People v. Kelly

2020 IL App (4th) 180110-U

Opinion

2020 IL App (4th) 180110-U NOTICE FILED This order was filed under Supreme NO. 4-18-0110 April 24, 2020 Court Rule 23 and may not be cited Carla Bender as precedent by any party except in IN THE APPELLATE COURT 4th District Appellate the limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County DARRYL KELLY, ) No. 17CF122 Defendant-Appellant. ) ) Honorable ) Jennifer H. Bauknecht, ) Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court. Justices Knecht and DeArmond concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed, concluding the State met its burden of proving defendant guilty beyond a reasonable doubt of aggravated battery of a child.

¶2 In April 2017, the State charged defendant, Darryl Kelly, with one count of

aggravated battery and two counts of domestic battery. Following a December 2017 bench trial,

the trial court found defendant guilty. The court sentenced defendant to two years of probation

with a suspended 180-day term of imprisonment.

¶3 Defendant appeals, arguing the State failed to prove him guilty beyond a

reasonable doubt of aggravated battery. For the following reasons, we affirm the trial court’s

judgment.

¶4 I. BACKGROUND ¶5 In April 2017, the State charged defendant with one count of aggravated battery

(720 ILCS 5/12-3.05(b)(2) (West 2016)), and two counts of domestic battery (id. §§ 12-3.2(a)(1),

(2). In December 2017, the matter proceeded to a bench trial where the court heard the

following evidence.

¶6 S.L. testified she was the mother of six children, including D.L. who was born on

November 11, 2016. Defendant was the father of two of S.L.’s children. In March 2017, S.L.

lived with defendant in Pontiac, Illinois. In April 2017, S.L., defendant, and two children were

in a vehicle on their way home, and S.L. and defendant began arguing. When they arrived at

home, S.L. took the children inside, then went back outside to continue arguing with defendant.

S.L. testified she and defendant were both angry and she pushed over defendant’s motorized

bicycle.

¶7 S.L. reentered the home and went to the living room where the children watched

cartoons. According to S.L., she heard defendant enter the home, but he did not say anything.

S.L. testified she held D.L. in her arms and knelt to remove her three-year-old daughter’s coat.

S.L. held D.L. on her shoulder as she stood up. S.L. testified she now believed her purse was

thrown at her. At the time, S.L. believed defendant punched her, so she contacted the police.

S.L. testified she was struck on her back and neck in the same area where she held D.L.

¶8 S.L. was very upset and immediately ran outside and called the police. The State

admitted into evidence a statement written by S.L. describing the incident. In part, the statement

read “[defendant] came into the house while my back was turned and close[-]hand punched me

in the back right side of my neck also hitting my infant son.” S.L. testified she could not say

with certainty D.L. was struck because her back was turned, but the incident caused D.L. to cry.

The State also admitted into evidence a recording of the 911 call. S.L. acknowledged she was

-2- very upset and sounded as though she was going to cry. The recording indicated D.L. had a

reddened spot on his head.

¶9 S.L. acknowledged she did not see who or what hit her because her back was

turned. She further testified she could not see the back of her neck, so she could not say she

suffered injury by sight. According to S.L., she assumed D.L. had been hit but she did not know

that for sure. S.L. reiterated she was hit in the same area where D.L.’s head rested. Although

she had no large bruises, S.L. testified it hurt when she was hit. According to S.L., her purse

contained her cell phone and wallet and was heavy enough to hurt if struck as described.

¶ 10 Pontiac police officer Derek Schumm testified he responded to a domestic report

regarding defendant and S.L. When Schumm arrived on the scene, S.L. was upset and holding a

child less than a year old. Schumm described S.L. as flustered, crying at times, and irritated.

S.L. told Schumm she got into an argument with defendant outside the apartment, she knocked

defendant’s bicycle over on her way back inside, defendant followed her, and punched her in the

back of the neck with a closed fist, striking D.L. According to Schumm, S.L. did not seem at all

uncertain that she had been punched and D.L. was struck. Schumm testified he observed light

marks on the back of S.L.’s neck and on D.L.’s head. Schumm described the marks as redness

and light bruising.

