People v. Foster

2021 IL App (2d) 200098-U

Opinion

2021 IL App (2d) 200098-U No. 2-20-0098 Order filed December 23, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 17-CF-2358 ) KENNRITH L. FOSTER, ) Honorable ) Donald Tegeler, Jr., Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE ZENOFF delivered the judgment of the court. Presiding Justice Bridges and Justice Hutchinson concurred in the judgment.

ORDER

¶1 Held: Defendant’s convictions were affirmed where (1) he validly waived his right to a jury trial, (2) there was sufficient evidence to convict him of armed violence, where the State established that defendant committed a battery in a public place of accommodation, as required for the predicate offense of aggravated battery, and (3) the trial court did not abuse its discretion in sentencing defendant to a cumulative 80-year prison sentence.

¶2 Following a bench trial, defendant, Kennrith L. Foster, was found guilty of attempt first-

degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2016)), three counts of armed robbery (720

ILCS 5/18-2(a)(2)-(4) (West 2016)), three counts of armed violence (720 ILCS 5/33A-2(a)-(c)

(West 2016)), aggravated battery (720 ILCS 5/12-3.05(e)(1) (West 2016)), aggravated domestic 2021 IL App (2d) 200098-U

battery (720 ILCS 5/12-3.3(a-5) (West 2016)), and unlawful use or possession of a weapon by a

felon (720 ILCS 5/24-1.1(a) (West 2016)). The trial court sentenced defendant to an aggregate 80

years’ incarceration in the Illinois Department of Corrections. Defendant appeals, and we affirm.

¶3 I. BACKGROUND

¶4 In February 2018, defendant was charged with the offenses referenced above arising out of

the beating, strangling, and shooting of Angela Edmonds 1 on December 17, 2017.

¶5 At defendant’s arraignment, the trial court explained that defendant had the right to plead

not guilty and that his trial “either could be a bench trial or jury trial.” Defendant pleaded not

guilty. Subsequently, before defendant’s bench trial, defense counsel explained to the court that

defendant “executed and informed me that he wishes to waive Jury but go Bench.” Defendant

raised no objection. The following colloquy then occurred:

“THE COURT: All right. Let’s go through the Waiver, first. Mr. Foster, I have

before my [sic] a Waiver of Trial by Jury, did you sign this?

THE DEFENDANT: Yes, sir, I did.

THE COURT: You understand if you ask for a trial by the Bench, most likely

myself on Monday, and you waive a Jury Trial, you waive it forever, you cannot come

back and ask for a Jury Trial?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Has anyone forced you to sign this?

1 The charging documents refer to Edmonds as “Angela Foster.” At trial, Edmonds

testified that, at the time the charging documents were filed, she had changed her surname to

“Edmonds” but had not yet changed any of her identification documents.

-2- 2021 IL App (2d) 200098-U

THE DEFENDANT: No, Your Honor.

THE COURT: Has anyone promised you anything other than the fact you would

not have a jury, to sign this?

THE COURT: Has anyone threatened you in any way to sign this?

THE COURT: You’re doing this of your own free will?

THE COURT: Okay, I’ll accept the Waiver and in that case, we’ll set it up for trial

on Monday.”

¶6 On October 21, 2019, a bench trial was held. Edmonds testified that she and defendant

met in about 2011 and began a dating relationship that eventually led to their marriage in 2015.

Within days of their marriage, however, their relationship began to deteriorate, and, in the summer

of 2017, Edmonds obtained a divorce from defendant. Thereafter, she began dating a man named

Lamongo Snow. On December 10, 2017, after learning of Edmonds’s relationship with Snow,

defendant began repeatedly calling Edmonds’s cell phone. Over several days, defendant called

Edmonds “hundreds” of times, begging her to end her relationship with Snow, threatening to harm

himself, and threatening to harm her. As a result, Edmonds changed her phone number. On

December 15, 2017, Edmonds and Snow married.

¶7 Edmonds testified that, in the early-morning hours of December 17, 2017, she was working

an overnight shift alone at the Shell gas station and convenience store in Sugar Grove, Illinois.

She described the layout of the convenience store, noting that a long sales counter was situated to

the left of the doors as customers enter. Beyond the counter was a short hallway that housed

-3- 2021 IL App (2d) 200098-U

restrooms, as well as an office next to the men’s restroom. The office included a sink, a desk, a

computer to clock in, and cleaning supplies. A sign on the door to the office read, “Employees

Only,” and the door was propped completely open by a kickstand.

¶8 During Edmonds’s shift, defendant called the store phone four times. Because defendant’s

information appeared on the phone’s caller identification, Edmonds ignored the first several calls.

Eventually, however, Edmonds answered, and defendant told her that he forgave her “for getting

married,” but that she needed to leave Snow. Edmonds told defendant to “move on,” then hung

up.

¶9 Edmonds testified that, minutes later, at about 3 a.m., defendant entered the store and

approached her while she stood behind the sales counter. Defendant pointed a gun at Edmonds

and told her “Don’t run,” or he would shoot her. Edmonds ran to the office in the hallway and

attempted to close the door, but she was unable to do so because it was propped open by the

kickstand. As defendant approached her, she panicked and fell to the ground face-down.

