People v. Rodriguez

2021 IL App (1st) 171896-UNo. 1-17-1896
March 10, 2021
Third Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 16 CR 4769
)
JOSE RODRIGUEZ, ) Honorable
) Charles P. Burns,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE HOWSE delivered the judgment of the court.
Justices McBride and Burke concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for domestic battery is affirmed over his challenge to the
sufficiency of the evidence when the State proved beyond a reasonable doubt that
he knowingly made insulting or provoking contact with a family or household
member by grabbing his son’s mother while she walked him to daycare.
¶2 Following a bench trial, defendant Jose Rodriguez was found guilty of domestic battery
and sentenced to 2½ years’ imprisonment. Defendant argues that the State failed to prove his guilt
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beyond a reasonable doubt because his contact with the victim’s arm was not knowingly insulting
or provoking. We affirm.
¶3 Defendant was charged by information with one count of domestic battery (720 ILCS 5/12-
3.2(a)(2) (West 2016)) for making physical contact of an insulting or provoking nature with a
family or household member, Diana Garcia, with whom he has a child in common. The information
further alleged that defendant had been previously convicted of domestic battery.
¶4 Before trial, the State filed a motion to admit proof of other crimes comprising four prior
incidents between defendant and Garcia. Following a hearing, the court granted the motion as to
two of the incidents for purposes of showing propensity, lack of mistake, and motive. First, the
State alleged that, in 2009, defendant pled guilty to misdemeanor domestic battery following
allegations that he pulled Garcia’s hair and punched her in the mouth, lacerating her lip. Second,
defendant was charged with burglary and convicted of the lesser-included offense of misdemeanor
theft based on an incident on February 22, 2016, wherein defendant took a television, tablet, and
jewelry from Garcia’s home.
¶5 At trial, Lilly Miranda testified that she was working as a crossing guard at the corner of
18th Street and Paulina Street around 7:15 a.m. on March 9, 2016. The intersection is near a
daycare to which Garcia takes her son every day. Miranda saw Garcia stop at the intersection with
her son and a man, whom Miranda had seen one time before and identified in court as defendant.
Miranda was wearing earplugs and could not hear defendant say anything, but she saw defendant
as he “grabbed [Garcia] from the arm.” The State noted for the record that Miranda demonstrated
the man’s action by grabbing her left arm just above the elbow. When defendant grabbed Garcia,
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she “pulled away from him” and crossed the street. Defendant followed Garcia until she entered
the daycare. Miranda did not see defendant touch Garcia at any other time.
¶6 On cross-examination, Miranda stated that she saw defendant walking with Garcia and her
son for half of a block before stopping at the intersection, when he grabbed her left arm. Defendant
and Garcia conversed while they walked, but Miranda could not hear them. Miranda did not see
defendant kneel and kiss the boy after grabbing Garcia. Defendant did not stop Garcia from
crossing the street. Defendant followed Garcia but Miranda could not see whether defendant
entered the daycare. Miranda’s attention was on her duties as a crossing guard, but she “saw that
something was going on, and [she] knew that maybe [Garcia] was in trouble.” She did not feel the
need to call the police. Miranda had not viewed video of the incident.
¶7 Through a Spanish interpreter, Garcia testified that she had a five-year-old son with
defendant. Garcia’s son attended the daycare on Paulina. Just after 7 a.m. on March 9, 2016, Garcia
saw defendant when she and their son exited the bus to go to the daycare. Defendant approached
them and “started screaming at [her].” Garcia did not respond because she “just wanted to walk.”
As Garcia and her son walked down the street, defendant told her that he would take legal action
against her because she would not let him see their son, he was “getting into serious problems,”
and he had spoken to an attorney who would have Garcia deported. While Garcia waited to cross
the street at 18th and Paulina, defendant grabbed her arm. The State noted that Miranda
demonstrated the contact by grabbing her left arm above the elbow. Her “heart was beating very
fast” and “strong,” and she was scared. Garcia and her son crossed the street. Defendant followed
and continued “screaming” at her.
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¶8 Defendant stopped at the parking lot of a bank, screamed at Garcia to stop, and said that
she wanted to leave their son “without a father.” Garcia did not respond. Defendant said that he
would “show you that your nephews are going to be without a father,” and then made a phone call.
