People v. Lee

2021 IL App (3d) 190074-U

Opinion

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).

2021 IL App (3d) 190074-U

Order filed July 22, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-19-0074 v. ) Circuit No. 17-CF-1105 ) RIVAUGHN G. LEE, ) Honorable ) Daniel L. Kennedy, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE DAUGHERITY delivered the judgment of the court. Justices Lytton and O’Brien concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: (1) The State proved beyond a reasonable doubt that defendant acted with the requisite intent to support his attempted first degree murder conviction, and (2) counsel was not ineffective for failing to argue defendant should have been sentenced for a Class 1 felony.

¶2 Defendant, Rivaughn G. Lee, appeals his conviction for attempted first degree murder,

arguing the State failed to prove the intent element of the charged offense beyond a reasonable

doubt, and counsel provided ineffective assistance by failing to argue defendant should be sentenced for attempted first degree murder as a Class 1 felony instead of a Class X felony. We

affirm.

¶3 I. BACKGROUND

¶4 The State charged defendant with attempted first degree murder (720 ILCS 5/8-4(a), 9-

1(a)(1) (West 2016)) as a Class X felony, aggravated criminal sexual assault (id. § 11-

1.30(a)(2)), criminal sexual assault (id. § 11-1.20(a)(1)), and aggravated battery (id. § 12-3(a)(2),

(a)(5), (h)).

¶5 The evidence at a bench trial established that, on the morning of May 29, 2017, defendant

and Athena Collier consumed alcohol together at defendant’s residence. When defendant’s

girlfriend, Barbara Thompson, arrived, defendant and Collier began to argue. Collier left the

living room and entered the kitchen.

¶6 Collier testified that, as the argument continued, defendant entered the kitchen and hit her

in the face. Collier grabbed a knife to defend herself and fled to the bathroom. While in the

bathroom, Collier overheard defendant say, “I am going to kill this bitch.” Defendant broke

down the bathroom door and began to choke Collier with one hand while repeatedly punching

her in the face with his other hand. As defendant choked and hit her, Collier lost consciousness.

¶7 Defendant dragged Collier into the living room and splashed water on her to revive her.

Collier testified that she awoke on her back with defendant on top of her, penetrating her vagina

with his penis. Defendant choked Collier, and Collier attempted to push defendant off of her.

Defendant once again punched Collier in the face. Collier saw a fork on the floor next to her,

grabbed it, and jabbed it in defendant’s face. Defendant continued to hit Collier until she lost

consciousness. Collier awoke in the hospital. A toxicology report prepared at the hospital

showed that Collier’s blood alcohol content (BAC) was 0.212.

2 ¶8 Thompson testified that defendant did not hit Collier before Collier retrieved the knife.

According to Thompson, Collier picked up the knife without any prompting, and the physical

altercation between Collier and defendant began after defendant tried to take the knife away from

Collier. Thompson denied that defendant shouted obscenities at Collier while she was in the

bathroom, or that defendant punched Collier during their scuffle in the bathroom. Thompson

affirmed that when the altercation moved from the bathroom to the living room, defendant was

on top of Collier, repeatedly punching her in the face and saying, “I will kill you” or “I should

kill you.” However, Thompson said defendant neither choked Collier nor had any sexual contact

with her.

¶9 Thompson called 911 after failing to pull defendant off of Collier. In her statement to law

enforcement, Thompson said that defendant also stood on the back of Collier’s neck and

stomped on her ribs and chest. At trial, Thompson denied making these statements.

¶ 10 Sergeant Maria Bautista of the Steger Police Department testified that she was dispatched

to defendant’s apartment. There, Bautista observed Collier lying in a pool of blood with

defendant leaning over Collier, shouting “wake up, wake up.” Collier seemed to regain

consciousness, and Bautista attempted to speak with her but could not understand what she was

saying. After an ambulance arrived to take Collier to the hospital, Bautista questioned defendant.

Defendant spoke in a slurred manner and swayed back and forth, such that he appeared to be

“highly intoxicated.” Bautista observed a nearly empty vodka bottle by defendant’s couch and

asked if defendant drank it. Defendant answered, “[Y]es, I had that and then some.” The record

contains no evidence of defendant’s BAC. Defendant told Bautista, “I am going to kill that bitch,

I hope she fucking dies.” Throughout their interaction, defendant repeated the phrase “I’m going

to kill that bitch” multiple times.

3 ¶ 11 Dr. Jane Lee, an expert in the field of emergency medicine, testified that she evaluated

Collier, who suffered an intercranial hemorrhage and facial fractures. Lee characterized Collier’s

injuries as “serious” and determined they “require[d] operative treatment.”

¶ 12 Kelly Krajnik of the Illinois State Police testified that she was a forensic scientist who

specialized in biology and DNA analysis. Krajnik analyzed the sexual assault kit conducted on

Collier. While most of the samples provided no DNA profile or a partial profile that was

unsuitable for comparison, Krajnik was able to exclude defendant as the contributing source of

the samples that were suitable for comparison.