¶ 10 Defendant sat on Edmonds’s back and began to hit her in the back of her head with his fist

for approximately two minutes. During the struggle, defendant “snatched” Edmonds’s wedding

rings from her fingers. Right then, Snow attempted to call Edmonds on her cell phone, which was

on the floor in front of her, and Edmonds and defendant both reached for the phone. Edmonds

grabbed the phone first, but defendant began squeezing her hand and banging it on the ground.

Defendant told Edmonds, “You are going to die, Bitch,” and “If I can’t have you, nobody can.”

¶ 11 Edmonds testified that, while she begged defendant to stop, defendant, who was still armed

with the gun, pulled the trigger. Edmonds testified that she “felt the breeze” from the gun and felt

her head hit the floor. Edmonds acknowledged that she did not remember telling police officers

that defendant shot her “before he started beating [her],” but she agreed that she would have been

-4- 2021 IL App (2d) 200098-U

clearer as to the sequence of events closer to December 17, 2017. Edmonds explained that, after

defendant shot her, he began punching her in the back of the head and strangling her by placing

her in a chokehold for two to three minutes. Edmonds struggled to breathe, and she eventually

blacked out.

¶ 12 Approximately 15 minutes after defendant left the Shell station, Andrew Rooker entered

the store. Rooker testified that he used the restroom, then grabbed a soda and went to the register.

No one was there to wait on him, and he did not see anyone else in the store. After some time,

Rooker heard a phone ringing, so he looked toward the back office and “saw a foot through the

door.” Rooker went to the office and discovered Edmonds on the floor. Rooker checked to see if

Edmonds was breathing, then called 911.

¶ 13 When the police and paramedics arrived at the scene, Edmonds was “groggy.” Even so,

Edmonds told the first responders that “it was Ken” who hurt her. Sugar Grove police officer Roy

Hamold testified that he photographed the scene and observed blood on the floor, but he found no

shell casings or jewelry. Kane County Sheriff’s detective Amy Johnson was assigned to assist the

Sugar Grove Police Department with evidence recovery. She testified that she did not find any

rings, cell phones, shell casings, or projectiles. Johnson learned that a surveillance video existed,

and she viewed it.

¶ 14 Edmonds was taken to the emergency room at Presence-Mercy Hospital in Aurora, Illinois.

Upon Edmonds’s arrival, Dr. Marlaina Norris inspected her injuries. Dr. Norris testified that

Edmonds had a facial hematoma, or enlarged bruising, on the left side of her forehead. Dr. Norris

ordered a CAT scan, and she reviewed the images. Dr. Norris observed “a metallic foreign body”

on the right side of Edmonds’s head, behind her ear. Because there were no head trauma specialists

-5- 2021 IL App (2d) 200098-U

at Presence-Mercy Hospital, Dr. Norris initiated the process to have Edmonds transferred to Good

Samaritan Hospital in Downers Grove, Illinois.

¶ 15 Before Edmonds’s transfer, Dr. John Tauscher, a radiologist, also reviewed Edmonds’s

CAT scans. Dr. Tauscher testified that he observed hematomas in the subcutaneous tissue in the

frontal area above the eye, a bullet-shaped metal object in the subcutaneous tissue of the right side

of the skull, and a hemorrhage in the subarachnoid space in the right parietal lobe consistent with

trauma from the metal object observed.

¶ 16 After arriving at Good Samaritan Hospital, Edmonds was treated by Dr. Leah Tatebe, a

trauma surgeon. Dr. Tatebe testified that she observed several bruises on Edmonds’s face and a

metal fragment that appeared to be a bullet inside a one-to-two centimeter wound on the back right

of her scalp. Dr. Tatebe removed the bullet “pretty eas[ily]” during an exploratory procedure. Dr.

Tatebe explained that the bullet did not penetrate Edmonds’s skull, but that it caused a traumatic

brain injury nonetheless. Dr. Tatebe noticed that, while Edmonds underwent physical therapy,

Edmonds was unsteady on her feet, needed assistance walking, and suffered from constant nausea.

¶ 17 Lieutenant Richard Robertson of the Aurora Police Department testified as a firearms and

firearms ammunition expert. Robertson testified that he reviewed the surveillance video from the

store. He noted that he observed a “gaseous discharge” emanate from the gun while defendant

held it to the right side of Edmonds’s head, which, in Robertson’s opinion, established that

defendant shot at Edmonds’s head at nearly point-blank range. Robertson acknowledged that

Edmonds did not suffer the injuries one would expect from being shot under such circumstances.

Robertson believed that this was because “environmental factors” caused the ammunition in

defendant’s gun to malfunction. Robertson explained that when ammunition is particularly old or

exposed to moisture, gunpowder can degrade, such that it does not burn properly. When that

-6- 2021 IL App (2d) 200098-U

occurs, there is insufficient pressure to push out a projectile at a normal velocity and insufficient

energy to eject a shell casing. Robertson noted that, although the surveillance video showed

defendant discharging the gun, he saw no evidence of a shell casing being ejected.

¶ 18 Before the State rested, the parties stipulated that defendant was convicted of felony

unlawful possession of a controlled substance in Cook County Circuit Court Case No. 00 CR

1192101.