Garcia did not remember defendant touching her in the parking lot, only him screaming at her and
asking her to stop. Garcia entered the daycare and called the police.
¶9 Garcia further testified that on the night of February 22, 2016, she was at home with her
sister-in-law, nephews, sister, son, and mother. Defendant arrived without invitation from Garcia,
and Garcia’s mother videotaped their interaction with her cell phone. The same video was played
at defendant’s burglary trial, during which Garcia also testified, and Garcia stated that the video
accurately depicted the incident but that her mother was not videotaping the entire time defendant
was present. Defense counsel stipulated to the video’s foundation, and the State published it.
¶ 10 The video, which is in the record on appeal, depicts defendant in a kitchen with a white
container in his hand and a television and other, smaller objects near his feet. He is speaking on a
phone. 1 A woman appears to lightly push or place her hands on defendant, and he responds, “don’t
push me.” Defendant starts to speak louder and more emphatically. A second woman tells
defendant “don’t speak to my mother,” and repeatedly tells him to leave. Defendant says that he
needs “a bag.” He continues speaking louder and more emphatically into the phone while the
person videotaping gives him a white garbage bag. The second woman helps defendant fill the bag
with the items on the floor. Defendant picks up the television, and the second woman escorts him
1
Some of the dialogue in the video, including defendant’s conversation on the phone, is in Spanish
and was not translated when it was published to the trial court.
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No. 1-17-1896
out of the kitchen and down a stairway to the street. The door leading to the street at the bottom of
the stairway is damaged.
¶ 11 On cross-examination, Garcia stated that defendant was upset in the video because their
son was not wearing pajamas. Garcia admitted that, at some point following the birth of her and
defendant’s son, she was hospitalized for postpartum depression but could not remember for how
long. Garcia was unable to care for their son while she was hospitalized.
¶ 12 In February 2016, defendant won the lottery. When defense counsel asked Garcia if she
remembered defendant giving a vehicle to the mother of his three other children, Garcia stated that
defendant claimed he sold her the vehicle. Garcia did not remember defendant giving the woman
$5000 of his income tax refund. Garcia denied being upset with defendant for giving the vehicle
and money to the woman, ending their relationship for that reason, or stopping him from seeing
their son.
¶ 13 Garcia stated that on March 9, 2016, she had an order of protection against defendant and
he was upset because she would not let him see their son. Defendant told Garcia that if she did not
acquiesce, he would sue her, have her sent back to Mexico, and keep their son. Defendant also told
Garcia he had hired a father’s rights lawyer. When defendant grabbed Garcia’s arm, he said he
wanted to see their son and that he did not want anything to do with Garcia because she had cheated
on him.
¶ 14 Garcia testified she had seen a video of her walking towards the intersection. Garcia denied
that the video did not show defendant grabbing her. The parties stipulated to the video’s foundation
and defendant published it. The video is from a camera positioned above the sidewalk and pointed
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towards the intersection of 18th and Paulina. The video is included in the record on appeal and
does not have audio.
¶ 15 In the video, defendant backpedals in front of Garcia and their son while they walk away
from the camera. Defendant then walks alongside them, speaking animatedly and gesturing closely
at Garcia. Then, defendant steps in front of Garcia again, and sidesteps as she tries to go around
him, blocking her path. Garcia keeps walking, and defendant steps towards her so she is briefly
backed up against a storefront before he lets her continue, and walks beside her gesturing again.
He again briefly cuts in front of her as they reach an intersection, and appears to reach out and
grab Garcia as they pause momentarily at the intersection, although another person is briefly
between them and the camera. Garcia and her son then cross the street, Garcia clearly hurrying as
her son nearly jogs to keep up with her. Defendant follows closely as they cross the street and
leave the camera’s sight. Garcia identified in court the moment defendant grabbed her.
¶ 16 Garcia further testified that she did not complain to anyone as she walked down 18th
because “[a]ll [she] wanted to do was run and keep [her] son safe” while defendant blocked her
path. Garcia did not tell Miranda to call the police because she was scared. Garcia stated that she
“was waiting for [Miranda] to help me, the way my face looked. And at the same time, I was
embarrassed that [defendant] was screaming at me and everybody was watching.” Garcia asked
the daycare to call the police.
