People v. Marcus

2024 IL App (2d) 240415-U

• Court: Appellate Court of Illinois
• Decided: October 24, 2024
• Docket: 2-24-0415
• Status: Unpublished

Opinion

2024 IL App (2d) 240415-U No. 2-24-0415 Order filed October 24, 2024

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)(1). ______________________________________________________________________________

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. 23-CF-447 ) TRISCAL MARCUS, ) Honorable ) David Paul Kliment, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUTCHINSON delivered the judgment of the court. Justices Birkett and Mullen concurred in the judgment.

ORDER

¶1 Held: The trial court did not err when it granted the State’s petition for pretrial detention where the proffered evidence showed that defendant has repeatedly posed a risk to those with which he resides.

¶2 The defendant, Triscal Marcus, was charged with one count of aggravated criminal sexual

abuse (720 ILCS 5/11-1.60(c)(1)(ii) (West 2022), and one count of unlawful restraint (720 ILCS

5/10-3) (West 2022). The circuit court of Kane County granted the State’s verified petition to deny

defendant’s pretrial release pursuant to section 110-6.1 of the Code of Criminal Procedure of 1963 2024 IL App (2d) 240415-U

(Code) (725 ILCS 5/110-6.1 (West 2022)). Defendant appeals following the denial of his motion

for relief filed pursuant to Illinois Supreme Court Rule 604(h)(2). We affirm.

¶3 BACKGROUND

¶4 On April 19, 2024, the trial court held a hearing on the State’s verified petition to deny

defendant’s pretrial release pursuant to section 110-6.1 of the Code. (725 ILCS 5/110-6.1 (West

2022)). The State first proffered People’s Exhibit 1, a copy of the North Aurora police synopsis,

that read as follows:

“During a forensic interview on 7/7/2022, fifteen-year-old N.M. disclosed that her

cousin’s boyfriend, [defendant], put his hand under her shirt and squeezed her boobs while

they were in the basement. N.M. explained that her cousin and [defendant] were living with

her family, but were kicked out after a stabbing incident. [Defendant] came into the room

wearing only a towel while N.M. was watching videos under the bed covers. [Defendant]

pulled off the covers, reached under her shirt and squeezed her boobs. N.M. tried to make

noise to wake her brother who was sleeping next to her. [Defendant] let go of N.M. who

got back under the covers. [Defendant] told her that this was a secret between them and

she should not tell anyone. On another occasion, [defendant] took N.M. into his room and

tried to close the door while N.M. kept telling him no. He asked her if she had a boyfriend

and if she had already done it with him. She stated she was able to get away from him.”

The State next proffered People’s Exhibit 2, a North Aurora police synopsis detailing a June 11,

2022, domestic battery incident between defendant and D.A. (Kane County Case No. 22-DV-349),

“Ofc D Parr *** was called to 216 B Linn Ct in reference to a domestic battery that

had already occurred. Upon arrival I was directed to the victim in this case, [D.A.], in the

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kitchen of the home, by the victim’s aunt. The possible offender, live-in boyfriend, and

father of her child, [defendant] *** [were] also present in the kitchen. Due to this, [D.A.]

was asked to walk outside so that I could speak to her. Once outside, I noted that [D.A.]

had a swollen black and blue left eye. Once [D.A.] pulled her mask down, I also noted that

her right side of her chin was blue and purple. I asked [D.A.] how she got the injuries, and

she stated that nothing happened. I told her I did not believe her and she stated to me that

it was an accident, and once again I told her I didn’t believe her, and asked if she wanted

my help to which she replied no she did not.

I contacted Det K Lohrstorfer in an attempt to further speak to [D.A.]. Det

Lohrstorfer arrived on scene and spoke to [D.A.]. [D.A.] told Det Lohrstorfer that she was

trying to keep [defendant] from going outside, but he’s strong. [D.A.] also stated that

[defendant] did not do it on purpose, but his elbow hit her eye when they were in the

bedroom. [D.A.] was asked by Det Lohrstorfer about her chin, and she stated that she did

that to herself with some stuff in her room. [D.A.] then stated that she didn’t know when

her chin injury happened, and that [defendant’s] elbow may of hit her chin as well and that

she had a hard time remembering. Det Lohrstorfer’s conversation with [D.A.] was audio

and video recorded at this time on Det Lohrstorfer’s work cell phone.

I then went into the home and spoke to [defendant]. I asked [defendant] what took

place and he told me that [D.A] had accused him of cheating on her and she began to bang

around the room and threw herself down, hitting a table. I told [defendant] that I did not

believe him, and he stated that while [D.A.] was banging around, he hit her in the face with

the back of his open hand. I told [defendant] that the bruise on her eye and chin was not

from one backhand and he kept with his story and denied hitting her any further.”

