Opinion
No. 1-12-0486
2013-09-27
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEWIS BALL, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 10 CR 2166
Honorable
Stanley Sacks,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Lampkin and Reyes concurred in the judgment.
ORDER
¶ 1 Held: Evidence was insufficient to prove aggravated battery where defendant drove his car onto a sidewalk and parkway in the direction of a police officer standing on the parkway but the car did not touch the officer. ¶ 2 Following a bench trial, defendant Lewis Ball was convicted of aggravated battery, possession of cannabis (more than 30, but not more than 500 grams) with intent to deliver, and aggravated fleeing or attempting to elude a police officer. The trial court imposed concurrent prison terms of eight years, five years, and three years, respectively. On appeal, defendant challenges only his aggravated battery conviction and asserts that the State did not prove him guilty of this charge beyond a reasonable doubt. For the reasons stated below, we vacate the aggravated battery conviction only. ¶ 3 Defendant was charged by indictment with four counts of attempted first degree murder of a peace officer, four counts of aggravated battery involving a peace officer, one count of possession of cannabis with intent to deliver, and two counts of aggravated fleeing or attempt to elude a police officer, all allegedly committed on or about December 29, 2009. The attempt murder and aggravated battery charges stem from defendant's actions toward Chicago police officers Judith Cortes and Kevin Stapleton. ¶ 4 The trial court found defendant guilty on one of the aggravated battery counts (count 5), which named Officer Stapleton as the victim. Count 5 specifically alleged defendant "in committing a battery, intentionally or knowingly, without legal justification caused bodily harm to Kevin Stapleton, to wit: Lewis Ball drove a motor vehicle at Kevin Stapleton, knowing Kevin Stapleton to be a peace officer, to wit: a police officer of the City of Chicago Police Department, while Kevin Stapleton was engaged in the performance of his authorized duties as such an officer ***." We set forth the evidence at trial relating to this charge. ¶ 5 On December 29, 2009, Chicago police officers Judith Cortes and Kelly McBride were on patrol near 56th Street and Prairie Avenue. At approximately 7 or 7:30 p.m., they observed defendant, who was driving a Toyota Camry, fail to stop at a stop sign. They followed defendant and stopped him near 55th Street and Indiana Avenue. Defendant told Officer Cortes that the occupants of a van had pulled a handgun on him. The van was parked on Indiana Avenue, a short distance from where defendant was stopped. Officer Cortes stayed with defendant at his car while Officer McBride walked to the van. Other officers, including Officer Stapleton, arrived to assist Officer McBride at the van. At that time, Officer Stapleton was on duty and in uniform with his badge visible. While the officers were investigating the van, Officer Cortes alerted them that defendant had fled in his car. Officer Stapleton was 30 to 60 feet away from defendant's car when defendant's flight began. ¶ 6 Officer Stapleton drew his weapon and pursued defendant's car on foot. Officer Stapleton, on direct examination, testified as follows:
"[Officer Stapleton]: I immediately ran over to - - it was the [W]est side of Indiana
- - and I entered the park. It was a parkway between the sidewalk and the street.
[Assistant State's Attorney (ASA):] And did you stand in that parkway?