¶ 19 Defendant testified in his own defense. He explained that he moved out of Edmonds’s

home in November of 2017 and was living in East Chicago, Indiana. On the morning of December

16, 2017, Edmonds called defendant, and they discussed attempting to reconcile their marriage.

Defendant claimed that, at that time, he did not know that he and Edmonds were divorced, because

he was never served with court papers, and he did not appear in court for any divorce proceedings.

Consequently, defendant thought that reconciling their marriage “could work.” Later that day,

however, defendant learned from a family member that Edmonds had, in fact, married Snow.

Defendant felt “a lot of pain” and “started getting high and drunk with a friend” to cope.

Defendant’s friend told him that he should “find out why” Edmonds married Snow and “scare

her.” Defendant “thought it seemed like a good idea,” took a gun from his friend, and left for

Edmonds’s place of employment.

¶ 20 When defendant arrived, he showed Edmonds the gun and told her, “Don’t move.”

Defendant testified that he did so because he “wanted her to be scared.” Defendant admitted that,

when Edmonds ran into the office, he followed her and began to hit her because he “wanted her to

feel some sort of the physical pain that [he] was feeling emotionally.” Defendant then saw that

Edmonds’s phone was receiving a call from someone identified as “My husband.” At that point,

he “really knew” that Edmonds had married someone else. Defendant claimed he did not

-7- 2021 IL App (2d) 200098-U

remember if he had the gun out at that point and did not know if it “went off.” Defendant explained

that he put Edmonds in a chokehold to “put her to sleep” so that he could “get away.” Defendant

admitted that, while Edmonds lay unconscious, he placed his foot on her back and applied pressure,

stomped on her with his foot, and jumped on her back—landing with both feet—two or three times.

Defendant reiterated that he wanted to cause Edmonds physical pain. Defendant also admitted

that he took Edmonds’s rings and cell phone because the rings “were the sources of [his] pain,”

and because he knew her wedding pictures would be on the phone. Defendant then left the store.

Defendant maintained that he “never knew that the gun went off.”

¶ 21 Following closing arguments, the trial court found defendant guilty on all counts.

Defendant filed posttrial motions, including a motion for a new trial and motions alleging

ineffective assistance of counsel. On December 23, 2019, the trial court denied those motions.

¶ 22 At sentencing, defendant’s counsel asked the court to consider that Edmonds did not suffer

life-threatening injuries. Counsel asserted that the bullet did not proceed through Edmonds’s skull

to her brain and that the bullet was removed with relative ease. Counsel also argued that defendant

“led a law-abiding life for a substantial period of time.” Counsel referred the court to the

presentence investigation report. That report showed that defendant had a criminal history of

felonies and misdemeanors dating back to 1991. However, counsel emphasized that defendant’s

last felony conviction was in 2000 for unlawful possession of a controlled substance, and defendant

had no criminal history for the next “approximately 16 years.” Counsel further argued that

defendant acted under a strong provocation after finding out that Edmonds was married to someone

else and that defendant’s conduct was unlikely to recur.

¶ 23 The trial court acknowledged that defendant did not have a lengthy criminal history, but it

noted that he has nevertheless been “a convicted felon at least since 1991.” The court further noted

-8- 2021 IL App (2d) 200098-U

that, while defendant’s conduct was unlikely to recur, that conduct “was reprehensible” and “one

of the most violent attacks I’ve ever seen.” The court rejected defendant’s claim that he acted

under strong provocation, as defendant drove all the way from Indiana to Sugar Grove, Illinois,

and therefore had “at least an hour to think about his actions.” Finally, the court explained that

Edmonds “should be dead,” considering that she “had a bullet literally enter her head.” Even so,

despite defendant’s efforts to shoot, beat, and strangle Edmonds, Edmonds was “able to survive,”

although “she was not able to walk away from this.” Ultimately, the trial court sentenced defendant

to 45 years in prison for attempt first-degree murder. That sentence was to run consecutive to

concurrent prison terms of 35 years for armed violence, 33 years for armed robbery, and five years

for unlawful possession or use of a weapon by a felon. Accordingly, the court sentenced defendant

to a total term of 80 years of imprisonment. 2

¶ 24 On January 6, 2020, defendant filed a motion to reconsider sentence, which the trial court

denied on January 30, 2020. Defendant timely appealed.

¶ 25 II. ANALYSIS

¶ 26 A. Jury Trial Right

¶ 27 Defendant first argues that the trial court erred in accepting his jury waiver because the

waiver was invalid. Specifically, he contends that inadequate admonitions by the trial court

prohibited him from making a knowing, voluntary, and intelligent waiver. Defendant concedes

that he forfeited this issue because he did not challenge the validity of his waiver in the trial court.

See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (both a trial objection and written posttrial motion

raising the issue are required to preserve issue for review). However, defendant invokes the plain-

error doctrine.

2 The trial court determined that the remaining counts merged into the foregoing counts.

-9- 2021 IL App (2d) 200098-U

¶ 28 Under the plain-error doctrine, a reviewing court may consider an unpreserved error when

(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone

threatened to tip the scales of justice against the defendant, regardless of the seriousness of the

error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness

of the defendant’s trial and challenged the integrity of the judicial process, regardless of the

closeness of the evidence. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). The first step in

conducting plain-error review, however, is determining whether error occurred. Piatkowski, 225

Ill. 2d at 565.