¶ 11 Following closing arguments, the trial court found S.L.’s testimony incredible and

found it evident she was “back-pedaling on her story.” The court found credible the evidence

that was not subject to change, including the 911 call and S.L.’s written statement, which were

corroborated by Schumm’s testimony. The circumstantial evidence was strong that defendant

struck S.L. where S.L. testified defendant was in the house and accounted for the whereabouts of

herself and the two children. The court further concluded the State established D.L. was under

-3- the age of 13. The court reiterated it found S.L.’s testimony about bodily harm incredible and

credited Schumm’s testimony—corroborated by the 911 call and written statement—that D.L.

and S.L. both had lights marks. The court concluded the State met its burden of proving

defendant guilty beyond a reasonable doubt and found him guilty on all three counts.

¶ 12 In January 2018, the trial court sentenced defendant to a period of 24 months’

probation and 180 days’ imprisonment in the Livingston County jail, with credit for 9 days

served and the balance stayed pending compliance.

¶ 13 This appeal followed.

¶ 14 II. ANALYSIS

¶ 15 On appeal, defendant argues the State failed to prove him guilty beyond a

reasonable doubt of aggravated battery. Specifically, defendant argues (1) the evidence did not

establish he knew his act would result in D.L. being struck and (2) the transferred intent doctrine

did not apply.

¶ 16 A. Sufficiency of the Evidence

¶ 17 Defendant argues the State failed to prove that defendant knew S.L. was holding

D.L. or that his act would result in D.L. being struck. Specifically, defendant argues there was

no direct or circumstantial evidence proving he knew S.L. held D.L. at the time she was struck.

¶ 18 When considering whether sufficient evidence supported a conviction, “our

function is not to retry the defendant.” People v. Sutherland, 223 Ill. 2d 187, 242, 860 N.E.2d

178, 217 (2006). Instead, we determine “ ‘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, 478 N.E.2d 267, 277 (1985) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

-4- We allow all reasonable inferences in favor of the State. People v. Beauchamp, 241 Ill. 2d 1, 8,

944 N.E.2d 319, 323 (2011). The finder of fact determines the credibility of witnesses and that

finding is entitled to great weight. People v. Smith, 185 Ill. 2d 532, 542, 708 N.E.2d 365, 370

(1999). We reverse only where the evidence is so unreasonable, improbable, or unsatisfactory

that it raises a reasonable doubt as to the defendant’s guilt. People v. Evans, 209 Ill. 2d 194, 209,

808 N.E.2d 939, 947 (2004).

¶ 19 In relevant part, section 12-3.05 of the Criminal Code of 2012 provides:

“A person who is at least 18 years of age commits aggravated

battery when, in committing a battery, he or she knowingly and

without legal justification by any means:

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(2) causes bodily harm or disability or disfigurement to any child

under the age of 13 years or to any person with a severe or

profound intellectual disability.” 720 ILCS 5/12-3.05(b)(2) (West

2016).

To sustain a conviction for aggravated battery of a child, the State must prove the following

elements: (1) the defendant knowingly caused bodily harm to the victim, (2) when the defendant

did so, he was of the age of 18 years or older, and (3) when the defendant did so, the victim was

under 13 years. Illinois Pattern Jury Instructions, Criminal, No. 11.26 (4th ed. 2000).

¶ 20 As noted above, defendant argues there is insufficient evidence to prove he

knowingly caused bodily harm to a child. Put another way, defendant argues the statute requires

that the State proved defendant caused bodily harm to a victim he knew to be a child.

-5- ¶ 21 To resolve this argument, we look to another provision of the aggravated battery

statute. “Before 2006, a person committed aggravated battery if he ‘[k]nowingly and without

legal justification and by any means cause[d] bodily harm to an individual of 60 years of age or

older.’ 720 ILCS 5/12-4(b)(10) (West 2004). This earlier version of the statute was interpreted

to mean that, as long as the victim was 60 years of age or older and the defendant committed a

battery, the defendant was guilty of aggravated battery.” People v. Jasoni, 2012 IL App (2d)

110217, ¶ 14, 974 N.E.2d 902. However, the statute was subsequently amended to provide “that

a person commits aggravated battery when, in committing a battery, the person ‘[k]nows the

individual harmed to be an individual of 60 years of age or older.’ ” Id. (quoting 720 ILCS 5/12-

4(b)(10) (West 2008)). The Jasoni court noted that the amendment inserted the word “knows”

directly before the phrase “the individual battered to be a person 60 years of age or older,” which

made clear the word “knows” referred to the victim’s age. Id. ¶ 16. In the prior version, “the

adverb ‘knowingly’ was located before the verb ‘causes’ and therefore modified ‘causes bodily

harm.’ ” Id. Accordingly, the court held that the amended statute required a defendant to know

the victim was 60 years of age or older before an aggravated battery conviction could stand. Id.