¶ 17 The State introduced a certified copy of defendant’s 2009 misdemeanor conviction for
domestic battery.2
2
The State did not present evidence of the facts underlying the conviction that it had alleged in its
motion to admit proof of other crimes and the pretrial hearing thereon, but the parties and the court agreed
that it was only admissible as proof of the prior conviction alleged in the charging instrument.
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No. 1-17-1896
¶ 18 Defendant moved for a directed finding, arguing the video showed that the contact between
himself and Garcia was incidental. The court denied the motion.
¶ 19 Defendant testified that his son with Garcia was born in 2011. Defendant was his sole
caretaker while Garcia suffered from postpartum depression for eight or nine months. Defendant
also has three children with Leticia Gonzalez. Defendant won $13,000 in the lottery in February
2016, and gave $5000 to Gonzalez for their children. He also gave her a 2007 Jeep Compass truck.
Defendant told Garcia what he gave Gonzalez, and they broke up around February 22, 2016,
because Garcia no longer wanted to talk to defendant. Garcia would not let defendant see their son.
Defendant had his sister text Garcia, but Garcia did not respond.
¶ 20 Defendant admitted that, on March 9, 2016, he approached Garcia on 18th Street. He stated
that the video accurately depicted their interaction, but denied grabbing her arm or screaming at
her. Defendant approached Garcia “to beg her to let [him] have [their son] on the weekends.”
Defendant wanted to take their son to church with him. Defendant denied threatening Garcia that
his lawyer would have her deported, but told her that he had contacted “father rights” and wanted
to see their son. On cross-examination, defendant stated he was not aware that Garcia had obtained
an order of protection against him on February 23, 2016.
¶ 21 Following arguments, the trial court noted that Miranda “clearly” saw defendant grab
Garcia and the video shows defendant aggressively approaching Garcia, “almost circling her” and
gesturing. Thus, they did not appear to have a “civil conversation.” The court found further that
the video shows defendant pulling on Garcia’s arm right before or at the time she started to cross
the street, then aggressively following her across the street. While the video lacks audio, the court
noted that defendant appeared to be “highly agitated.” The court also noted that the video of the
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February 22 incident again shows defendant “very highly agitated” and “screaming,” so that the
March 9 incident reflected a pattern of behavior by defendant towards Garcia. The court found that
the videos elevated the case from a “he said/she said” scenario and made it “uncontestedly clear
that this defendant is always in a highly agitated manner when he confronts this victim.” Because
of defendant’s “pattern of aggressive and demeaning behavior towards [Garcia],” the court
concluded that the contact was insulting or provoking even though Garcia was not injured.
Accordingly, the court entered a finding of guilt.
¶ 22 Defendant filed a motion for a new trial or arrest of judgment, arguing in relevant part that
the State failed to prove his guilt beyond a reasonable doubt. The court denied defendant’s motion,
and following a hearing, sentenced him to 2½ years’ imprisonment.
¶ 23 Defendant appeals, arguing that the State failed to prove his guilt of domestic battery
beyond a reasonable doubt because his contact with Garcia’s arm was not knowingly insulting or
provoking.
¶ 24 As an initial matter, the parties dispute the standard of review. Defendant contends we
should review his claim de novo, while the State submits that we should review the sufficiency of
the evidence in the light most favorable to the prosecution to determine whether any rational trier
of fact could find the essential elements of the offense beyond a reasonable doubt. Defendant
correctly notes that questions of law are generally reviewed de novo (Monson v. City of Danville,
2018 IL 122486, ¶ 14), and challenges to the sufficiency of the evidence present a legal question
(Musacchio v. United States, ___ U.S. ___, ___, 136 S. Ct. 709, 715 (2016)). However, the “ ‘legal’
question” posed in such challenges is “ ‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
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the crime beyond a reasonable doubt.’ ” (Emphasis in original.) Id. (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)); see also People v. Hardman, 2017 IL 121453, ¶ 37 (same). Further,
defendant testified at trial that he did not grab Garcia, while Garcia and Miranda testified that he
did. He also argues on appeal that the State did not prove he acted knowingly, and “[k]nowledge
is a question of fact for the trier of fact to decide” (People v. Frazier, 2016 IL App (1st) 140911,
¶ 23). Accordingly, we will review defendant’s claim under the sufficiency of the evidence
standard. Hardman, 2017 IL 121453, ¶ 37.