¶ 29 The right to a trial by jury is a fundamental right guaranteed by both the United States

Constitution (U.S. Const., amends. VI, XIV) and the Illinois Constitution (Ill. Const. 1970, art. I,

§ 8). People v. Bracey, 213 Ill. 2d 265, 269 (2004). A defendant may waive the right to a jury

trial, but to be valid, the waiver must be knowingly and voluntarily made. People v. Bannister,

232 Ill. 2d 52, 65 (2008). Consistent with these constitutional requirements, section 103-6 of the

Code of Criminal Procedure of 1963 provides that “[e]very person accused of an offense shall have

the right to a trial by jury unless *** understandingly waived by defendant in open court.” 725

ILCS 5/103-6 (West 2016). Section 115-1 further provides that “[a]ll prosecutions except on a

plea of guilty or guilty but mentally ill shall be tried by the court and a jury unless the defendant

waives a jury trial in writing.” 725 ILCS 5/115-1 (West 2016).

¶ 30 While the trial court has a duty to ensure that a defendant’s waiver of his or her right to a

jury trial is made expressly and understandingly, the court is not required to provide any particular

admonition or information regarding that right. Bannister, 232 Ill. 2d at 66; People v. Rincon, 387

Ill. App. 3d 708, 717-18 (2008). Thus, “[w]hether a jury waiver is valid cannot be determined by

application of a precise formula, but rather turns on the particular facts and circumstances of each

- 10 - 2021 IL App (2d) 200098-U

case.” Bracey, 213 Ill. 2d at 269. The pivotal knowledge that the defendant must understand when

waiving the right to a jury trial is that the facts of the case will be determined by a judge and not a

jury. Bannister, 232 Ill. 2d at 69. Defendant bears the burden of establishing that his jury waiver

was invalid. People v. Reed, 2016 IL App (1st) 140498, ¶ 7.

¶ 31 “Generally, a jury waiver is valid if it is made by defense counsel in defendant’s presence

in open court, without an objection by defendant.” Bracey, 213 Ill. 2d at 270; Rincon, 387 Ill.

App. 3d at 718; see also People v. Frey, 103 Ill. 2d 327, 332 (1984) (“Recognizing that the accused

typically speaks and acts through his attorney, we have given effect to jury waivers made by

defense counsel in defendant’s presence where defendant gave no indication of any objection to

the court hearing the case.”). Additionally, “[a]lthough a signed jury waiver alone does not prove

a defendant’s understanding, it is evidence that a waiver was knowingly made.” Reed, 2016 IL

App (1st) 140498, ¶ 7. Further, a defendant’s criminal history can support a finding that he or she

knowingly waived the right to a jury trial because it evidences experience with the criminal justice

system. See People v. Tooles, 177 Ill. 2d 462, 471 (1997) (“We further observe that defendant’s

criminal record consisted of four previous convictions, through which he was presumably familiar

with his constitutional right to a trial by jury and the ramifications attendant to waiving this right.”);

People v. Thomas, 2019 IL App (2d) 160767, ¶ 19 (“[D]efendant’s criminal history bolsters the

determination that he understood his rights, based on his experience with the criminal justice

system.”).

¶ 32 Under the circumstances here, we hold that defendant knowingly and voluntarily waived

his right to a jury trial. At defendant’s arraignment, the trial court informed defendant that, if he

pleaded not guilty, his trial “either could be a bench trial or jury trial.” Subsequently, at the final

pretrial hearing, defendant was present in court with his counsel. Defendant’s counsel presented

- 11 - 2021 IL App (2d) 200098-U

a signed jury waiver form and told the court that defendant “executed and informed me that he

wishes to waive Jury but go Bench.” Defendant did not object or indicate that he had any

questions. Accordingly, defendant’s “silence while his *** attorney request[ed] a bench trial

provides evidence that the waiver is valid.” Reed, 2016 IL App (1st) 140498, ¶ 7.

¶ 33 The trial court then said, “Let’s go through the Waiver,” and immediately asked defendant

if he signed the jury waiver form. Defendant answered that he did. The court informed defendant

that, “if you ask for a trial by the Bench, most likely myself on Monday, and you waive a Jury

trial, you waive it forever.” Defendant acknowledged that he understood. The trial court asked

defendant if anyone threatened him, forced him to sign the waiver, or promised him “anything

other than the fact that [he] would not have a jury.” Defendant answered, “No, Your Honor.”

Finally, the trial court asked defendant if he was “doing this of [his] own free will,” and defendant

answered, “Yes, Your Honor.” At no point did defendant ask any questions about the jury waiver

or otherwise indicate that he did not understand it. See Reed, 2016 IL App (1st) 140498, ¶ 8

(responses to trial court’s questioning and absence of any objection or questions from defendant

evidenced a valid jury waiver).

¶ 34 Moreover, the record establishes that defendant has a criminal history dating back to 1991

consisting of three misdemeanors and three felonies. The presentence investigation report

indicates that defendant pleaded guilty to one of the misdemeanors and that he was last convicted

of a felony in 2000. In light of defendant’s experience with the criminal justice system, his

criminal record supports the conclusion that he understood his right to a jury trial and the

consequences of waiving that right. Thomas, 2019 IL App (2d) 160767, ¶ 19.

