2025 IL App (1st) 230967-U No. 1-23-0967 Order filed March 11, 2025 Second 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. ) 22CR9506 ) KEVIN DENNY, ) Honorable ) Ursula Walowski, Defendant-Appellant. ) Judge, presiding.
JUSTICE McBRIDE delivered the judgment of the court. Presiding Justice Van Tine and Justice Ellis concurred in the judgment.
ORDER
¶1 Held: Affirming defendant’s conviction over his ineffective assistance of counsel claim where he has not shown he was prejudiced by counsel calling a witness whose testimony he alleges undermined his defense and strengthened the State’s case.
¶2 Following a bench trial, defendant Kevin Denny was convicted of domestic battery and
sentenced to two years in prison. On appeal, he argues that his trial counsel provided ineffective
assistance for calling a witness whose testimony contradicted defendant’s version of events,
undermined counsel’s defense, and bolstered the State’s case. For the following reasons, we affirm. No. 1-23-0967
¶3 Relevant here, defendant was charged by indictment with domestic battery for causing
bodily harm to Shalandra Withers, a family or household member with whom defendant had a
current or former dating relationship, by striking, kicking, and biting her. The indictment stated
that defendant had a prior domestic battery conviction.
¶4 Defendant’s pretrial answer to discovery did not name any witness that the defense
intended to call. However, on the day of trial, defense counsel stated that a defense witness whom
counsel had been unaware of had arrived with defendant. Counsel confirmed with the court that
he had interviewed the witness and would share with the State what the witness would say. The
court then proceeded with trial.
¶5 Withers testified that she and defendant had a “past dating relationship.” They dated from
2016 to 2022, and lived together “[o]ff and on” while they dated. On June 10 and 11, 2022, Withers
was “trying to end the relationship.”
¶6 Between 10:30 p.m. and 10:45 p.m. on June 10, 2022, Withers was at a friend’s house and
received a phone call from her 17-year-old daughter, Kyla Henderson. Withers immediately drove
home. She remained in her vehicle, and defendant exited her home. Defendant approached her
vehicle, and she asked him to drive himself home in her vehicle. Withers moved to the passenger
seat while he entered the driver’s seat. It was around 11 p.m. or 11:15 p.m. Defendant drove
Withers’s vehicle to a liquor store, then a gas station, after which they began arguing about him
not driving to his home.
¶7 Defendant curbed the vehicle near 13th Street and Central Park Avenue, in Chicago, with
the passenger’s side towards an open field. He exited the driver’s door. Withers began to open the
passenger door but, as defendant approached, she immediately tried to close the door and roll up
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the window. Withers and defendant “tussled” over the door. Defendant pulled it open and punched
Withers in the mouth. With her left hand, she pulled the keys from the vehicle’s ignition.
Defendant, leaning into the passenger compartment, bit her upper left arm, took the keys, and
threw them into the field. Withers and defendant “tussle[d] and wrestle[d],” and he pulled her out
of the vehicle and onto the ground. Defendant “proceeded to fight [her] and drag [her].” He
retrieved her cell phone from the floor of the vehicle, and Withers thought he threw it. She did not
have her glasses on. Withers was on the ground screaming when two men arrived in a black vehicle
and called defendant’s name. Defendant spoke with them, entered their vehicle, and they left.
¶8 Withers crawled through the field looking for her keys, cell phone, and glasses. She found
the keys and slowly drove home, arriving around 2 a.m. She “screamed” for her mother and
Henderson, and for a phone with which to call 911. Henderson photographed her injuries.
¶9 Police arrived, and Withers and Henderson went with officers to the field to look for
Withers’s glasses and cell phone. They found her glasses. They left, and Withers began tracking
her cell phone. Withers and Henderson went to a friend’s house until about 8 a.m. Then, Withers
tracked her phone as approaching her home. She and Henderson went there and parked in the back.
Defendant approached on foot, threw her phone through the passenger window of her vehicle, and
walked away.