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The State also proffered that defendant had a pending DUI case for which he failed to appear on

August 25, 2022. A warrant for defendant’s arrest had been outstanding since that date.

¶5 Defendant’s counsel argued that defendant no longer resided with N.M. and, therefore,

could not pose a danger to her. At the time of the hearing, defendant was residing in North Aurora

with D.A., his wife. He further argued that two years had passed since the alleged incidents and

defendant had not been arrested for any new crimes.

¶6 In granting the State’s petition to detain, the trial court found, in relevant part, as follows:

“I do find that the defendant poses a real and present threat to the safety of

specifically [D.A.] and the minor N.M. as well as anybody he appears to reside with.

I do note that both of these took place at the same location and I note that there was

an unrelated stabbing incident there as well.

I am in no way inferring that [defendant] is responsible for that but I am concerned

that there is additional serious violence that he is somehow connected with based on the

statement both in the synopsis and to counsel that that is why he moved out.

I note that at the time of both of these offenses he was residing with his now-wife,

[D.A.], and that they had a child at the time and that he preyed upon a child member of the

home by entering her room uninvited and touching her in sexual manner.

Given that his violent and assaultive behavior is directed towards the people he

resides with, I do not find that there are conditions of pretrial release that can mitigate the

real and present threat that this defendant poses to the people he lives with and I find that

there a no less-restrictive conditions that would avoid this real and present threat.”

The trial court also noted that it considered defendant’s failure to appear for the 2022 DUI charge

in granting the State’s petition to detain.

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¶7 On June 26, 2024, defendant filed a motion for relief. Following a hearing, the trial court

denied the motion. This appeal followed.

¶8 ANALYSIS

¶9 In Illinois, all persons charged with an offense are eligible for pretrial release. Id. §§ 110-

2(a), 110-6.1(e). Pretrial release is governed by article 110 of the Code as amended by the Act. Id.

§ 110-1 et seq. Under the Code, as amended, a defendant’s pretrial release may only be denied in

certain statutorily limited situations. Id. §§ 110-2(a), 110-6.1(e).

¶ 10 Upon filing a verified petition requesting denial of pretrial release, the State has the burden

to prove, by clear and convincing evidence, that: (1) the proof is evident or the presumption great

that the defendant has committed a qualifying offense (id. § 110-6.1(e)(1)); (2) the defendant’s

pretrial release poses a real and present threat to the safety of any person or persons or the

community (id. § 110-6.1(e)(2)); and (3) no condition or combination of conditions can mitigate

the real and present threat to the safety of any person or the community or prevent the defendant’s

willful flight from prosecution (id. § 110-6.1(e)(3)).

¶ 11 We review the trial court’s decision to deny pretrial release under a bifurcated standard.

People v. Trottier, 2023 IL App (2d) 230317, ¶ 13. Specifically, we review under the manifest-

weight-of-the-evidence standard the trial court’s factual findings as to dangerousness, flight risk,

and whether conditions of release could mitigate those risks. Id. A finding is against the manifest

weight of the evidence only where it is unreasonable or not based on the evidence presented. Id.

We review for an abuse of discretion the trial court’s ultimate determination regarding pretrial

release. Id. An abuse of discretion also occurs only when the trial court's determination is arbitrary,

fanciful, or unreasonable, or where no reasonable person would take the view adopted by the trial

court. Id.

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¶ 12 In this appeal, the defendant argues that the State did not show clear and convincing

evidence that (1) he poses a real and present threat to the safety of any person or the community;

and (2) any purported threat could not be mitigated with conditions of relief. “Evidence is clear

and convincing if it leaves no reasonable doubt in the mind of the trier of fact as to the truth of the

proposition in question.” Chaudhary v. Department of Human Services, 2023 IL 127712, ¶ 74.

¶ 13 As to his first argument, defendant avers that the State’s proffer does not show that he

presents and real and present danger. He argues that the police synopsis on the criminal sexual

abuse of N.M. suggests no force was used when allegedly squeezing N.M.’s breasts, nor was there

any threat of force. Additionally, defendant argues that there has been no contact between him and

N.M. for two years, therefore he cannot pose an real and present threat to N.M.