A. Yes, I was, yes.
Q. Now, normally would that be where the grass would be?
A. Yes.
Q. On this particular night in December, was there grass there?
A. No, there was not.
Q. What was there?
A. There was like snow.
Q. When you crossed over and stood in the parkway, where was [defendant's car]?
A. [Defendant's car] was now on the sidewalk on the [W]est side of Indiana.
Q. And you indicated that - - was it still traveling in a northbound fashion?
A. Yes, it was.
Q. But at this point it was traveling on the sidewalk?
A. Yes.
Q. Where were you in relation to the car at that point?
A. Approximately 20 feet to the north.
Q. And at that point did you make any verbal commands, or did you do anything?
A. Yes.
Q. What did you do?
A. I was giving verbal commands to stop and basically just saying, 'Stop the vehicle.'
Q. And was the person driving the vehicle - - did the vehicle stop?
A. No.
Q. Did the car continue northbound in your direction?
A. Yes.
Q. And as it traveled northbound, how fast was it going?
A. Approximately maybe 20 to 30 miles an hour. I can't be too sure.
Q. Did the car - - while the car was on the sidewalk, did it travel in a straight line?
A. No, it did not.
Q. What direction did it take once on the sidewalk?
A. Approximately 5 to about 10 feet from me, it was a vehicle swerved towards me, and then it slightly entered - - it was the parkway.
Q. You were standing on the parkway still?
A. Yes, I was.
Q. So, just to be clear, the car was on the sidewalk, but then it veered back into the parkway where you were standing?
A. Yes.
Q. Was it going towards exactly where you were standing?
A. Yes.
Q. When it veered into the parkway, how far away was the car from where you were standing?
A. I would say anywhere between 5 and 10 feet.
Q. At some point did the car stop in front of you?
A. No.
Q. What happened?
A. It swerved - - it passed directly in front of me and entered back onto the
sidewalk.
Q. And when it entered back onto the sidewalk, was it past you at that point?
A. No.
* * *
Q. When you were standing in the parkway and the car was coming towards you, what did you do?
A. I already had my pistol out for officer safety, and I was giving verbal commands to stop the vehicle, and, as he passed in front of me, I was attempting to actually maneuver out of the way.
Q. Why were you trying to get out of the way?
A. Because I was in fear of my life.
Q. Would he have hit you had you not moved?
[Defense Counsel]: Objection; leading.
THE COURT: No, yes or no. Overruled.
THE WITNESS: *** It is hard to say.
[ASA]: So, did you move out of the way?
A. I slightly moved out of the way.
[ASA]: When you moved out of the way, what happened?
A. As I was moving out of the way, I slipped on my left leg. It was almost as if I lost my footing temporarily, and then that is when I actually discharged my weapon.
[ASA]: Now, when you lose your footing, were you falling, or did you fall?
A. No, I did not fall.
[ASA]: Were you standing on snow or pavement?
A. I was standing on snow."
As a result of slipping in the snow when he moved to avoid defendant's car, Officer Stapleton sprained his ankle, received medical treatment, and was on crutches for three to four weeks. ¶ 7 Defendant was eventually apprehended. Defendant's car was struck by over 20 bullets during the chase. Defendant sustained multiple gunshot wounds. ¶ 8 Detective Robert Garza accompanied defendant in an ambulance to Stroger Hospital after his arrest. Defendant told Detective Garza that he fled the police because he was on parole and did not want to return to prison. ¶ 9 It was stipulated that Dr. Gregory Rosen, who treated Officer Stapleton, would testify that the officer complained of sharp pain. The officer's left ankle exhibited "tenderness," but he had full range of motion and no swelling. It was further stipulated that Dr. Neel Patel would testify that x-rays of Officer Stapleton's left ankle showed no fracture. ¶ 10 The parties also stipulated to testimony that an investigator measured the parkway where Officer Stapleton stood when defendant passed him. The width between the sidewalk and the curb was 18 feet. ¶ 11 In finding defendant guilty of aggravated battery at the close of evidence, the trial court concluded defendant's conduct caused Officer Stapleton's injury and that defendant was consciously aware that driving on a sidewalk toward Officer Stapleton might result in bodily injury to the officer. The trial court stated that defendant "didn't have to physically hit [Officer Stapleton] with the car" to be found guilty. ¶ 12 In his posttrial motion, defendant challenged the sufficiency of the evidence as to the aggravated battery conviction. He argued, in