2020 IL App (2d) 190084-U No. 2-19-0084 Order filed November 6, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party 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. 17-CM-2623 ) THOMAS E. RUZECKI, ) Honorable ) Kathryn D. Karayannis, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court. Justices Jorgensen and Schostok concurred in the judgment.
ORDER
¶1 Held: The trial court did not commit procedural or evidentiary errors requiring reversal. The State produced sufficient evidence to find defendant guilty of domestic battery. The section of the statute under which defendant was charged and convicted is not unconstitutionally vague or overbroad as applied to him.
¶2 Following a jury trial, defendant, Thomas E. Ruzecki, was found not guilty of a first count
of domestic battery (bodily harm) (720 ILCS 5/12-3.2(a)(1) (West 2018), but guilty of a second
count of domestic battery (insulting or provoking contact) (720 ILCS 5/12-3.2(a)(2) (West 2018).
In this direct appeal of his conviction, defendant raises three issues. The first is whether the trial
court committed several procedural and evidentiary errors which require a reversal of his 2020 IL App (2d) 190084-U
conviction. The second is whether the State failed to prove defendant guilty beyond a reasonable
doubt. The third is whether the section 12-3.2(a)(2) (insulting or provoking contact) of the
Criminal Code of 2012 (Criminal Code) is unconstitutional as applied to him. We affirm.
¶3 I. BACKGROUND
¶4 The following factual recitation is compiled from the testimony and evidence presented at
trial. On September 14, 2017, defendant and his then live-in girlfriend, Heidi Dorsey (Dorsey),
were having dinner at their home in Carpentersville. During dinner they began arguing, and the
argument became physical. Sometime thereafter, defendant left their home to go to his sister’s
house. “Freaked out” and “upset” at the “huge fight,” Dorsey sent a text message to her adult
daughter, Kaitlyn, before going to bed. Kaitlyn responded to Dorsey’s text but did not receive any
further communication from Dorsey, despite sending her texts and calling her. Kaitlyn then called
the police and went to check on Dorsey.
¶5 When the police arrived at defendant and Dorsey’s home, Dorsey ignored their knocking
at the door for some time because she felt like she “was a part of the situation too.” However, she
eventually let the police in, and her daughter arrived a few minutes later. Dorsey was initially
unwilling to speak with the officers because she was nervous. However, she indicated that
defendant had hit her in the face and that “other stuff” had happened. She also allowed an officer
to take a photo of her face, to document a swollen eye and a laceration on her lip. The officers then
located defendant at his sister’s house, and he was arrested for domestic battery.
¶6 The next day, Dorsey filed a verified petition for an order of protection, averring that she
and defendant were arguing when defendant threw water in her face and pushed her, which caused
bruises on her arms and buttocks. She also averred that defendant punched her in the face, which
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broke her glasses and bruised her face. Finally, she averred that defendant stated that he wanted to
“smash her head in.” The emergency order lapsed on October 6, 2017.
¶7 A pre-trial conference was held on March 1, 2018, with both defense counsel and the State
answering ready. The trial court noted that the only pre-trial matter in the file was the State’s
motion to amend the complaint, filed in December 2017. The initial charges on the complaint read:
“Count 01: *** on or about 09/14/17, [defendant] committed the offense of
domestic battery which causes bodily harm *** in that defendant knowingly caused bodily
harm to Heidi Dorsey, a household member and girlfriend of the defendant, in that said
defendant, punched Heidi on the eye with a closed fist, causing swelling, bruising and an
abrasion.
***
“Count 02: *** on or about 09/14/17, [defendant] committed the offense of
domestic battery – make physical contact *** in that defendant, knowingly made
physical contact of an insulting and provokin [sic] nature with Heidi Dorsey, a household
member and girlfriend of said defendant, in that said defendant punched Heidi on the eye
with a closed fist, causing bruising, swelling and an abrasion.”
The State sought to amend the charges to read:
Count I: “On or about September 14, 2017, *** [defendant] knowingly without
legal justification made physical contact causing bodily harm to Heidi Dorsey, a family
or household member of the defendant, in that the defendant struck Heidi Dorsey on or
about the head and/or body”
And Count II:
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“On or about September 14, 2017, *** [defendant] knowingly without legal
justification made physical contact of an insulting or provoking nature with Heidi Dorey,
a family or household member of the defendant, in that the defendant struck Heisi Dorsey
on or about the head and/or body ***.”
Defense counsel objected to the motion, arguing that the amended language substantively changed
the charges, making them more generic and easier to prove. The court granted the motion over
counsel’s objection.