¶ 25 Under that standard, reviewing courts draw all reasonable inferences from the evidence in
favor of the prosecution and will not retry the defendant. People v. Newton, 2018 IL 122958, ¶ 24.
We will not substitute our judgment for the trier of fact’s when considering the weight of the
evidence or the credibility of witnesses. Hardman, 2017 IL 121453, ¶ 37. It is not a reviewing
court’s duty to “search out all possible explanations consistent with innocence and raise them to a
level of reasonable doubt.” (Internal quotation marks omitted). Newton, 2018 IL 122958, ¶ 24. A
conviction will not be reversed “unless the evidence is so unreasonable, improbable, or
unsatisfactory as to create a reasonable doubt of the defendant’s guilt.” Id.¶ 26 A person commits domestic battery if, by any means and without legal justification, he
knowingly makes insulting or provoking physical contact with a family or household member. 720
ILCS 5/12-3.2(a)(2) (West 2016)). The offense is a Class 4 felony when, as here, a defendant has
a prior conviction for domestic battery. 720 ILCS 5/12-3.2(b) (West 2016)). “ ‘Family or
household members’ include *** persons who have or allegedly have a child in common.” 720
ILCS 5/12-0.1 (West Supp. 2015). Defendant does not contest that Garcia is a family or household
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member, but only whether the State proved that he knowingly made insulting or provoking
physical contact with her.
¶ 27 A person acts knowingly when he is “consciously aware” that his conduct is of the nature
prohibited by the statute defining the offense or “is practically certain” to cause the prohibited
result. 720 ILCS 5/4-5 (West 2016). Knowledge “may be proven by circumstantial evidence, and
inferred from the defendant’s action and the conduct surrounding it.” People v. Jackson, 2017 IL
App (1st) 142879, ¶ 24. Knowledge may also be proven by evidence that a defendant acted
intentionally, that is, with the conscious objective or purpose to accomplish the result described in
the statute defining the offense. 720 ILCS 5/4-4, 4-5 (West 2016).
¶ 28 Defendant submits that our courts have not explicitly defined the term “insulting or
provoking,” but “[t]he words ‘insulting’ and ‘provoking’ are commonly used words that are neither
vague nor difficult for the average person to define.” People v. Taher, 329 Ill. App. 3d 1007, 1016
(2002). When considering whether contact was insulting or provoking, a “trier of fact may take
into account the context in which a defendant’s contact occurred.” People v. Fultz, 2012 IL App
(2d) 101101, ¶ 49. “In other words, what may be an innocent touching in one instance, may be
interpreted quite differently in a different set of circumstances.” People v. d’Avis, 250 Ill. App. 3d
649, 651 (1993); see People v. DeRosario, 397 Ill. App. 3d 332, 332-34 (2009) (contact was
insulting or provoking when the defendant, who was stalking the victim after a failed relationship,
sat behind her and his knees touched her back and hip). The trier of fact can infer from a victim’s
reaction at the time of the contact that the victim was insulted or provoked even if the victim does
not testify as such. People v. Wrencher, 2011 IL App (4th) 080619, ¶ 55; see People v. Dunker,
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217 Ill. App. 3d 410, 415 (1991) (sufficient evidence that contact was insulting or provoking when
defendant poked victim’s chest and victim left crying and shocked).
¶ 29 At trial, Garcia testified that defendant approached her and her son as she exited a bus and
followed and screamed at her as she walked her son to daycare. Defendant repeated that he had
spoken to a lawyer who would have her deported. Defendant grabbed her arm at the intersection,
scaring her and causing her heart to beat fast and strong. Garcia asked the daycare to call the police.
Miranda corroborated that defendant grabbed Garcia’s arm and thought Garcia may have been in
trouble. The video of the incident tracks Garcia’s and Miranda’s testimony and shows defendant
repeatedly cutting in front of Garcia while she and her son attempt to walk towards the intersection.
After he grabs her at the intersection, the video shows Garcia crossing the street so quickly that
her son is nearly jogging to keep pace, while defendant follows them closely.