part, that the State did not prove him guilty of aggravated battery where there had been no contact with Officer Stapleton. The trial court denied the motion and sentenced defendant as stated above. This appeal timely followed. ¶ 13 On appeal, defendant contends that his actions did not amount to aggravated battery because (1) there was no evidence that defendant was consciously aware that his conduct was practically certain to cause Officer Stapleton's injury; and (2) there was never any physical contact between defendant and Officer Stapleton. ¶ 14 When a defendant challenges the sufficiency of the evidence to sustain his conviction, the relevant question on review is whether, after considering the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. People v. Beauchamp, 241 Ill. 2d 1, 8 (2011); People v. Collins, 106 Ill. 2d 237, 261 (1985). It is not this court's function to retry a defendant who challenges the sufficiency of the evidence. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). Rather, in a bench trial, the trial court remains responsible for determining the credibility of witnesses, the weight to be given to their testimony, and the reasonable inferences to be drawn from the evidence, and this court will not substitute its judgment for that of the trial court on these matters. Id. A conviction will only be overturned where the evidence is so improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of the defendant's guilt. Beauchamp, 241 Ill. 2d at 8. ¶ 15 The offense of aggravated battery includes battery of a police officer. 720 ILCS 5/12-4(b)(18) (West 2010). Battery is committed when a person "intentionally or knowingly without legal justification and by any means" either: (1) causes bodily harm to an individual; or (2) makes physical contact of an insulting or provoking nature with an individual. 720 ILCS 5/12-3(a) (West 2010). ¶ 16 A person acts intentionally if the "conscious objective or purpose is to accomplish that result or engage in that conduct." 720 ILCS 5/4-4 (West 2010). A person acts knowingly if he "is consciously aware that such result is practically certain to be caused by his conduct." 720 ILCS 5/4-5 (West 2010). It is not necessary for the State to prove that a defendant intended the specific consequence of his wrongful act, because a defendant is responsible for an unintended consequence of his wrongful act where it is "a natural and probable consequence" of that act. People v. Isunza, 396 Ill. App. 3d 127, 132 (2009). ¶ 17 Defendant argues that because there was no physical contact with Officer Stapleton, he cannot be found guilty of battery. The State accepts that there was no physical contact between defendant and Officer Stapleton or between defendant's car and Officer Stapleton. The State instead argues as follows:
"[I]t is not necessary under the battery statute for there to be physical contact for a defendant to be convicted of battery. A battery may be committed in one of two ways: '(1) by causing bodily harm; or (2) by making a physical contact of an insulting or provoking nature.' People v. McBrien, 144 Ill. App. 3d 489, 496 (1986). Therefore, it was proper for the State to prove that defendant committed battery by showing that he caused bodily harm, and the State was not required to prove that there was physical contact."¶ 18 Thus, defendant reads the battery statute as requiring the State to prove he made physical contact with Officer Stapleton in order to convict him of battery causing bodily harm. By contrast, the State contends the battery statute does not require it to prove defendant made physical contact with Officer Stapleton in order to convict him of battery causing bodily harm. The resolution of this issue requires us to interpret the battery statute. Issues of statutory construction are questions of law which we review de novo. People v. Lloyd, 2013 IL 113510, ¶ 25. ¶ 19 The rules of statutory construction require courts "to ascertain and give effect to the intent of the legislature." In re Detention of Stanbridge, 2012 IL 112337, ¶ 70. In doing so, we "construe the statute as a whole and afford the language its plain and ordinary meaning. [Citation.] We must also avoid rendering any part meaningless or superfluous, and consider words and phrases in light of other relevant provisions of the statute. [Citation.] In construing the statute, we may also consider the consequences of construing the language one way as opposed to another and, in doing so, we presume the legislature did not intend the statute to have absurd, inconvenient, or unjust consequences. [Citation.] The court may also properly consider the reason and necessity for the law, the evils sought to be remedied and the purpose to be achieved. [Citation.]