¶ 13 At the trial’s conclusion, the court found defendant guilty of attempted first degree

murder and aggravated battery, but acquitted defendant of the aggravated criminal sexual assault

and criminal sexual assault counts.

¶ 14 During sentencing, the court admonished defendant that he was subject to a Class X

felony sentencing range of 6 to 30 years’ imprisonment. Defense counsel did not object. The

court sentenced defendant to 9½ years’ imprisonment. Defendant appeals.

¶ 15 II. ANALYSIS

¶ 16 A. Sufficiency of the Evidence

¶ 17 First, defendant argues the evidence was insufficient to prove beyond a reasonable doubt

that he acted with specific intent to kill Collier.

¶ 18 “A criminal conviction will not be set aside unless the evidence is so improbable or

unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.” People v. Collins, 106

Ill. 2d 237, 261 (1985). “ ‘[T]he 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.) Id. (quoting Jackson

4 v. Virginia, 443 U.S. 307, 319 (1979)). The trier of fact must “resolve conflicts in the testimony,

weigh the evidence, and draw reasonable inferences from the facts.” People v. Gray, 2017 IL

120958, ¶ 35. A reviewing court will not replace the trier of fact’s judgment with its own

regarding the weight of the evidence or witnesses’ credibility. Id. “A conviction will not be

reversed simply because the evidence is contradictory or because the defendant claims that a

witness was not credible.” Id. ¶ 36.

¶ 19 To commit the offense of attempted first degree murder, a defendant must have “the

criminal intent to kill.” People v. Williams, 165 Ill. 2d 51, 64 (1995); 720 ILCS 5/8-4(a), 9-

1(a)(1) (West 2016). Intent “can rarely be proved by direct evidence” because it is a state of

mind. Williams, 165 Ill. 2d at 64. The Illinois Supreme Court has recognized that “where intent is

not admitted by the defendant, it can be shown by surrounding circumstances [citation],

including the character of the assault and the nature and seriousness of the injury.” Id. The

question of a defendant’s intent is for the trier of fact ‘and *** will not be disturbed on review

unless the evidence is so improbable that there exists reasonable doubt as to the defendant’s

guilt.’ ” People v. Cosby, 305 Ill. App. 3d 211, 219 (1999) (quoting People v. Ybarra, 272 Ill.

App. 3d 1008, 1011 (1995)).

¶ 20 The record shows that defendant twice choked Collier, struck her in the head and face

repeatedly, stepped on her neck, and stomped on her ribs and chest. Additionally, defendant

stated that he was going to kill Collier multiple times, both as he beat her and during his

conversation with Bautista. Collier lost consciousness at least twice during the altercation, and

Lee described Collier’s injuries as “serious” and “requiring operative treatment.” Moreover,

while defendant showed some level of concern for Collier after the attack, that fact does not

negate the overwhelming evidence that he intended to kill Collier in the moment. See People v.

5 Schlott, 2019 IL App (3d) 160281, ¶¶ 39-40. Viewing this evidence in the light most favorable to

the State, a reasonable trier of fact could find that the State proved that defendant had the

requisite intent for attempted first degree murder. See Collins, 106 Ill. 2d at 261.

¶ 21 Defendant asserts that his level of intoxication prevented him from forming the requisite

intent. Nearly 20 years ago, the Illinois legislature amended the statute controlling intoxication

defenses as follows: “A person who is in an intoxicated or drugged condition is criminally

responsible for conduct unless such condition is involuntarily produced and deprives him of

substantial capacity either to appreciate the criminality of his conduct or to conform his conduct

to the requirements of the law.” 720 ILCS 5/6-3 (West 2018). In the wake of this change, several

reviewing courts held that “Illinois no longer recognized voluntary intoxication as an excuse for

criminal conduct.” People v. Jackson, 362 Ill. App. 3d 1196, 1201 (2006); see People v.

Rodgers, 335 Ill. App. 3d 429, 433 n.1 (2002); People v. Slabon, 2018 IL App (1st) 150149,

¶ 33. However, a defendant’s voluntary intoxication “may be relevant in the commission of

specific intent crimes, which ‘require proof of an additional special mental element.’ ” Slabon,

2018 IL App (1st) 150149, ¶ 33 (quoting People v. Robinson, 379 Ill. App. 3d 679, 684 (2008)).

¶ 22 Ultimately, “[c]ourts have long recognized that ‘where voluntary intoxication is so

extreme as to suspend entirely the power of reasoning,’ a defendant is incapable of forming a

specific intent ***.” Id. (quoting People v. Cunningham, 123 Ill. App. 2d 190, 209 (1970)); see

People v. Gutierrez, 239 Ill. App. 3d 536, 541 (1992) (“The intoxication must be so extreme as

to suspend all of the defendant’s powers of reason.” (Emphasis in original.)). Here, the evidence

shows that defendant’s intoxication did not rob him entirely of his reasoning powers, as he

managed to break down the bathroom door when Collier fled from him, he splashed water on

Collier’s face to revive her after he knocked her unconscious, and he managed to communicate

6 effectively with Bautista at the scene after the ambulance transported Collier. Accordingly,

defendant’s voluntary intoxication defense fails.