¶ 18.

¶ 22 In this case, the aggravated battery of a child provision is more similar to the pre-

amendment version of the aggravated battery of a person over the age of 60 statute. Here, the

word “knowingly” comes before the verb “causes” and therefore modifies “causes bodily harm.”

The legislature clearly could have amended this statutory language to provide that a person

commits aggravated battery when, in committing a battery, the person knows the individual

harmed to be an individual of 13 years of age or younger, as it amended the aggravated battery of

a person 60 years of age or older statute. See People v. Harris, 2017 IL App (1st) 140777, ¶ 45,

-6- 74 N.E.3d 1 (finding that the legislature could have amended the aggravated vehicular hijacking

statute to clarify a knowledge requirement). However, the legislature has not seen fit to so

amend the aggravated battery of a child statute. Therefore, we conclude the aggravated battery

of a child statute does not require that a defendant have specific knowledge of the victim’s age to

be held liable for aggravated battery.

¶ 23 We note that, if the statute required specific knowledge of the victim’s age, the

State met its burden in proving defendant guilty of aggravated battery of a child. Defendant

argues there was no evidence that he had knowledge that S.L. held D.L. at the time he struck her.

However, this ignores S.L.’s testimony that D.L.’s head rested on her shoulder in the exact area

she was struck. The trial court, as the finder of fact, was in the best position to observe the

witnesses’ demeanor and judge their credibility. Smith, 185 Ill. 2d at 542. Although the report

of proceedings contains descriptions of the witnesses’ gestures made during testimony, it is not

the same as observing a witness in person. A rational trier of fact could have concluded from

S.L.’s testimony that defendant knew he was striking a child when he struck S.L. in the “exact

area” where D.L.’s head rested. Based on the record before us, we cannot say the evidence was

so unsatisfactory or improbable that it raises doubt as to defendant’s guilt. Evans, 209 Ill. 2d at

209. Nonetheless, we turn now to the doctrine of transferred intent.

¶ 24 B. Transferred Intent

¶ 25 Defendant argues the doctrine of transferred intent does not apply in this case

because (1) aggravated battery of a child has an additional, specific mental state than simple

battery, (2) transferred intent does not transfer across different offenses, and (3) the result was

not natural and probable. Defendant’s argument that the aggravated battery of a child statute has

-7- a specific intent requirement is closely related to the argument we rejected above. However, we

turn now to further address defendant’s claims.

¶ 26 Illinois courts have consistently recognized the doctrine of transferred intent holds

one liable for the natural and probable consequences of an unlawful act even though they may

not have been intended. People v. Hickman, 9 Ill. App. 3d 39, 44, 291 N.E.2d 523, 527 (1973).

“[W]here one in the commission of a wrongful act commits another wrong not meant by him, or

where in the execution of an intent to do wrong, an unintended act resulting in a wrong ensued as

a natural and probable consequence, the one acting with wrongful intent is responsible for the

unintended wrong.” Id. Where a defendant intends to commit a simple battery against another,

he or she remains liable for the unintended consequences that are the natural and probable

consequence of the act. People v. Dorn, 378 Ill. App. 3d 693, 698, 883 N.E.2d 584, 588 (2008).

¶ 27 Defendant contends transferred intent does not apply here because aggravated

battery of a child requires the defendant have the specific intent to cause bodily harm to a person

he knew to be a child. We already concluded the statute does not require the defendant have

knowledge that the victim is a child. We similarly conclude the statute does not require such

specific intent.

¶ 28 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). A person

commits domestic battery if he or she knowingly without legal justification by any means causes

bodily harm to any family or household member. Id. § 12-3.2(a)(1). A person commits

aggravated battery of a child if he or she knowingly without legal justification by any means

causes bodily harm to any child under the age of 13. Id. § 12-3.05(b). Defendant was charged

with having acted knowingly. “We have previously held, in the context of the aggravated battery

-8- statute, that when a statute is defined in terms of a particular result, a person is said to act

knowingly when he is consciously aware that his conduct is practically certain to cause the

result.” People v. Psichalinos, 229 Ill. App. 3d 1058, 1067, 594 N.E.2d 1374, 1381 (1992).

