Opinion
1-19-1619
09-30-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONELL TROTTER, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 17 CR 7801 Honorable Dennis J. Porter, Judge presiding.
JUSTICE HOFFMAN delivered the judgment of the court. Justices Cunningham and Connors concurred in the judgment.
ORDER
HOFFMAN, JUSTICE
¶ 1 Held: We affirm defendant's conviction for aggravated battery of a peace officer over his contention that the trial court relied on facts outside the record in finding him guilty.
¶ 2 Following a bench trial, defendant Donell Trotter was convicted of aggravated battery of a peace officer (720 ILCS 5/12-3.05(d)(4) (West 2016)) and sentenced as a Class X offender to six years' imprisonment. On appeal, he contends the trial court denied his due process rights where it based its guilty finding on personal knowledge and facts outside the record. For the following reasons, we affirm.
¶ 3 Defendant was charged with three counts of aggravated battery, which alleged he knowingly caused bodily harm to police officer Robert Cummings by biting his finger, knowing he was an officer performing his official duties (count I), to prevent the performance of Cummings' official duties (count II), and in retaliation for performing his official duties (count III).
¶ 4 At trial, Officer Cummings testified that on May 14, 2017, around 2:10 a.m., he was on duty and responded to a domestic disturbance at Parkway Gardens, an apartment building on the 6400 block of South King Avenue. Cummings and his partner Officer James were assisting first responding officers King and Ruiz. All of the officers present were in a police uniform and had arrived in marked cars. At the location, Cummings encountered defendant inside his girlfriend's apartment. Defendant was intoxicated and "pretty belligerent." Defendant's girlfriend was on the lease, so the officers asked defendant to leave and told him if he returned, he would go to jail. Defendant complied, and the officers left the scene.
¶ 5 Less than 20 minutes later, Cummings received a second call that was "pretty much the same as the first call, that [defendant] had returned" and was banging on his girlfriend's door. The officers went back to the apartment and learned that Parkway Gardens security cited defendant, so they arrested him for trespassing. At that point, defendant was "real hostile" and appeared "more angry than before."
¶ 6 Once at the police station, Cummings took defendant to a processing room, where he asked defendant to remove his shoelaces and empty his pockets. Defendant did not comply with the request to take his shoelaces off or remove the chain he was wearing. Defendant became angry and "cursed [the officers] out." Officer King asked defendant to place his hands against the wall. When defendant refused, King made him put his hands on the wall and then started taking defendant's shoelaces off.
¶ 7 Defendant eventually calmed down and sat down but still refused to take off his chain. At one point, defendant ripped the chain off himself and placed it in his mouth. The officers feared he would choke on it, so Cummings grabbed the part of the chain that was hanging out of defendant's mouth. Defendant then reached forward and bit Cumming's right index finger for two or three seconds. Cummings felt pain and noticed the skin had been broken and was bleeding. He went to the hospital for treatment.
¶ 8 On cross-examination, Cummings testified defendant's right hand was handcuffed to the bench during processing. King was also present and told Cummings not to let defendant swallow the chain. Cummings was wearing fabric gloves when defendant bit him. He noticed he was bleeding after he removed his glove approximately 10 seconds following the bite. Cummings acknowledged there was no video of the incident or photographs of his injured finger.
¶ 9 Detective Jason McCrillis testified he was assigned to investigate the incident. He spoke with defendant on May 14, 2017. After defendant waived his Miranda rights, he told McCrillis that he had been stressed out and was drinking and smoking marijuana the night before. He stated that he bit Cummings but did not think he bit him "that hard." Defendant additionally said he was "sorry for what happened between him and the officer."
¶ 10 On cross-examination, McCrillis testified he "took GPRs" while speaking with defendant and then typed up a report, which defendant did not sign. He did not give defendant an opportunity to write out his own statement.