¶ 10 Withers identified the photographs that Henderson took of her injuries, which she described
as depicting scrapes on her left leg and arm, a bruise on her lip from defendant’s punch, and a bite
mark on her left arm. The photographs are included in the record on appeal and are consistent with
her testimony.
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¶ 11 On cross-examination, Withers testified that, before she received Henderson’s phone call,
she drank a cup of vodka and pink lemonade but was not intoxicated. There was no one else near
13th and Central Park during the incident. Withers did not have defendant’s phone. Henderson did
not speak with defendant on the phone the next morning before defendant returned Withers’s
phone.
¶ 12 Henderson testified she was 17 years old, and that she knew defendant as he and Withers
were “in a relationship on and off” for a few years. As to the events of June 10 and 11, 2022,
Henderson’s direct testimony was consistent with Withers’s testimony regarding defendant
arriving at the house, Henderson calling Withers, Withers arriving home, and defendant driving
away from the house in Withers’s vehicle with Withers in the passenger seat. Henderson’s
testimony was also consistent with Withers’s regarding Henderson photographing Withers’s
injuries, searching for Withers’s phone and glasses with the officers, tracking the phone, going to
a friend’s house, and defendant’s return of the phone in the morning. Henderson additionally
testified that when Withers returned home around 2 a.m., she was “distressed” and bruised.
¶ 13 On cross-examination, Henderson denied that Withers’s breath smelled of alcohol when
she returned home around 2 a.m. after she had left with defendant. Around 8 a.m., Henderson
called Withers’s phone and spoke with defendant, asking him to bring Withers’s phone to their
house.
¶ 14 Chicago police detective Jeffry Phillips testified that he interviewed defendant after
defendant was arrested on June 29, 2022. 1 Defendant stated that Withers had called him and asked
The detective’s first name appears in the record as both Jeffry and Jeffrey. We adopt the spelling 1
he provided at trial.
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to meet at 13th and Central Park. He went to that location and argued with Withers “about another
woman.” Defendant entered the driver’s seat of her vehicle while they were “arguing and fighting.”
He took Withers’s phone but returned it during the argument. He admitted possessing Withers’s
key fob.
¶ 15 The parties stipulated that defendant was previously convicted of domestic battery.
¶ 16 Defense counsel called Ronald Tapes Jr. Tapes testified he had known defendant for 11 or
12 years and defendant was “like [his] father.” Tapes was near 13th and Central Park after midnight
on June 11, 2022, along with 10 or 12 other people. Defendant arrived, driven by someone other
than Withers. Tapes knew Withers from the neighborhood.
¶ 17 Withers then arrived alone in a vehicle. Counsel asked Tapes to describe the vehicle, and
Tapes answered, “It was late at night. I wasn’t paying attention. I just know that was the girl that
he’s talking to.” Tapes testified Withers was “already out the car screaming, cursing [defendant]
out,” but then stated that she never exited her vehicle. Defendant approached Withers’s vehicle
after she said that she had his phone. Withers was “drunk or high,” and slurring. She “got to
swinging off him.” Defendant “got tired of her hitting him,” “reached and got his phone,” then
“made the mistake of pulling her out” of the driver’s seat before he walked away. Tapes denied
that defendant took Withers’s keys. Withers reentered her vehicle and followed defendant. Tapes
remained there for about an hour and did not see her return or the police arrive.
¶ 18 On cross-examination, the following colloquy occurred:
“Q. And you said that this was his girl who was there?
A. Girl that pulled up, Shalandra lady, yeah, this is someone he talks to.
Q. Okay. So they were dating?
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A. Yeah, at the time probably.”
¶ 19 Tapes further testified that when defendant pulled Withers out of the vehicle, she landed
on her “butt.”
¶ 20 Defense counsel called defendant. The court asked if defendant understood that he did not
need to testify, and defendant stated he would rather not testify. Following a colloquy with the
court, defendant confirmed he did not want to testify. The defense rested.