¶ 35 Defendant counters that Tooles requires a trial court to explain the differences between a

jury trial and bench trial and to ascertain whether a defendant has consulted with counsel prior to

- 12 - 2021 IL App (2d) 200098-U

signing a written jury waiver. Defendant argues that, because the trial court failed to make those

“requisite inquiries,” his waiver was invalid. Defendant’s interpretation of Tooles is misguided.

In Tooles, our supreme court reviewed the trial records in three separate cases to determine whether

the defendants had each understandingly waived their right to a jury trial. Tooles, 177 Ill. 2d at

469-73. At every trial, the trial court spoke directly to the defendant. Tooles, 177 Ill. 2d at 469-

72. Defendant Tooles was asked if he understood what a jury trial was and was prompted to

explain that concept to the court, which he did. Tooles, 177 Ill. 2d at 469. Tooles was also asked

if his jury waiver was the product of any promises or threats, and Tooles affirmed that it was not.

Tooles, 177 Ill. 2d at 470. Defendant Farmer was asked if he understood that, by giving up a jury

trial, his case would be heard by the judge sitting without a jury, and Farmer answered that he did.

Tooles, 177 Ill. 2d at 471. Defendant Gray received an explanation of both a jury trial and a bench

trial, and he acknowledged that he understood that, by waiving a jury, his case would proceed as

a bench trial. Tooles, 177 Ill. 2d at 472.

¶ 36 Our supreme court concluded that all three defendants had understandingly waived their

right to a jury trial under the circumstances, referencing the trial courts’ admonitions in each case

with approval. Tooles, 177 Ill. 2d at 470-73. However, the supreme court made clear that whether

a jury waiver is made understandingly turns on the facts and circumstances of each case, reiterating

the longstanding principle that “no set admonition or advice is required before an effective waiver

of that right may be made.” Tooles, 177 Ill. 2d at 469. Thus, contrary to defendant’s claim, Tooles

sets forth no specific admonition that a trial court must give to render a defendant’s jury waiver

valid.

¶ 37 Defendant also relies on People v. Sebag, 110 Ill. App. 3d 821 (1982), but his reliance on

that case is similarly misplaced. In Sebag, the defendant was charged with battery and public

- 13 - 2021 IL App (2d) 200098-U

indecency. Sebag, 110 Ill. App. 3d at 822. The defendant, acting pro se, signed a jury waiver

form. Sebag, 110 Ill. App. 3d at 825, 828. As to the battery charge, the trial court informed him

that he could have his case tried before a jury or judge and that, if he waived a jury, he could not

reinstate it. Sebag, 110 Ill. App. 3d at 828-29. The appellate court held that the record did not

establish that the defendant waived his jury trial right on the public indecency charge, particularly

where he was not familiar with criminal proceedings and did not have the benefit of counsel.

Sebag, 110 Ill. App. 3d at 829. Sebag is distinguishable because here, defendant was represented

by counsel at the time of the waiver, and his criminal record indicates that he was familiar with

criminal proceedings.

¶ 38 This case more closely resembles Reed. In Reed, the defendant was present with his

counsel at several pretrial hearings. Reed, 2016 IL App (1st) 140498, ¶ 2. At the hearings, the

defendant’s counsel told the court multiple times that the trial would be a bench trial, and the

defendant remained silent on each occasion. Reed, 2016 IL App (1st) 140498, ¶ 2. On the day of

trial, the trial court asked whether there would be a bench or jury trial, and the defendant’s counsel

answered “bench.” Reed, 2016 IL App (1st) 140498, ¶ 2. The defendant raised no objection and

subsequently informed the court that he signed a written waiver, that he wished to waive his jury

right and submit to a bench trial, and that no promises or threats compelled his waiver. Reed, 2016

IL App (1st) 140498, ¶ 2. The appellate court concluded that the defendant’s waiver was valid.

Reed, 2016 IL App (1st) 140498, ¶ 8. The court explained that the defendant’s silence on every

occasion in which his counsel said they would pursue a bench trial, the presence of the written

waiver, and the defendant’s responses to the trial court’s questioning all evidenced a knowing

waiver. Reed, 2016 IL App (1st) 140498, ¶ 8. The court also found it significant that the defendant

- 14 - 2021 IL App (2d) 200098-U

had a prior criminal record, as that evidenced his familiarity with the criminal justice system and

his right to a jury trial. Reed, 2016 IL App (1st) 140498, ¶ 8.

¶ 39 Here, defendant has failed to establish that his waiver was invalid. Like Reed, the record

establishes that defendant did not object when his counsel informed the trial court that defendant

wished to waive a jury, and at no point did defendant ask any questions or indicate that he did not

understand his jury right or the consequences of waiving it. Additionally, defendant’s counsel

presented a signed jury waiver, which defendant acknowledged signing. Finally, given

defendant’s prior experience with the criminal justice system, he presumably knew of his right to

a trial by jury and the ramifications of waiving that right. We hold that defendant knowingly and

voluntarily waived his right to a jury trial, such that the waiver was valid. Accordingly, defendant

has not met his burden to show that a clear or obvious error occurred.