¶ 11 Defense counsel introduced Cummings' medical records from May 14, 2017. The records showed Cummings complained of a "human bite to R index finger." He was administered an "amoxicillin clavulanate (AUGMENTIN) tablet" and a "diphtheria, tetanus, acellular pertussis (BOOSTRIX) injection." The discharge instructions stated, "Finish the augmentin even if you are feeling better[.] It is very important to prevent infection[.] Return to the ER for severe pain, fever, chills, rash, or any other new or concerning symptoms[.] Follow up with your doctor or in the ER in 5 days for a wound check." The records further note: "Reports some pain to distal finger, no numbness, weakness, or redness. Unsure last tetanus" and "[s]uperficial, no signs of damage to deep structures or exposed bone. XR, irrigation, tetanus, pt does not want pain meds at this time. Augmentin, followup, careful return precautions." Cummings' "pain upon discharge was assessed with the Wong-Baker pain scale: 4 (hurts little more)."
¶ 12 During closing arguments, defense counsel argued the evidence was insufficient to prove defendant guilty beyond a reasonable doubt. Counsel argued Cummings had been wearing gloves and did not suffer a fracture, the medical records showed his injury was superficial, and there was no photographic evidence to show there was an injury.
¶ 13 The court found defendant guilty of all three counts of aggravated battery of a peace officer. In so finding, it stated, "The medical records indicate that the officer was prescribed Augmentin, which is an antibiotic, so that would indicate[] that the officer, it would corroborate the officer's testimony that the skin was broken. There was a break in the skin." The court merged three counts.
¶ 14 Defendant filed a posttrial motion to reconsider, arguing, in relevant part, that the court's finding was against the weight of the evidence because the court assumed "the drug Augmentin was prescribed because the skin was broken," despite there being no language in the records that the skin was broken or testimony showing Cummings actually took the medication. He further argued the court was "not a medical doctor" and it was therefore improper to assume that Cummings took the prescribed medication. Defendant additionally argued, "The defendant was denied due process of law."
¶ 15 At the hearing on the motion, defense counsel argued the State failed to corroborate Cummings' testimony that he received an injury. Counsel noted the court "indicate[d] in its ruling that the medical records stated that the drug Augmentin was prescribed to Officer Cummings," but Cummings "never testified that he took that medicine" and the records did not show why Augmentin was prescribed or that there was any broken skin, bleeding, or fractures. The court denied defendant's motion and sentenced him as a Class X offender based on his background to six years' imprisonment on count I, merging the other counts.
¶ 16 On appeal, defendant argues he was deprived his right to due process because the trial court relied on facts outside the record in finding him guilty. Defendant bases his argument on the trial court's statement that the medical records showed Officer Cummings received "an antibiotic," which corroborated his testimony that his skin was broken. Because the medical records show Cummings received "amoxicillin clavulanate (AUGMENTIN)" and did not state that medication was an antibiotic, defendant argues that finding was based on evidence not presented at trial. Defendant contends the court relied exclusively on these facts outside the record to corroborate Cummings' testimony.
¶ 17 As an initial matter, the parties disagree about whether this issue is properly preserved. Generally, to preserve an issue for review, defendant must both object at trial and in a written posttrial motion. People v. Enoch, 122 Ill.2d 176, 186 (1988). Defendant claims he preserved this issue by filing a posttrial motion which asserted the court's finding was against the manifest weight of the evidence, and he was denied due process of law. He maintains he did not have to assert a simultaneous objection in this instance because defense counsel had just argued the evidence was insufficient in her closing statements and his objection would have fallen on "deaf ears." The State responds defendant forfeited the issue by failing to raise it during trial or in his posttrial motion.
¶ 18 The record shows defendant did not include this argument in his motion to reconsider and therefore did not properly preserve this issue for appeal. Enoch, 122 Ill.2d at 186. Defendant's motion to reconsider alleged a due process violation without any further analysis. He also argued the finding was against the weight of the evidence because there was no evidence Cummings took the Augmentin and the medical records did not state the skin was broken. At no point either in the motion or at argument on the motion did defendant allege the court relied on facts outside the record to reach its conclusion. His argument was more akin to a sufficiency of the evidence argument, challenging the trial court's inferences from the evidence before it. We therefore find defendant forfeited this argument.