¶8 The trial court then addressed defendant’s motion in limine, which was filed that morning,
in which he requested that the defense be able to present evidence of other acts of domestic
violence between defendant and Dorsey. Because defense counsel filed the motion that day, the
matter was continued to allow the State time to respond.
¶9 Trial was scheduled to begin on March 6, 2017. However, Dorsey failed to appear, and the
State asked for leave to file a petition for adjudication of indirect criminal contempt and made an
oral motion to continue the trial. Defense counsel objected, arguing that the State did not comply
with section 114-4 of the Code of Criminal Procedure of 1963 (Code), which requires such motions
to be in writing, and that the State did not demonstrate good cause for the trial to be continued.
The trial court granted the State’s motion, continuing the case until May 2018, and required the
State to provide a written motion on the matter before noon that day. The record provides that the
State filed a written motion and affidavit.
¶ 10 On May 3, 2018, at the second pretrial conference, the trial court denied defendant’s motion
in limine to admit other acts of domestic violence between defendant and Dorsey “for the reasons
stated on the record.” There is no transcript of the pretrial conference in the record before us.
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¶ 11 Trial began on May 8, 2018. Before trial began, defense counsel presented a second motion
in limine to bar the State and its witnesses from referencing (1) any previous domestic violence
incidents between Dorsey and defendant and (2) the content of the text message Dorsey sent to
Kaitlyn. The State did not contest the motion but did note that the context of the text message
appeared in the petition for order of protection, which the State planned to introduce into evidence.
The State noted that it had “spoken with [defense counsel] about that. We do have an agreement
as to what portions will be redacted to insure [sic] that we do follow the law.” The court granted
the motion, stating, in relevant part, “[t]here has never been an order allowing [the State] to bring
in evidence of prior acts of domestic violence and so no one should be testifying about alleged
prior acts of domestic violence.” The trial began thereafter.
¶ 12 The State called Dorsey as its first witness. She testified generally as to the above facts.
Relevant to this appeal, the State also introduced the redacted petition for order of protection and
a series of photographs into evidence through Dorsey’s testimony. The photographs showed
bruises on Dorsey’s right arm and buttocks, which she attested that she took a few days after the
September 14 incident.
¶ 13 The State also called Kaitlyn, who testified as to receiving a text message from Dorsey and
calling the police. Finally, the State called the responding officer, Matthew Lipke, to testify. Lipke
generally testified to the above facts as well. The photograph of Dorsey’s face was introduced
through his testimony. During cross-examination, after discussing the injuries to Dorsey’s face,
the following exchange occurred:
“Q. Did she indicate to you that any parts of her body were injured?
A. No – well, she was – I’m sorry. No.
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Q. Did she indicate that she had any bruises on her arms or that her arms were
injured in any way?
A. She was referring to past incidents with different things.
MS. SEAMANN [DEFENSE COUNSEL]: Your Honor, we ask that the answer be
stricken.
THE COURT: You asked the question. That request is denied.
Q. On September 14, 2017, did Ms. Dorsey indicate to you that she had any
injuries to her arms?
A. I can’t answer that question with the way that you are – or, I can’t answer the
question the way you are asking it. She did reference other things but not from that night.
Q. On that night, did she indicate to you that she had any injuries to her arms from
incidents that occurred on September 14th?
A. That occurred from that night, no, she did not.”
Outside of the jury’s presence, the State requested that it be allowed to ask certain questions to
Lipke on redirect to clarify the above testimony, in light of the trial court’s order to not introduce
other acts of domestic violence between Dorsey and defendant. Over defense counsel’s objection,
the court allowed the State to ask two questions: (1) whether Dorsey told Lipke about an injury to
any other part of her body than her face or lip and (2) if yes, what part of her body did she indicate
was injured. The court denied the State’s request to ask who caused the injury to her finger.
¶ 14 On redirect examination, the State elicited testimony for the two questions immediately.
The State then proceeded to ask questions about Dorsey’s demeanor through the investigation, and
why, despite Dorsey’s evasiveness, Lipke continued to investigate. The State also asked Lipke
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about the injuries he observed on Dorsey’s face. The State then asked if Dorsey had told Lipke
who had hit her in the eye, and defense counsel objected. The trial court overruled the objection
and Lipke answered that Dorsey indicated that defendant had struck her in the face.
¶ 15 The State then rested. Defense counsel moved for a directed finding, which the trial court
denied. The defense recalled Lipke, who testified that defendant had fresh scratch marks on his
neck and a red mark on his torso when he was arrested. Photographs of defendant’s neck and torso
depicting the injuries were admitted into evidence. Defendant did not testify.