¶ 40 B. Public Place of Accommodation

¶ 41 Defendant next contends that the evidence was insufficient to prove him guilty beyond a

reasonable doubt of armed violence, which was predicated on his commission of aggravated

battery. Specifically, defendant argues that the State failed to prove the predicate felony of

aggravated battery because the State did not establish that he committed a battery “on or about” a

“public place of accommodation.”

¶ 42 Where a defendant raises a challenge to the sufficiency of the evidence, “ ‘the relevant

question 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 the crime beyond a reasonable

doubt.’ ” (Emphasis in original.) People v. Collins, 106 Ill. 2d 237, 261 (1985) (quoting Jackson

v. Virginia, 443 U.S. 307, 319 (1979)). A reviewing court “will not substitute its judgment for that

of the trier of fact on issues involving the weight of the evidence or the credibility of the witnesses.”

- 15 - 2021 IL App (2d) 200098-U

People v. Brown, 2013 IL 114196, ¶ 48. “A criminal conviction will not be set aside unless the

evidence is so improbable or unsatisfactory as to create a reasonable doubt of the defendant’s

guilt.” People v. Siguenza-Brito, 235 Ill. 2d 213, 225 (2009).

¶ 43 Defendant’s sufficiency-of-the-evidence argument involves an issue of statutory

interpretation, and such issues are reviewed de novo. People v. Ward, 215 Ill. 2d 317, 324 (2005).

“[T]he cardinal rule of statutory construction is to ascertain and give effect to the true intent of the

legislature.” Ward, 215 Ill. 2d at 324. In doing so, the court “presum[es] the legislature did not

intend to create absurd, inconvenient or unjust results.” People v. Christopherson, 231 Ill. 2d 449,

454 (2008). “Accordingly, courts should consider the statute in its entirety, keeping in mind the

subject it addresses and the legislature’s apparent objective in enacting it.” Christopherson, 231

Ill. 2d at 454. “The best indication of legislative intent is the statutory language, given its plain

and ordinary meaning.” Christopherson, 231 Ill. 2d at 454.

¶ 44 Here, the State charged defendant with armed violence, which requires the State to prove

the commission of a predicate felony. 720 ILCS 5/33A-2(c) (West 2016). The predicate felony

alleged was aggravated battery. In relevant part, a person commits aggravated battery when, “in

committing a battery, other than by the discharge of a firearm, he or she is or the person battered

is on or about a public way, public property, [or] a public place of accommodation or amusement.”

720 ILCS 5/12-3.05(c) (West 2016). The State alleged that defendant committed aggravated

battery by committing a battery “inside the Shell Gas Station, a public place of accommodation.”

Defendant argues that the State failed to prove that the battery occurred in a “public place of

accommodation,” because the offense took place in a “private back office” that was “meant for

employees” and, therefore, “inaccessible to the public.”

- 16 - 2021 IL App (2d) 200098-U

¶ 45 The aggravated battery statute does not define “public place of accommodation.”

However, in People v. Ward, 95 Ill. App. 3d 283 (1981), this court considered the meaning of that

language in examining the applicability of the situs enhancement to a battery occurring inside the

victim’s car, which was situated in the parking lot of a Holiday Inn. Ward, 95 Ill. App. 3d at 285.

We interpreted the phrase “on or about a public way, public property or public place of

accommodation or amusement” broadly, explaining that “the essential allegation” under that

language “is that the battery occurred in a public area.” Ward, 95 Ill. App. 3d at 287. Thus,

“[w]hether the property was actually publicly owned and, therefore, ‘public property’ rather than

a privately owned ‘public place of accommodation’ is irrelevant; what is significant is that the

alleged offense occurred in an area accessible to the public.” Ward, 95 Ill. App. 3d at 287-88; see

also People v. Crawford, 2021 IL App (5th) 170496, ¶ 60 (quoting Blackburn v. Johnson, 187 Ill.

App. 3d 557, 564 (1989)) (“The required question for an aggravated battery under section 3.05(c)

‘is whether the area where the offense occurred is accessible to the public.’ ”); People v. Brown,

2019 IL App (1st) 161204, ¶ 49 (noting that Ward “broadly construed the statutory language to

encompass any battery committed in a public area”); People v. Murphy, 145 Ill. App. 3d 813, 815

(1986) (“[T]he terms ‘place of public accommodation or amusement’ seem to apply generically to

places where the public is invited to come into and partake of whatever is being offered therein.”).

Our broad interpretation was informed by the legislative purpose behind the situs enhancement

language. We explained that our legislature was “[o]bviously *** of the belief that a battery

committed in an area open to the public, whether it be a public way, public property or public place

of accommodation or amusement, constitutes a more serious threat to the community than a battery

committed elsewhere.” Ward, 95 Ill. App. 3d at 287.

