"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 (2005). We review de novo the sufficiency of the charging instrument.
"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.
"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 (2005).ΒΆ 34 The State need not plead evidentiary details.
However, β[w]hen a crime [such as aggravated battery] can be committed by several acts * * * a variance between the act named in the indictment and the act proved will not be fatal.β People v. Burdine, 362 Ill.App.3d 19, 24, 298 Ill.Dec. 250, 839 N.E.2d 573 (2005) (finding no variance where the proof at trial showed defendant committed aggravated battery when he β βbitβ β the victim but the indictment specified that defendant β βstruckβ β the victim); People v. Coleman, 49 Ill.2d 565, 571, 276 N.E.2d 721 (1971) (holding that the means or manner by which defendant committed murder was not an essential part of the indictment); Simpkins, 48 Ill.2d at 110β11, 268 N.E.2d 386 (holding the variance was not fatal where the complaint charged that defendants had β βdisturb[ed] the peace by firing a revolverβ β but the State proved they had disturbed the peace by β βparticipating in a gang fightβ β because the β βparticular means by which each defendant participated in the creation of the disturbance was not criticalβ β); Nathan, 282 Ill.App.3d at 611, 218 Ill.Dec. 164, 668 N.E.2d 648 (State's amendment to the indictment to βchange[ ] the manner in which defendant committedβ (emphasis omitted) aggravated battery βdid not alter any essential element of t
ΒΆ 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, ΒΆ 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). ΒΆ 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:
ΒΆ 60 The trial court found defendant was deserving of a natural term of imprisonment, even apart from the fact that it was mandated, based on the cold and calculated nature of his actions. See People v. Burdine, 362 Ill.App.3d 19, 26 (2005) (noting, we generally defer to the trial court's determination of a sentence). The factual bases of defendant's several violent crimes are not just "at odds" with his claim of impulsivity, they are quintessentially antithetical to it.
Moreover, there was no fatal variance because the State's burden was to prove beyond a reasonable doubt the essential elements of the offense and not the specific conduct alleged in the complaint. People v. Thomas, 137 Ill.2d 500, 522 (1990) (if the facts in question are not elements of the offense, any variance between the alleged facts and the evidence at trial is not fatal); People v. Burdine, 362 Ill.App.3d 19, 24, (2005) (a variance between the conduct named in the complaint and the act proved is not considered fatal). ΒΆ 20 The trier of fact determines whether the defendant's conduct placed the victim in reasonable apprehension of receiving an imminent battery.
It is assumed that for a bench trial, the trial judge will rely only on competent evidence in making a finding. People v. Burdine, 362 Ill.App.3d 19, 25 (2005) (citing People v. Kolzow, 301 Ill.App.3d 1, 8 (1998)). "This assumption will be overcome only if the record affirmatively demonstrates the contrary, as where it is established the court's finding rests on a private investigation of the evidence, or on other private knowledge about the facts in the case."
Therefore, we conclude, de novo, that Rule 701 is inapplicable. See People v. Burdine, 362 Ill. App. 3d 19, 29 (2005) (holding that the appellate court "review[s] questions concerning the applicability of supreme court rules de novo"). There was no clear or obvious violation of that rule.
It was not per se improper to consider those statements (Ward, 113 Ill. 2d at 528-30), and we afford the trial court a "strong presumption" that it "based its sentencing decision on proper legal reasoning." People v. Csaszar, 375 Ill. App. 3d 929, 950 (1st Dist. 2007); see also People v. Burdine, 362 Ill. App. 3d 19, 26 (1st Dist. 2005) (defendant's burden to overcome presumption). To be entitled to relief, defendant must therefore show that it would have been unreasonable for the trial court to take his statements at the sentencing hearing as evidence of his mendacity and diminished prospects for rehabilitation.