¶ 16 After closing arguments, the jury deliberated and found defendant not guilty of the first
count of domestic battery (bodily harm), and guilty of the second count of domestic battery
(insulting or provoking contact). On June 8, 2018, 31 days after the verdict, defendant filed a
motion for a new trial or to reconsider and vacate the finding of guilty. The trial court denied
defendant’s motion on December 28, 2018, “for the reasons stated on the record,” which was not
included in the record before us. The court sentenced defendant to 14 days in jail and one year of
conditional discharge. Defendant filed his notice of appeal on January 28, 2019.
¶ 17 II. ANALYSIS
¶ 18 Defendant’s first contention is that the trial court made seven serious procedural and
evidentiary errors throughout the pendency of the case that require reversal: (1) granting the
State’s motion to amend the complaint during the initial pretrial conference; (2) granting the
State’s motion to continue the trial; (3) admitting photographs of Dorsey’s bruised arm and
buttocks into evidence; (4) admitting the petition for order of protection into evidence; (5)
allowing the State to ask certain questions of Lipke in contravention of its earlier order; (6)
denying defendant’s request to introduce statements he made at the time of his arrest into
evidence; and (7) denying defendant’s first motion in limine to admit prior acts of domestic
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violence between defendant and Dorsey. Defendant argues that each of the errors impacted his
right to a fair trial and the only appropriate redress would be to reverse his conviction.
¶ 19 In response, the State first avers that defendant’s arguments with respect to all the errors
have been waived because his posttrial motion for a new trial was untimely filed 31 days after
the guilty verdict. The State recognizes that it proceeded in arguing against the untimely posttrial
motion, but we should honor the procedural default, given the untimely posttrial motion paired
with the inadequate record on appeal. The State also argues that none of the enumerated actions
of the trial court were error, but if any of the enumerated actions were in fact error, they were
harmless. Waiver aside, we agree with the State that the enumerated alleged errors were not
errors.
¶ 20 “In instances where individual errors committed by a trial court do not merit reversal
alone, the cumulative effect of the errors can deprive a defendant of a fair trial.” People v. Fultz,
2012 IL App (2d) 101101, ¶ 54. Where that is the case, due process and fundamental fairness
require that a defendant’s conviction be reversed and remanded for a new trial. Id. However, a
cumulative-error argument necessarily fails where none of the separate claims amount to a
reversible error and where no plain errors occur. People v. Jones, 269 Ill. App. 3d 797, 807
(1994). We address each of defendant’s claims of error in turn.
¶ 21 Defendant first argues that the trial court erred in amending the complaint during the
March 2017 pretrial conference. Defendant asserts that the amendment was a substantive,
material change that surprised him and thus created prejudice against him. A charging instrument
may be amended at any time, even on the day of trial, to correct a formal defect. 725 ILCS
5/111-5 (West 2018); People v. Alston, 302 Ill. App. 3d 207, 210 (1999). Amendments are
proper and permissible so long as the change is not material and does not alter the nature or
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elements of the offense originally charged. People v. Gray, 396 Ill. App. 3d 216, 223 (2009).
This is especially true where the defendant is not surprised or prejudiced by the change. Id. The
decision to allow an amendment to a charging instrument lies within the discretion of the trial
court and will not be disturbed absent an abuse of that discretion. People v. James, 337 Ill. App.
3d 532, 534 (2003).
¶ 22 Defendant cites People v. Betts, 78 Ill. App. 3d 200 (1979), for support that the
amendment in the instant case was substantive, because the amended language in the complaint
made the offense easier to prove. In Betts, the indictment was amended from the delivery of a
narcotic to the delivery of “not” a narcotic and similarly changed the statute referencing the
offense. 78 Ill. App. 3d at 201-02. The court held that because the amendment in the indictment
changed the offense charged, and the grand jury did not intend to charge the defendant with the
amended charge, the change was substantive. Id. at 203. Such is not the case here. Defendant
was charged with two counts of domestic battery, for bodily harm and insulting or provoking
contact (725 ILCS 5/12-3.2(a)(1); id. § 5/12-3.2(a)(2)). The amendment the State sought did not
change any of the elements of the charges, but rather the manner in which they were committed.
See People v. Ross, 395 Ill. App. 3d 660, 670 (2009) (holding amendments to an indictment that
change the manner in which the defendant committed the offense are formal, not substantive).
Because such a change is formal, the court did not err in granting the State’s motion to amend
the complaint.