¶ 21 Following argument, the court found defendant guilty. As to whether Withers and
defendant had a dating relationship, the court stated that Withers’s testimony that she and
defendant dated was insufficient to establish a dating relationship. However, it noted that Withers
also testified that the relationship had a start and an end, they had lived together, and she was trying
to break up with defendant. The court also referenced defendant’s statement to police that their
argument was over another woman. Further, Henderson testified Withers and defendant “had a
dating relationship,” and “[defendant’s] own witness testified that they were dating or that he was
talking to her.” The court found that the “evidence as a whole,” established that they had a dating
relationship.
¶ 22 The court further determined that defendant committed a battery against Withers as
Withers’s testimony was supported by photographs of her injuries and “her reaction.” Further,
Tapes corroborated that defendant pulled Withers out of her vehicle. The court concluded that
defendant “did, in fact, strike” Withers and, based on “the testimony of all the witnesses,” that he
committed a battery.
¶ 23 The court denied defendant’s posttrial motion. Following a hearing, the court sentenced
defendant to two years in prison.
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¶ 24 On appeal, defendant argues that his trial counsel provided ineffective assistance by calling
Tapes as a witness as his testimony undermined the core defense that the State failed to prove
defendant and Withers had a dating relationship, contradicted defendant’s version of events as told
to Detective Phillips where he never admitted to or described making physical contact with
Withers or dating her, and bolstered the State’s case that defendant committed a battery against
Withers.
¶ 25 A criminal defendant has a constitutional right to the effective assistance of counsel. People
v. Webb, 2023 IL 128957, ¶ 21. A claim that a defendant received ineffective assistance of counsel
is measured against the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Webb,
2023 IL 128957, ¶ 21. To prevail on such a claim, a defendant must show that (1) counsel’s
representation “fell below an objective standard of reasonableness,” and (2) there is a reasonable
probability that, “but for counsel’s errors, the result of the proceeding would have been different.”
Id.
¶ 26 We review de novo whether a defendant received ineffective assistance of counsel. Id. ¶ 23.
If a case may be resolved due to lack of prejudice, the court need not consider whether counsel
performed deficiently. People v. Roland, 2023 IL 128366, ¶ 27. We find that defendant has failed
to establish prejudice.
¶ 27 Under the prejudice prong, a reasonable probability that the result of the proceedings would
have been different means “a probability sufficient to undermine confidence in the outcome.”
Id. ¶ 26. When, as here, a defendant challenges a conviction, he must affirmatively prove that
“there is a reasonable probability that, absent counsel’s errors, the factfinder would have had a
reasonable doubt respecting guilt.” People v. Johnson, 2021 IL 126291, ¶¶ 54-55.
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¶ 28 The question is not simply whether other evidence, unrelated to counsel’s error, sufficed
to support the conviction. People v. Lucious, 2016 IL App (1st) 141127, ¶ 49; see also People v.
Morris, 2013 IL App (1st) 111251, ¶ 116 (question is whether, considering counsel’s deficiency,
the defendant “received a fair trial resulting in a verdict worthy of confidence”). We have found
that “where the trial court expressly relied on” evidence admitted due to an error by counsel, there
was a reasonable probability that the outcome of the trial would have been different. Lucious, 2016
IL App (1st) 141127, ¶ 49. On the other hand, the question is also more than whether it is possible
that the factfinder would have found a reasonable doubt had counsel acted differently. Roland,
2023 IL 128366, ¶ 28. Rather, it must be “reasonably likely” that the result would have been
different. (Emphasis in original.) Id.
¶ 29 Defendant argues that he was prejudiced by counsel’s decision to call Tapes to testify,
noting that the court referenced Tapes’s testimony both in finding that Withers and defendant had
a dating relationship and there was a battery. However, defendant has not established that it is
reasonably likely the result of the proceedings would have been different had his counsel not called
Tapes as a witness.
