]a[de]
physical contact of an insulting or provoking nature.” Id. He seems to suggest that the “manner”
included both the throwing of the keys and the push. However, as noted above, a variance related
to the particular manner by which defendant committed domestic battery is not fatal. See Simpkins,
48 Ill. 2d at 111; Taylor, 84 Ill. App. 3d at 470; Lattimore, 2011 IL App (1st) 093238, ¶ 70.
¶ 35 Defendant asserts generally that a variance is “error” if it “misleads a [d]efendant in the
making of his defense” or “hinders the [d]efendant in the intelligent presentation of his case.” He
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2024 IL App (2d) 230262-Uclaims that he relied on the “[the State’s] wording [of the complaint] that all the acts create the
insulting and provoking nature of the battery,” but he does not explain how this reliance affected
his defense. Indeed, counsel defended against each factual allegation independently, arguing in
closing both that defendant did not hit the victim with the keys and that defendant’s act of pushing
the victim was “not knowing because he’s got the hitch.” Thus, there is no indication that any
additional language in the complaint caused defendant to proceed with a different defense or to
omit any evidence bearing on his innocence.
¶ 36 We note too that defendant does not argue that any variance exposed him to double
jeopardy. Indeed, any such argument would be meritless. As noted, the indictment (1) named the
offense, (2) cited the statutory provision allegedly violated, (3) set forth the nature and elements
of the offense, (4) noted the date and county of the offense, and (5) listed defendant’s name. See
725 ILCS 5/111-3(a) (West 2020). Thus, if the State attempted a future prosecution based on the
incident, defendant could show from the trial court record that there was a prior prosecution based
on the same facts. See Lattimore, 2011 IL App (1st) 093238, ¶ 71.
¶ 37 III. CONCLUSION
¶ 38 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 39 Affirmed.
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