¶ 19 In his reply brief, however, defendant asks this court to review his claim under the plain error doctrine. The plain-error doctrine permits a reviewing court to consider unpreserved errors when" '(1) the evidence in a criminal case is closely balanced or (2) where the error is so fundamental and of such magnitude that the accused was denied a right to a fair trial.'" People v. Harvey, 211 Ill.2d 368, 387 (2004) (quoting People v. Byron, 164 Ill.2d 279, 293 (1995)). Prior to addressing plain error, however, we must first determine whether any error occurred. People v. Herron, 215 Ill.2d 167, 187 (2005). We therefore turn to the merits of his claim.
¶ 20 The State must prove each element of an offense beyond a reasonable doubt. People v. Siguenza-Brito, 235 Ill.2d 213, 224 (2009). Due process does not permit the trial judge to go outside the record, except for matters of which a court may take judicial notice. People v. Yarbrough, 93 Ill.2d 421, 429 (1982). 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." People v. Tye, 141 Ill.2d 1, 26 (1990). Not every circumstance in which extraneous or unauthorized information reaches the court requires reversal or a new trial. People v. Banks, 102 Ill.App.3d 877, 882 (1981). Rather," [s]uch a disposition rests upon whether or not the defendant may have been prejudiced." Id. A review of the record in this case indicates that the trial judge relied on the evidence presented at trial for judgment and, even assuming arguendo it did not, defendant cannot establish he was prejudiced.
¶ 21 Defendant's contention that the trial court exclusively based its finding that Cummings testimony was corroborated by knowledge outside the record is unavailing. Here, although the court noted the medical evidence showing Cummings received an antibiotic corroborated his testimony, it did not state that was the sole basis for its conclusion. "The trier of fact in a bench trial is not required to mention everything-or, for that matter anything-that contributed to its verdict." People v. Curtis, 296 Ill.App.3d 991, 1000 (1998).
¶ 22 Further, while the medical records do not state that amoxicillin is an antibiotic, they showed Cummings suffered from a "human bite," and he was prescribed medication with the instruction to continue to take it even if he was feeling better to prevent infection. He was also given a tetanus shot and directed to consult a medical professional in five days for a "wound check." Regardless of whether the medication prescribed was an antibiotic, these records support a reasonable inference that, as Cummings testified, his skin was broken, as the trial court found. See People v. Siguenza-Brito, 235 Ill.2d 213, 224 (2009) (It is within the province of the trier of fact "to determine the credibility of witnesses, to weigh evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the evidence.").
¶ 23 Moreover, even assuming the trial court relied on facts outside the record, we cannot say that its characterization of the medication as an antibiotic prejudiced defendant such that a new trial is warranted as the evidence amply supported his conviction. See Banks, 102 Ill.App.3d at 882.
¶ 24 When reviewing the sufficiency of the evidence, we inquire" '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 the crime beyond a reasonable doubt.'" (Emphasis omitted.) People v. Davison, 233 Ill.2d 30, 43 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In so doing, we draw all reasonable inferences in favor of the State (Davison, 233 Ill.2d at 43), and we do not retry the defendant (People v. Collins, 106 Ill.2d 237, 261 (1985)). The State must prove each element of an offense beyond a reasonable doubt. Siguenza-Brito, 235 Ill.2d at 224. We will not overturn a criminal conviction "unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt." People v. Givens, 237 Ill.2d 311, 334 (2010).
¶ 25 As charged here, a person commits aggravated battery "when, in committing a battery, other than by discharge of a firearm, he or she knows the individual battered to be *** [a] peace officer *** performing his or her official duties." 720 ILCS 5/12-3.05(d)(4)(i) (West 2016). "A person commits battery if he or she knowingly without legal justification by any means causes bodily harm to an individual." 720 ILCS 5/12-3(a) (West 2016)." 'Bodily harm' has been defined as physical pain or damage to the body, including lacerations, bruises, or abrasions, whether temporary or permanent." People v. Thigpen, 2017 IL App (1st) 153151, ¶ 29 (citing People v. Mandarino, 2013 IL App (1st) 111772, ¶ 63).