¶ 30 Defendant was convicted of domestic battery (720 ILCS 5/12-3.2(a)(1) (West 2022)). The
domestic battery statute prohibits knowingly, without legal justification, causing bodily harm to a
family or household member. Id. Family or household members include those “who have or have
had a dating *** relationship,” but “neither a casual acquaintanceship nor ordinary fraternization
between 2 individuals in business or social contexts” constitutes a dating relationship. 720 ILCS
5/12-0.1 (West 2022). We have described a dating relationship as “a serious courtship that at least
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needs to be an established relationship with a significant romantic focus.” (Internal quotation
marks omitted.) People v. Wallace, 2020 IL App (1st) 172388, ¶ 27.
¶ 31 Defendant contends that the court would not have found that Withers and defendant had a
dating relationship absent Tapes’s testimony that Withers was defendant’s “girl” he “talk[ed] to,”
and that defendant and Withers were “probably” dating. He notes that the court remarked that
Withers’s statement that the two had a past dating relationship was insufficient but that
“[defendant’s] own witness testified that they were dating or that he was talking to her,” and “the
evidence as a whole” proved they had a dating relationship.
¶ 32 Nevertheless, as the court also noted, Withers testified to more than just making a statement
that she and defendant had a “past dating relationship.” Specifically, Withers testified that she and
defendant had a “past dating relationship” from 2016 to 2022, and they had lived together off and
on while dating. The long duration of the relationship and the fact that they lived together
distinguishes it from a “casual, nascent, or potential” relationship. See McClellan v. Hull, 2023 IL
App (1st) 220465, ¶ 65 (serious courtships should be distinguished from casual, nascent, or
potential relationships). Further, although the 17-year-old Henderson did not testify that Withers
and defendant had a “dating relationship,” she did testify that they were in a “relationship,” and
this court has stated that, to young people, the term relationship “suggests a much deeper level of
intimacy and commitment” than the term “dating.” Id. ¶ 67. We fail to see why the court would
not have inferred a dating relationship from Henderson’s testimony that they were in a
“relationship” absent Tapes’s testimony.
¶ 33 Henderson also testified that Withers and defendant’s relationship was on and off, implying
that Withers and defendant would break up and reunite. Withers testified that the relationship
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began in 2016 and ended in 2022, and she was trying to end the relationship when the incident
occurred. Such definite distinctions in a relationship’s status and duration would not likely be
drawn in a more casual, platonic, or one-sided relationship. Those pieces of testimony further
suggest that Withers and defendant had, at least at some point, a dating relationship. Also, although
defendant’s statement that their argument was about another woman would not, standing alone,
establish that they had a dating relationship, it adds credence to that interpretation.
¶ 34 Defendant additionally argues that Withers and Henderson’s testimony did not establish a
romantic focus to Withers and defendant’s relationship as they did not testify to details of romantic
conduct, such as whether defendant gifted Withers flowers or they went on dates. See Wallace,
2020 IL App (1st) 172388, ¶ 27 (describing a dating relationship as having “a significant romantic
focus” (internal quotation marks omitted)). But Tapes’s testimony could not have affected the
court’s determination about the romantic focus of the relationship where his testimony also lacked
any details of that sort.
¶ 35 Tapes testified simply that Withers was defendant’s “girl” he “talk[ed] to,” and that they
were probably dating. His testimony was just as proclamatory as Withers and Henderson’s. We
cannot say that Tapes’s testimony “was far stronger than the inference” that could be drawn from
Withers and Henderson’s testimony such that, without Tapes’s testimony, the court would have
determined the relationship lacked adequate romantic focus. See Lucious, 2016 IL App (1st)
141127, ¶¶ 48-49 (counsel’s error resulted in the admission of “direct evidence” of an element of
the offense that the court relied on and “was far stronger than the inference” that could be drawn
from the remaining evidence on that element).
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¶ 36 Despite its similarities to Withers and Henderson’s testimony, defendant contends that
Tapes’s testimony was not cumulative but “powerful corroboration.” See People v. Warren, 2016
IL App (1st) 090884-C, ¶ 81 (distinguishing between corroborative and cumulative evidence).