." Id. The issue here requires us to examine the battery statute in the framework of the statutory provisions defining both assault and battery. ¶ 20 The battery statute states: "*** A person commits battery if he intentionally or knowingly without legal justification and by any means *** causes bodily harm to an individual or *** makes physical contact of an insulting or provoking nature with an individual." 720 ILCS 5/12-3(a)(1) (West 2010). ¶ 21 "The two prongs of the battery statute [the bodily harm prong and the insulting or provoking nature prong] are considered 'alternative elements of the offense.' " Jenkins v. Nelson, 157 F.3d 485, 497 (7th Cir. 1998) (quoting People v. Abrams, 48 Ill. 2d 446, 461 (1971)). ¶ 22 At common law, the offense of battery was defined to mean "the unlawful beating of another." Hunt v. People, 53 Ill. App. 111, 112 (1894) (citing 3 Blackstone's Com. 120). Further, under the common law, "the least touching of the person of another in anger was a battery." Id. ¶ 23 Prior versions of the battery statute also contained language defining the offense as "unlawful beating." Id. The statute was later changed and the "unlawful beating" language was replaced with the current language. The change in statutory language was intended to eliminate from the purview of the battery statute those cases involving touching of so slight a nature, there is no tangible harm, and the touching was neither insulting nor provoking. 720 ILCS Ann. 5/12-3, Committee Comments, at 48 (Smith-Hurd 2002). There is no evidence, however, that the legislature intended to eliminate touching or physical contact as an element of the bodily harm prong of the battery statute. Significantly, after the amendment, our supreme court defined battery as "the wilful touching of the person of another by the aggressor, or some substance put in motion by him." (Emphasis added.) People v. Grieco, 44 Ill. 2d 407, 411 (1970) (citing Black's Law Dictionary, 3rd. ed., p. 200). Also after the amendment, the appellate court defined battery as involving " 'the unlawful beating or use of force on a person without his consent.' " People v. McClendon, 197 Ill. App. 3d 472, 481 (1990) (quoting the Webster's Ninth New Collegiate Dictionary 135 (1986)). Thus, we conclude that by changing the statutory language, the legislature did not intend to wholly eliminate touching or physical contact as an element of battery under the bodily harm prong of the statute. ¶ 24 Our conclusion-that physical contact or touching is required for battery under both prongs of the battery statute-is supported by a consideration of the assault statute. The assault statute provides that one "commits an assault when, without lawful authority, he engages in conduct which places another in reasonable apprehension of receiving a battery." 720 ILCS 5/12-1(a) (West 2010). Our supreme court has stated that what elevates an act from assault to battery is "any touching or other form of physical contact with the victim." Abrams, 48 Ill. 2d at 459-60; People v. McEvoy. 33 Ill. App. 3d 409, 411 (1975). See also Grieco, 44 Ill. 2d at 411 (a battery "is the consummation of an assault"); 720 ILCS Ann. 5/12-1, Committee Comments, at 8 (Smith-Hurd 2002) ("It should be emphasized that an assault does not involve a touching. If touching occurs, by any means, it is a battery."). ¶ 25 The offense of battery, by definition and use, has historically required an element of touching or physical contact. We will not depart from this long-standing meaning of battery by construing the battery statute to eliminate physical contact or touching as an element of battery when there has been bodily harm. There is no clear legislative intent to stray from the settled definition of battery in criminal law. People v. Smith, 236 Ill. 2d 162, 167 (2010) ("[I]f a term has a settled legal meaning, the courts will normally infer that the legislature intended to incorporate the established meaning."). Moreover, the State's reading of the battery statute would result in absurd results if physical contact was required only as to the second prong of the battery stature relating to insulting or provoking conduct. ¶ 26 Because there was no evidence of physical contact between defendant and Officer Stapleton or between defendant's car and Officer Stapleton, the State failed to prove defendant guilty of aggravated battery beyond a reasonable doubt. ¶ 27 For the foregoing reasons, we vacate defendant's conviction for aggravated battery. We otherwise affirm the judgment of the circuit court. ¶ 28 Affirmed in part, vacated in part.