¶ 30 Less than a month before the incident giving rise to this case, defendant entered and took
items from Garcia’s home without permission. Following that incident, Garcia had sought and
procured a protective order against him.
¶ 31 Viewing the evidence in a light most favorable to the State, we conclude that a rational
trier of fact could find that defendant knowingly made insulting or provoking contact with Garcia.
While grabbing a person’s arm may be innocuous in other circumstances, defendant was convicted
of theft following an incident in Garcia’s home just weeks earlier, accosted her in public while she
was taking their son to daycare, and grabbed her arm after cutting her off and screaming at her. As
the trial court noted, the contact therefore fell into “a pattern of aggressive and demeaning behavior
towards the victim.” A factfinder could infer from Garcia’s reaction that the contact was insulting
or provoking: Garcia attempted to ignore defendant and keep walking, was scared to ask Miranda
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No. 1-17-1896
to call the police but hoped Miranda would help her, and, after defendant grabbed her arm, hurried
across the street. Although Garcia did not ask Miranda to call the police, she testified that she was
scared, embarrassed, and did not complain to anyone while walking toward the intersection
because “[a]ll [she] wanted to do was run and keep [her] son safe.” When she arrived at the daycare
she asked them to call the police. See Wrencher, 2011 IL App (4th) 080619, ¶ 55 (trier of fact may
infer from victim’s contemporaneous reaction that contact was insulting or provoking even if
victim does not testify she was insulted or provoked); Dunker, 217 Ill. App. 3d at 415 (defendant
made insulting or provoking contact by poking son’s teacher in chest when teacher left crying,
shocked, and feeling contact “was uncalled for”).
¶ 32 Further, we find defendant’s attempt to distinguish his case from DeRosario unpersuasive.
In DeRosario, the defendant sat behind the victim in a smoking lounge and his knees touched the
victim’s back and hip. DeRosario, 397 Ill. App. 3d at 332-33. The defendant had been following
the victim after a failed relationship, to the point the victim had filed a police report against him,
although it is unclear whether the defendant knew that. Id. There were many other places in the
lounge the defendant could have sat. Id. at 333. The victim “soon got up and called the police.” Id.The contact made the victim feel “scared, uncomfortable, trapped, and mad.” (Internal quotation
marks omitted.) Id. The trial court found that the defendant knowingly made insulting or provoking
contact, and we affirmed. Id. at 334.
¶ 33 To distinguish DeRosario, defendant argues that, by touching the victim’s hip and small of
her back, the defendant’s conduct implied sexual undertones absent in this case. However, the
DeRosario court made no mention of such undertones; it held that “the trial court reasonably
concluded that defendant intentionally sat where he was bound to come in contact with the victim
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and that he knew that this conduct would provoke her.” Id. Likewise, the physical contact here
also occurred in the context of a failing relationship. Garcia had sought an order of protection
against defendant based on his prior behavior towards her. While defendant denied knowing about
the protective order, he acknowledged that Garcia did not want contact with him and that, after she
began ignoring him, he requested his sister contact Garcia on his behalf and Garcia never
responded. The video shows him repeatedly stepping in front of her to block her path. He yelled
at her in public. Even though Miranda was wearing earplugs, she could tell “something was going
on” and believed Garcia may have been “in trouble.” Like the victim in DeRosario, the contact
prompted Garcia to call the police.
¶ 34 As in DeRosario, while the physical contact may have been innocuous in other
circumstances, we conclude that defendant made insulting or provoking contact with Garcia. Also
as in DeRosario, we conclude that a factfinder could infer from the above evidence that defendant
did so knowingly, given that he knew Garcia did not want to see him and, as the trial court noted,
had exhibited a pattern of aggressive behavior towards her—both in a prior instance and in this
public instance where he yelled at her and repeatedly tried to stop her from walking her son to
daycare before grabbing her arm. See Jackson, 2017 IL App (1st) 142879, ¶ 24 (trier of fact can
infer that defendant acted knowingly from act and conduct surrounding act); DeRosario, 397 Ill.
App. 3d at 334 (“defendant intentionally sat where he was bound to come in contact with the victim
and *** knew that this conduct would provoke her”).
¶ 35 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 36 Affirmed.
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