¶ 23 Furthermore, we reject defendant’s argument that he was surprised and prejducied by the
amendment due to how close to trial the amendment was granted. Amending formal defects in a
charging document “is warranted especially where there is no resulting surprise or prejudice to
the defendant or where the record clearly shows that he was otherwise aware of the charge
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against him.” Ross, 395 Ill. App. 3d at 667. (Emphasis added.) The State’s motion to amend the
complaint was filed in December 2017 and granted in March 2018. The jury trial took place in
May 2018. Thus, the record demonstrates that defendant was aware of the charges the State
intended to bring against him five months before trial, making him aware of the charges he faced
and contradicting his argument that he was surprised by the amended charges.
¶ 24 We also note, peripherally, that in Betts, the court highlighted that part of the prejudicial
nature of the amendment was due to the type of charging instrument. 78 Ill. App. 3d at 204
(“Had the State chosen another means of commencing prosecution, a means which lacked the
independent review by a grand jury of the decision to prosecute [such as a complaint], the
amendment of the charge against Betts might not have been so prejudicial.”). Therefore, the
court did not abuse its discretion in allowing the State to amend the complaint.
¶ 25 Second, defendant argues that the trial court erred by granting the State’s motion to
continue the trial when Dorsey failed to appear on the initial March trial date, because the State
did not act diligently in presenting a written motion requesting the continuance and Dorsey’s
testimony would be cumulative of the State’s other witnesses. Again, we disagree.
¶ 26 Section 114-4 of the Code allows the State to move for a continuance when a material
witness is unavailable, and the prosecution will be prejudiced by the absence of her testimony, or
when the court finds that the interests of justice so require. 725 ILCS 5/114-4(c)(2); (d) (West
2018). When, as here, the motion to continue is made more than 30 days after arraignment, it
shall be written and supported by an affidavit. Id. § 114-4(a). Granting a motion to continue is
within the sound discretion of the trial court and will not be disturbed absent an abuse of that
discretion. People v. Dotson, 263 Ill. App 3d 571, 77 (1994). When exercising this discretion, the
court must determine whether the movant has acted diligently in obtaining the witnesses,
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whether the evidence would be material to the case, and whether, without the evidence, the trial
would be fair. Id. at 577-78.
¶ 27 Defendant’s argument that the State failed to act diligently in presenting him and the
court with a written motion for continuance is misguided because the State could not have filed a
written motion before Dorsey did not appear. Defendant’s argument is seemingly that, to ensure
he had a fair trial, the State should have predicted that Dorsey would not have appeared for court,
despite apparently being served with notice to appear, and should have drafted the required
motion and affidavit before the trial date. We will not impute the onus of omniscience onto the
State. The court granted the State’s oral motion on the condition that it file a written motion and
affidavit, pursuant to the Code, by noon that day. The record before us shows that a written
motion was filed accordingly.
¶ 28 We also disagree with defendant’s argument that Dorsey’s testimony would be
cumulative of the other witnesses. Dorsey was the victim in this case. Only Dorsey was able to
testify as to her feelings after the incident with defendant. Only Dorsey had the ability to
authenticate the photos of the bruises on her arm and buttocks. Only Dorsey could testify as to
the statements within the petition for order of protection. Such testimony is not cumulative, but
rather essential, to the State’s case. Contra People v. Jarnagan, 154 Ill. App. 3d 187, 195 (1987)
(holding that the trial court properly denied a motion to continue when a missing witness’s
testimony was cumulative of other witnesses). We therefore cannot say that the trial court abused
its discretion in granting the State’s motion for continuance.
¶ 29 Defendant’s third and fourth claims of error both deal with the admission of exhibits into
evidence, specifically photographs of Dorsey’s injuries and the petition for order of protection.
Defendant argues that the trial court improperly admitted the photographs of Heidi’s bruised arm
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and buttocks into evidence because the State failed to lay the proper foundation to do so. The
conditions for the admissibility of photographic evidence are its relevance and its accuracy.
People v. Glisson, 359 Ill. App. 3d 962, 970 (2005). Photos are admissible if they are identified
by a witness who has personal knowledge of the subject matter depicted by the photographs, and
the witness testifies as to the photograph’s fair and accurate representation of the subject matter
at the relevant time. People v. Martinez, 371 Ill. App. 3d 363, 380 (2007). Whether to admit a
photo into evidence lies within the sound discretion of the trial court and will not be disturbed
absent an abuse of that discretion. People v. Taylor, 2011 IL 110067, ¶ 27.
¶ 30 In the case at hand, Dorsey testified that she noticed injuries to her arm and buttocks
within a “couple days” of the incident with defendant. She stated that she took photographs of
the injuries and sent them to the State. When shown State’s exhibits 2-5, she recognized them as
the photos she took of herself and identified them as being both unaltered and a fair and accurate
depiction of the injuries she sustained. She also testified that she did not have the injuries before
the September 14 incident with defendant and noticed them when she got out of the shower in
the days that followed the incident.