¶ 29 Defendant argues the requirement that a defendant acts knowingly applies both to

“bodily harm” and to “battering a child.” However, the only case defendant cites is Psichalinos,

which he argues was wrongly decided. As noted above, the Psichalinos court found that when a

statute is defined in terms of a particular result, a defendant acts knowingly when he is

consciously aware that his conduct is practically certain to cause the result. Id. The court then

concluded that the defendant acted knowingly when he closed his hand into a fist and swung at

Lena Alsen. Id. at 1068. It was not unreasonable for the trial court to conclude the defendant

was consciously aware that his conduct was practically certain to cause a particular result. Id.

However, the defendant missed and struck a child. Id. “The result which his conduct was

practically certain to cause, great bodily harm to Lena Alsen, became great bodily harm to” the

child. Id. The court concluded the doctrine of transferred intent applied under these

circumstances and the State proved defendant acted knowingly beyond a reasonable doubt. Id.

¶ 30 We do not think Psichalinos was wrongly decided. Defendant asserts the result of

his actions in this case included that the victim was a child. However, adopting that reasoning

would essentially eliminate the doctrine of transferred intent. The statute requires proof that

defendant knowingly caused bodily harm. That is, defendant must be consciously aware that his

conduct was practically certain to cause bodily harm. Whether defendant punched S.L. with a

closed fist or struck her with her purse, it is not unreasonable to conclude that defendant was

consciously aware that his actions were practically certain to cause bodily harm. Although

defendant may not have intended to hit D.L., we conclude he acted with the intent to cause

-9- bodily harm and is therefore “responsible for the unintended wrong.” Hickman, 9 Ill. App. 3d at

44.

¶ 31 Defendant argues this court should reject the State’s reliance on Dorn, 378 Ill.

App. 3d 693, and instead rely on People v. Lovelace, 251 Ill. App. 3d 607, 622 N.E.2d 859

(1993). Defendant asserts this court should disregard Dorn because the issue in that case was

whether the proper jury instruction was given, and not whether the evidence established the

mens rea of the crime beyond a reasonable doubt. We agree. However, Lovelace also addressed

whether the proper jury instruction was given, and not whether the evidence established the

mens rea of the crime beyond a reasonable doubt. Accordingly, we decline to address either case

as neither discusses the issue raised in this case.

¶ 32 Defendant also argues transferred intent only applies where the unintended wrong

is the “necessary and probable” consequence of an intended wrong. Defendant asserts striking

D.L. was not a necessary and probable consequence of striking S.L. because he did not foresee

D.L. being struck because he was unaware that S.L. held D.L. However, the evidence showed

defendant, S.L., and the two children had just arrived home when the incident occurred.

Defendant knew S.L. took both children into the apartment before she went back outside to

continue their argument. S.L. testified she went back inside and bent over to remove her

daughter’s coat while holding D.L. The testimony established D.L. was an infant and S.L. held

him over her shoulder. It was not unreasonable for the trier of fact to conclude defendant was

consciously aware that his conduct of striking S.L. while she held the infant was likely to cause

bodily harm to D.L. Indeed, it was entirely foreseeable that S.L. would settle the children,

including removing the infant from a car seat, upon returning to the home. Moreover, defendant

- 10 - again ignores the testimony that D.L.’s head rested in the “exact spot” defendant struck S.L. A

necessary and probable consequence of defendant’s action was bodily harm to D.L.

¶ 33 Finally, defendant asserts transferred intent does not transfer across different

offenses. However, the transferred intent doctrine applies to different offenses so long as they

have the same mental state. People v. Varnell, 54 Ill. App. 3d 824, 828, 370 N.E.2d 145, 147

(1977) (affirming conviction for aggravated battery under transferred intent where the defendant

intended mere assault by firing a gun to frighten a crowd); People v. Isunza, 396 Ill. App. 3d

127, 132-33, 917 N.E.2d 1079, 1085 (2009) (affirming conviction for aggravated battery where

the defendant only intended to commit criminal damage to property by hitting car window with

bat); Psichalinos, 229 Ill. App. 3d at 1067 (holding the defendant had the requisite mental state

as to the actual victim where the defendant had the requisite mental state as to the intended

victim).

¶ 34 For the foregoing reasons, we conclude the State proved defendant guilty of

aggravated battery of a child beyond a reasonable doubt, where the doctrine of transferred intent

established defendant knowingly struck S.L., was consciously aware his action was practically

certain to result in bodily harm, and bodily harm to D.L. was a necessary and probable result of

defendant’s action. Accordingly, we affirm the judgment of the trial court.

¶ 35 III. CONCLUSION

¶ 36 For the reasons stated, we affirm the trial court’s judgment.

¶ 37 Affirmed.

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