¶ 26 The evidence presented proved defendant knew Cummings was a police officer performing his official duties and that he knowingly bit Cummings, causing bodily harm by breaking the skin on his finger. The evidence showed that while Officer Cummings was processing defendant's arrest, defendant placed a chain in his mouth. Cummings pulled the chain to ensure defendant did not choke on it, and defendant leaned forward and bit Cummings' finger for two or three seconds, breaking the skin and causing his finger to bleed. Cummings experienced pain as a result of the bite and received treatment at the hospital. Detective McCrillis testified he interviewed defendant following the incident and defendant admitted to biting Cummings, although he stated he did not think he bit him hard.
¶ 27 Cummings' medical documentation showed he complained of a "human bite" and was prescribed Augmentin and instructed to continue taking it to prevent infection. The records also specifically stated he received a "diphtheria, tetanus, acellular pertussis (boostrix) injection." This evidence, which demonstrates there was a concern for infection, together with Cummings' testimony that he was bleeding, supports an inference that his skin had been broken. See People v. Murphy, 2017 IL App (1st) 142092, ¶ 11 ("A trier of fact is not required to disregard the inferences that normally flow from the evidence or to seek out all possible explanations consistent with a defendant's innocence and elevate them to reasonable doubt.").
¶ 28 We note that, even without the medical evidence, Cummings' testimony alone was sufficient to establish the element of bodily harm. Cummings' testified that he felt pain and was bleeding. Pain alone is sufficient to demonstrate bodily harm (Thigpen, 2017 IL App (1st) 153151, ¶ 29), and it is well established that "[t]he testimony of a single witness, if it is positive and the witness credible, is sufficient to convict" (People v. Smith, 185 Ill.2d 532, 541 (1999)). Nothing in the record shows Cummings' testimony was not credible, and defendant's statement to Detective McCrillis shows that he admitted to biting Cummings, thereby corroborating Cummings' version of events. Thus, even without the medical records, the evidence showed Cummings suffered "physical pain or damage to the body" and was therefore sufficient to prove bodily harm. See Thigpen, 2017 IL App (1st) 153151, ¶ 29.
¶ 29 In sum, we find the trial court did not rely on facts outside the record and, even if there was error, defendant suffered no prejudice therefrom as the evidence was sufficient to sustain defendant's conviction even without the court's finding regarding Augmentin. Because there was no reversible error, defendant's plain error claim fails. People v. Williams, 193 Ill.2d 306, 349 (2000) (there can be no plain error absent reversible error).
¶ 30 Alternatively, defendant argues defense counsel was ineffective for introducing the medical evidence which supplied the basis for the court's ruling.
¶ 31 To demonstrate ineffective assistance of counsel, defendant must show that (1) his attorney's performance was deficient, and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to satisfy either prong of the Strickland'test precludes a finding of ineffective assistance of counsel. People v. Patterson, 192 Ill.2d 93, 107 (2000).
¶ 32 Here, defendant cannot demonstrate he was prejudiced by counsel's introduction of the medical evidence. As previously detailed, the evidence was sufficient to sustain defendant's conviction for aggravated battery to a police officer. Detective McCrillis's testimony showed defendant admitted to biting Officer Cummings. Cumming's testimony that he suffered pain, his skin was broken and bleeding, and he went to the hospital for treatment was sufficient to show the bodily harm element. Thus, even without the medical evidence, the testimonial evidence amply supported defendant's conviction and he therefore cannot establish a reasonable probability that the outcome of the proceedings would have been different had defense counsel not introduced the medical documents. Because defendant cannot establish prejudice, his claim for ineffective assistance of counsel must fail. See Strickland, 466 U.S. at 697 (where a defendant fails to satisfy the prejudice prong, a reviewing court need not determine whether counsel's performance was deficient).
¶ 33 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 34 Affirmed.