- 17 - 2021 IL App (2d) 200098-U

¶ 46 Subsequent cases have embraced Ward’s rationale and its broad reading of the aggravated

battery statute’s situs language. For example, in People v. Lee, 158 Ill. App. 3d 1032 (1987), the

court held that the language applied to a battery occurring in a parking lot “immediately outside”

a public place of accommodation—a gas station convenience store—in light of Ward’s

community-harm-prevention rationale. Lee, 158 Ill. App. 3d at 1036. Finding Ward persuasive,

the court agreed that the legislature believed that a “battery committed in an area open to the public

constitutes a more serious threat to the community than a battery committed elsewhere.”

(Emphasis in original.) Lee, 158 Ill. App. 3d at 1036. Interpreting the statutory language “in light

of the harm it was directed at preventing,” the court concluded that there was “no logical or

reasonable basis *** to distinguish between the premises within the ‘public place of

accommodation’ and the parking lot immediately outside its door.” Lee, 158 Ill. App. 3d at 1036;

see also People v. Pergeson, 347 Ill. App. 3d 991, 994 (2004) (battery occurring “about 50 feet

from the entrance doors” of a mall fell under aggravated battery situs language).

¶ 47 Defendant, on appeal, concedes that the “gas station and convenience store were accessible

to the public.” However, he relies on People v. Johnson, 87 Ill. App. 3d 306 (1980), to assert that

the office where the battery occurred was not a public place of accommodation, because it was

“meant for employees” and, therefore, was “inaccessible to the public.” However, we do not find

Johnson applicable.

¶ 48 In Johnson, the First District considered whether a tavern restroom constituted public

property or a public place of accommodation or amusement. Johnson, 87 Ill. App. 3d at 308. The

court held that the intent of the legislature, as expressed by the aggravated battery statute’s

language, was not to include a tavern restroom under the situs enhancement subsection. Johnson,

87 Ill. App. 3d at 308. The court explained that a “tavern is private property open to the public for

- 18 - 2021 IL App (2d) 200098-U

a limited purpose. To include a tavern restroom within the definition of ‘public property or public

place of accommodation or amusement’ [citation] would not comport with the legislative intent of

the statute.” Johnson, 87 Ill. App. 3d at 308. Johnson, however, was decided prior to this court’s

decision in Ward, which interpreted the situs language more broadly in light of the legislature’s

intent to prevent harm to the community by enhancing any battery occurring “in an area accessible

to the public.” Ward, 95 Ill. App. 3d at 288. Indeed, in Ward, we broadly interpreted “on or about

a *** public place of accommodation” to encompass a battery occurring inside the victim’s vehicle,

which was situated in a hotel parking lot. Ward, 95 Ill. App. 3d at 285, 287-88. Consequently,

we do not find defendant’s reliance on Johnson persuasive.

¶ 49 Here, on the facts of this case, we hold that the office was a public place of accommodation

because it was “accessible to the public.” Ward, 95 Ill. App. 3d at 288. The office was located

inside of a Shell gas station and convenience store. The Shell station itself was a public place of

accommodation, where customers were invited inside to buy gas and goods in the convenience

store. See Lee, 158 Ill. App. 3d at 1034, 1036 (gas station was public place of accommodation).

The office was situated in the same hallway that customers had to walk down to access restrooms

that were available for customers to use. The office was directly next to the men’s restroom, and

the door to the office was propped completely open by a kickstand during business hours. Indeed,

the evidence established that at least one customer accessed the office. Rooker testified that, after

finding no one to help him complete his purchase, he went to the office and discovered Edmonds

inside, and surveillance footage established that Rooker entered the office.

¶ 50 We further note that our holding comports with the legislative intent behind the situs

enhancement language. Adopting defendant’s position that the battery did not occur on or about

a public place of accommodation because it occurred in an office “meant for employees” undercuts

- 19 - 2021 IL App (2d) 200098-U

the legislature’s aim to protect the community from batteries occurring in areas open and accessible

to the public. Under defendant’s interpretation, a battery occurring immediately in front of the

Shell gas station’s register counter would implicate the situs enhancement, but a battery occurring

immediately behind that same counter would not, simply because it is not an area “meant” for

customers, and despite the similar threat to the community that both batteries would pose. See

Lee, 158 Ill. App. 3d at 1036 (given the legislative intent to protect community from batteries

occurring in public, there was no reasonable basis for distinguishing between premises within the

public place of accommodation and a parking lot “immediately outside its door”); Christopherson,

231 Ill. 2d at 454 (we presume the legislature did not intend to create absurd, inconvenient or

unjust results). The risk of harm to the community is evident here, where the battery occurred in

an office located inside of a business establishment open to the public, next to restrooms available

for customers to use, and with its door propped completely open during business hours.

¶ 51 Because the office was “an area accessible to the public,” we determine that the State

presented sufficient evidence to prove that defendant committed a battery on or about a public

place of accommodation.

¶ 52 C. Excessive Sentence

¶ 53 Finally, defendant argues that the trial court abused its discretion in sentencing him to an

aggregate 80-year term of imprisonment. Defendant contends that the sentence was excessive

because this was his first “significant offense” and because Edmonds suffered only non-life-

threatening injuries. This argument is meritless.