¶ 23 Defendant also contends that Collier’s level of intoxication affected her ability to

recollect the events in question. However, the court impliedly found Collier’s testimony that

defendant choked and punched her multiple times to be credible. A circuit court is in the best

position to make witness credibility determinations because it can observe witnesses’ conduct

and demeanor. People v. Deleon, 227 Ill. 2d 322, 332 (2008). Because a reasonable trier of fact

could accept Collier’s testimony regarding defendant’s battery of her as true beyond a reasonable

doubt, we will not disturb the court’s determination. See People v. Cunningham, 212 Ill. 2d 274,

280 (2004). For the foregoing reasons, the State proved defendant’s guilt of attempted first

degree murder beyond a reasonable doubt. See Collins, 106 Ill. 2d at 261.

¶ 24 B. Ineffective Assistance of Counsel

¶ 25 Second, defendant argues counsel provided ineffective assistance where he failed to

pursue a Class 1 felony sentence by arguing that the physical altercation fell under section 8-

4(c)(1)(E) of the Code.

¶ 26 To determine whether counsel provided effective assistance, we apply the two-pronged

test set forth in Strickland v. Washington, 466 U.S. 668, 684-85 (1984). People v. Veach, 2017 IL

120649, ¶ 29. To prevail on such a claim, “a defendant must demonstrate that counsel’s

performance was deficient and that the deficient performance prejudiced the defendant.” People

v. Domagala, 2013 IL 113688, ¶ 36. “[A] defendant must show that counsel’s performance was

objectively unreasonable under prevailing professional norms and that there is a ‘reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.’ ” Id. (quoting Strickland, 466 U.S. at 694). “A defendant must satisfy both

7 prongs of the Strickland test and a failure to satisfy any one of the prongs precludes a finding of

ineffectiveness.” People v. Simpson, 2015 IL 116512, ¶ 35. We review de novo whether

defendant received ineffective assistance of counsel. People v. Max, 2012 IL App (3d) 110385,

¶ 64.

¶ 27 Section 8-4(c)(1)(E) of the Code provides that a defendant found guilty of attempted first

degree murder may be sentenced as a Class 1 offender, rather than as a Class X offender, where

he proves by a preponderance of the evidence that he “was acting under a sudden and intense

passion resulting from serious provocation by the individual whom the defendant endeavored to

kill.” 720 ILCS 5/8-4(c)(1)(E) (West 2016). If sentenced as a Class 1 offense, defendant would

have faced a sentence range of 4 to 15 years’ imprisonment. 730 ILCS 5/5-4.5-30(a) (West

2016). Instead, as a Class X offense, defendant faced a sentence range of 6 to 30 years’

imprisonment. Id. § 5-4.5-25. Notably, defendant’s sentence of 9½ years’ imprisonment falls

within either range.

¶ 28 We find that counsel’s performance was not deficient, as section 8-4(c)(1)(E) of the Code

does not apply to defendant’s actions. Serious provocation is “conduct sufficient to excite an

intense passion in a reasonable person.” 720 ILCS 5/9-2(b) (West 2016). The serious

provocation standard is rooted in statutory language describing second degree murder. See id.

§ 9-2(a)(1); People v. Lauderdale, 2012 IL App (1st) 100939, ¶¶ 23-24. Recognized examples of

serious provocation include substantial injury or assault, illegal arrest, adultery with the

offender’s spouse, and mutual quarrel or combat. See People v. Garcia, 165 Ill. 2d 409, 429

(1995). While the instant case does not fall into any of those categories, it most closely resembles

a mutual quarrel or combat, which is “a fight or struggle which both parties enter willingly or

8 where two persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms.”

People v. Austin, 133 Ill. 2d 118, 125 (1989).

¶ 29 The altercation between defendant and Collier was not a mutual quarrel or combat, as

defendant instigated the physical nature of the fight, Collier demonstrated an unwillingness to

engage in a physical fight by hiding in the bathroom, and the altercation was not a fight upon

equal terms. See id. Because defendant did not resort to violence in response to serious

provocation, section 8-4(c)(1)(E) does not apply. Therefore, counsel did not provide deficient

performance by failing to raise such an argument, and defendant did not receive ineffective

assistance of counsel.

¶ 30 III. CONCLUSION

¶ 31 The judgment of the circuit court of Will County is affirmed.

¶ 32 Affirmed.