However, even before Tapes testified, the court heard “powerful corroboration” of Withers’s
testimony that defendant and Withers dated through Henderson’s testimony.
¶ 37 Again, we acknowledge that the question of prejudice is not merely whether there was
other evidence, unrelated to any error by counsel, that would have sufficed to support the
defendant’s conviction. Lucious, 2016 IL App (1st) 141127, ¶ 49. However, in finding that
defendant and Withers had a dating relationship, the court referenced not only Tapes’s testimony
but also much of the other evidence, namely that Withers and defendant’s relationship had a start
and end date, they had lived together, Withers was trying to break up with defendant, defendant
stated their argument was over another woman, and Henderson testified they were in a relationship.
¶ 38 As a result, we are confident that the court’s finding regarding Withers and defendant’s
dating relationship would have been the same even if counsel had not called Tapes as a witness.
We therefore find he has not established prejudice on this issue. See Roland, 2023 IL 128366, ¶ 26
(a reasonable probability that an outcome would have differed is a probability sufficient to
undermine confidence in the outcome); Morris, 2013 IL App (1st) 111251, ¶ 116 (prejudice
question is whether defendant “received a fair trial resulting in a verdict worthy of confidence”).
¶ 39 We are similarly confident that the court’s finding that defendant caused Withers bodily
harm would have been the same even if counsel had not called Tapes as a witness. As defendant
notes, while Withers returned home with injuries she contended defendant inflicted, defendant’s
statement to Detective Phillips did not indicate that he made physical contact with Withers. Then,
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Tapes, the only eyewitness to the events near 13th and Central Park, corroborated Withers that
defendant made physical contact with her, even characterizing the contact as a “mistake.”
Defendant points out that the court found that Tapes corroborated Withers that defendant pulled
her out of the vehicle and determined that defendant committed a battery based on the testimony
of all the witnesses.
¶ 40 However, the court also stated that Withers’s testimony was supported by the photographs
of her injuries and “her reaction.” The photographs show a bite mark on Withers’s arm and a bruise
to her lip, injuries that would not be sustained by defendant pulling her out of the vehicle and her
landing on her “butt” as Tapes testified. The court found that defendant “did, in fact, strike”
Withers. The court’s statements reflect belief in Withers’s testimony that defendant punched her
and bit her arm, facts to which Tapes did not testify. Withers’s testimony and the photographs
were therefore the only direct evidence that defendant punched her and bit her arm and, ultimately,
injured her.
¶ 41 Henderson also testified that Withers returned home “distressed” and with bruises. The
testimony elicited regarding Withers’s injuries and behavior when she returned home, along with
the photographs of her injuries, were already in evidence before Tapes testified. And, while
defendant did not admit in his statement to Detective Phillips that he battered Withers, he also did
not deny making physical contact with her. Rather, he acknowledged they were “arguing and
fighting” and was silent on whether the confrontation became physical. We are therefore not
convinced that, through Detective Phillips’s testimony regarding defendant’s statement, defendant
provided an account that conflicted with Withers’s regarding whether defendant caused Withers
bodily harm, let alone one that made it reasonably likely that, had counsel not called Tapes, the
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court would have found a reasonable doubt that defendant inflicted bodily harm on Withers. Thus,
despite the court’s references to Tapes’s testimony, its statements as a whole provide confidence
that it would have found bodily harm absent Tapes’s testimony, and defendant has also failed to
establish prejudice on this issue. See Roland, 2023 IL 128366, ¶ 26; Morris, 2013 IL App (1st)
111251, ¶ 116.
¶ 42 In sum, defendant has not shown he suffered prejudice under Strickland from counsel’s
decision to call Tapes as a witness. His ineffective assistance of counsel claim therefore must fail.
Webb, 2023 IL 128957, ¶ 21; Johnson, 2021 IL 126291, ¶¶ 54-55. Accordingly, we affirm his
conviction of domestic battery.
¶ 43 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 44 Affirmed.
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