¶ 54 The trial court’s sentencing decision is entitled to great deference. People v. Alexander,

239 Ill. 2d 205, 212 (2010). When a sentence imposed is within the statutory limits for the offense,

it will not be disturbed absent an abuse of discretion. People v. Garibay, 366 Ill. App. 3d 1103,

- 20 - 2021 IL App (2d) 200098-U

1108 (2006). A sentence is an abuse of discretion where it is “ ‘greatly at variance with the spirit

and purpose of the law, or manifestly disproportionate to the nature of the offense.’ ” Alexander,

239 Ill. 2d at 212 (quoting People v. Stacey, 193 Ill. 2d 203, 210 (2000)). In determining the

appropriate sentence to impose, a trial court may consider the nature of the crime, the protection

of the public, deterrence, and punishment, as well as the defendant’s rehabilitative prospects and

youth. Garibay, 366 Ill. App. 3d at 1109. The weight to be attributed to each factor in aggravation

and mitigation depends upon the circumstances of each case. Garibay, 366 Ill. App. 3d at 1109.

The trial court need not specifically identify and assign a value to each mitigating factor, and the

existence of a mitigating factor does not obligate the trial court to impose the minimum sentence.

People v. Adamcyk, 259 Ill. App. 3d 670, 680 (1994). Instead, we presume that the sentencing

court considered the mitigating evidence, absent some indication to the contrary. People v. Allen,

344 Ill. App. 3d 949, 959 (2003). Moreover, we must not substitute our judgment for that of the

trial court merely because we would have weighed the mitigating factors differently. Alexander,

239 Ill. 2d at 213.

¶ 55 Defendant was convicted of attempt first-degree murder, a Class X felony punishable by a

sentence of 6 to 30 years. 730 ILCS 5/5-4.5-25(a) (West 2016). Because the court found that

defendant personally discharged a firearm that proximately caused the victim great bodily harm,

it was required to impose a firearm enhancement of imprisonment for an additional 25 years to

life. 720 ILCS 5/8-4(c)(1)(D) (West 2016). Defendant was also convicted of armed robbery,

which carried a sentence of 6 to 30 years of imprisonment. 730 ILCS 5/5-4.5-25(a) (West 2016).

Because the trial court found that defendant personally discharged a firearm that proximately

caused the victim great bodily harm, this charge was also subject to a firearm enhancement of

imprisonment for an additional 25 years to life. 720 ILCS 5/18-2(a)(4), (b) (West 2016).

- 21 - 2021 IL App (2d) 200098-U

Additionally, defendant was convicted of armed violence, which carries a sentence of

imprisonment for 25 years to 40 years. 720 ILCS 5/33A-3(b-10) (West 2016). Finally, defendant

was convicted of unlawful possession or use of a firearm by a felon, a Class 3 felony carrying a

sentence of two to ten years. 720 ILCS 5/24-1.1(e) (West 2016). Because the court found that

defendant’s conduct caused severe bodily injury, the sentence for attempt first-degree murder was

required to be served consecutive to the other sentences. 730 ILCS 5/5-8-4(d)(1) (West 2016).

¶ 56 The trial court ultimately sentenced defendant to 45 years of imprisonment for attempt

first-degree murder, with that sentence running consecutive to concurrent prison terms of 35 years

for armed violence, 33 years for armed robbery, and 5 years for unlawful possession or use of a

weapon by a felon, for a cumulative term of 80 years of imprisonment. Each of these sentences

was within the statutory limits for the offenses.

¶ 57 Defendant’s argument that the trial court should have sentenced him to the minimum total

sentence he could have received—62 years—because this was his first “significant offense” and

because Edmonds suffered only non-life-threatening injuries is unavailing. Defendant’s counsel

argued these mitigating factors during sentencing. Counsel claimed that defendant’s conduct was

unlikely to recur because defendant acted under a strong provocation after finding out that

Edmonds married someone else. Counsel further claimed that, after defendant’s 2000 felony

conviction for unlawful possession of a controlled substance, defendant “led a law-abiding life for

a substantial period of time.” Counsel also noted that the bullet did not penetrate Edmonds’s

skull, and it was removed with relative ease. The trial court considered these arguments and

determined that, while defendant’s conduct was unlikely to recur, and while defendant did not

have a lengthy criminal history, his conduct was “reprehensible” and “one of the most violent

attacks I’ve ever seen.” The trial court noted that defendant had time to contemplate his actions

- 22 - 2021 IL App (2d) 200098-U

during the drive from East Chicago, Indiana to Sugar Grove, Illinois but that he nevertheless

carried out the attack. The court further explained that Edmonds “did not walk away from this”

and “should be dead,” considering that she “had a bullet literally enter her head.” Defendant, in

effect, argues that the trial court should have weighed the mitigating factors he presented

differently. But the trial court considered these mitigating factors and gave more weight to the

severity of the crime and the need to deter others from committing similar acts. This was proper.

People v. Charles, 2018 IL App (1st) 153625, ¶ 45 (“The most important sentencing factor is the

seriousness of the offense, and the court need not give greater weight to rehabilitation or mitigating

factors than to the severity of the offense.”). We see no abuse of discretion in the trial court’s

assessment of the proper sentence to impose. Accordingly, we will not disturb the trial court’s

imposition of an aggregate 80-year sentence.

¶ 58 III. CONCLUSION

¶ 59 For the reasons stated, we affirm the judgment of the circuit court of Kane County.

¶ 60 Affirmed.

- 23 -