¶ 14 In making a determination of a defendant’s dangerousness, a trial court may consider,

among other things: (1) the nature and circumstances of any charged offense, including whether it

is a crime of violence or a sex crime, or involved a weapon; (2) the defendant’s characteristics and

history, including any criminal history indicative of violent, abusive, or assaultive behavior, and

any psychological history indicative of a violent, abusive, or assaultive nature, and the lack of any

such history; (3) the identity of the person believed to be at risk from the defendant and the nature

of the threat; (4) statements by the defendant and the circumstances of such statements; (5) the age

and physical condition of the defendant; (6) the age and physical condition of any victim or

complaining witness; (7) the defendant’s access to any weapon; (8) whether the defendant was on

probation, parole, or the like at the time of the charged offense or any other arrest or offense; and

(9) any other factors that have a reasonable bearing on the defendant’s propensity for violent,

abusive, or assaultive behavior, or the lack of such behavior. Id. § 110-6.1(g).

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¶ 15 The trial court was presented with ample evidence regarding several of the factors

enumerated above. People’s Exhibit 1 detailed that defendant used force to grab the minor N.M.’s

breasts, a sex offense. People’s Exhibit 1 further detailed that defendant restrained N.M. in a room

while making sexually charged comments. The identity of N.M. as the victim was well-established

by the evidence. Defendant was 32 years old at the time of the charged conduct while the victim

N.M. was, and still is, a minor. Finally, the trial court was presented with, and indeed considered,

evidence that defendant has a propensity for violent, abusive, or assaultive behavior. People’s

Exhibit 2 detailed a domestic violence incident in which defendant caused injuries to D.A. Indeed,

defendant admitted to police that he struck D.A.

¶ 16 Factual findings, such as a trial court’s determination that a defendant posed a real and

present threat to the safety of any person, are generally reviewed deferentially, and will not be

reversed unless they are against the manifest weight of the evidence. 1 See Indeck Energy Services,

Inc. v. DePodesta, 2021 IL 125733, ¶ 56. A finding is not against the manifest weight of the

evidence unless the “opposite conclusion is clearly evident.” Id. That standard is not met here. The

evidence supports the finding of defendant’s dangerousness to N.M. and D.A. under several of the

factors enumerated in section 110-6.1(g). See 725 ILCS 5/110-6.1(g) (West 2022). The trial

court’s determination was not against the manifest weight of the evidence.

1 Although there may be instances in which a trial court’s factual findings are reviewed de

novo because of the nature of the evidence presented (see Addison Insurance Co. v. Fay, 232 Ill.

2d 446, 453 (2009); but see Evans v. Cook County State’s Attorney, 2021 IL 125513, ¶ 38), neither

party contends that is the case here.

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¶ 17 The defendant’s final argument on appeal is that the trial court failed to adequately consider

alternatives to pretrial detention that could have mitigated the danger he poses. Under section 110-

6.1(g)(3) of the Code, an order for pretrial detention must be based on, among other things, clear

and convincing evidence that “no condition or combination of conditions” of pretrial release can

mitigate the real and present threat to safety posed by the defendant. Id. § 110-6.1(g). If the trial

court finds that the State proved a valid threat to someone’s safety or the community’s safety, it

must then determine what pretrial release conditions, “if any, will reasonably ensure the

appearance of a defendant as required or the safety of any other person or the community ***.”

Id. § 110-5(a). In making this determination, the trial court should consider: (1) the nature and

circumstances of the offense charged; (2) the weight of the evidence against the defendant; (3) the

history and characteristics of the defendant; (4) the nature and seriousness of the specific, real and

present threat to any person that would be posed by the defendant’s release; and (5) the risk that

the defendant will obstruct or attempt to obstruct the criminal justice process. Id. No single factor

is dispositive. Id. As with the finding of dangerousness, we review the trial court’s findings

regarding whether the imposition of conditions on a defendant’s pretrial release would mitigate

the safety risk posed by the defendant under the manifest weight of the evidence standard. Indeck

Energy Services, 2021 IL 125733, ¶ 56.

¶ 18 Here, the trial court considered the nature of the charged offenses and the strength of the

evidence that the defendant committed those offenses. The trial court considered defendant’s

unwillingness to adhere to conditions of release through his failure to appear in court for the 2022

DUI charge, leading to an outstanding warrant for his arrest. As discussed above, People’s Exhibits

1 and 2 established defendant’s history of sexual abuse and domestic violence against those with

which he shared a common residence. As the trial court’s findings were based on the specific,

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articulable facts of the evidence presented, we cannot conclude that its determination that no

pretrial release conditions could adequately protect N.M. and D.A.’s safety was against the

manifest weight of the evidence.

¶ 19 For all of these reasons, the trial court did not abuse its discretion by granting the State’s

motion for pretrial detention. The judgment of the circuit court of Kane County is affirmed.

¶ 20 Affirmed.

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