¶ 31 In admitting the photos into evidence over defendant’s objection, the trial court stated
that the lack of specificity as to what day Dorsey took the photos of her injuries would go to the
weight the of the evidence as opposed to its admissibility. We agree with the court’s decision.
Although she could not recall the exact day she took the photos, Dorsey did recall that it was a
“couple days” after the incident with defendant. Dorsey’s testimony clearly demonstrates that
she had personal knowledge of her injuries, took the photos herself, and that the photos were
unaltered images of those injuries after the incident with defendant. Thus, her testimony was
sufficient for the photos to be admitted. Her lack of specificity as to the date of when the photos
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were taken could lead the jury to put less weight on the evidence but did not negate the
foundation laid to admit the photos into evidence. Defense counsel highlighted this fact in cross-
examination, when Dorsey admitted that she was not sure how she received the bruises because
she had been drinking that evening, but believed it was from “tussling” with defendant. Thus, the
court did not err in admitting the photos of Dorsey’s injuries into evidence.
¶ 32 Defendant also argues that the trial court erred by admitting the petition for order of
protection into evidence, averring that the State improperly led Dorsey in its questioning, failed
to lay proper foundation to introduce the petition into evidence as it was hearsay with no
applicable exception, and that the court improperly published the petition to the jury. In
response, the State maintains that the court did not err in admitting the petition into evidence as it
was a prior inconsistent statement and admissible as substantive evidence. We agree with the
State.
¶ 33 Section 115-10.1 of the Code allows for the use of a witness’s prior inconsistent
statements as substantive evidence when the statement is inconsistent with her testimony at trial,
the witness is subject to cross-examination concerning the statements, the statements describe an
event of which the witness had personal knowledge, and the statements have been written or
signed by the witness. 725 ILCS 5/115-10.1 (West 2018); People v. Benford, 349 Ill. App. 3d
721, 730 (2004). A witness’s prior testimony need not “directly contradict testimony given at
trial to be considered inconsistent within the meaning of that term set out in [the Code].” People
v. Flores, 128 Ill. 2d 66, 87 (1989). Inconsistencies in a witness’s trial testimony may be found in
her evasive answers, silence, or changes of position. Id. One of the policies underlying section
115-10.1 of the Code is to protect parties from turncoat witnesses who back away from a former
statement made under circumstances indicating that it was likely to be true. People v. Martin,
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408 Ill. App. 3d 891, 95 (2011). “The determination of whether a witness’ prior testimony is
inconsistent with [her] present testimony is left to the sound discretion of the trial court.” Flores,
128 Ill. 2d at 87-88.
¶ 34 Here, the record establishes that Dorsey’s trial testimony was inconsistent with her prior
statements in the petition of order of protection. At trial, Dorsey did not recall any specifics
about the incident, why they were arguing, and what happened between her and defendant. Her
testimony was evasive and equivocal; when asked about the incident, Dorsey merely identified
that she “[thought] it got physical.” In contrast, in the petition, Dorsey averred that defendant
threw water at her, pushed her, and punched her in the face. Dorsey also averred in the petition
that defendant stated he wanted to smash her head in. Dorsey’s trial testimony appears notably
evasive when taken in conjunction with her additional testimony that she was “not happy” about
appearing in court, did not want to testify against defendant, and had a pending criminal
contempt case for not appearing at the first trial date. In his reply brief, defendant asserts that
Dorsey’s trial testimony was not inconsistent with her statements in the petition because she was
“merely unable to recall some of the details” of the incident between her and defendant at trial
because she had been drinking. However, where a witness claims at trial to be unable to recollect
a matter, a former affirmation of the matter should be admitted as a contradiction. Flores, 128 Ill.
2d at 87. Thus, Dorsey’s evasive answers were sufficient to be considered inconsistent with her
previous statements under section 115-10.1. See Martin, 408 Ill. App. 3d at 895 (holding that a
statement written by an evasive victim was admissible under section 115-10.1).
¶ 35 The State also laid an adequate, although imperfect, foundation for the petition’s entry
into evidence. “Laying the foundation for the admission of a prior inconsistent statement as
substantive evidence under section 115-10.1 of the Code is essentially the same as laying the
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foundation to impeach a witness with [her] prior inconsistent statement.” People v. Edwards, 309
Ill. App. 3d 447, 457 (1999) (Steigmann J., specially concurring). Such foundation includes
asking the witness whether she made the inconsistent statement, directing the witness to the time,
place, and circumstances of the statement and its substance. Id. at 457-58. The witness must have
an opportunity to explain the inconsistency before the introduction of extrinsic evidence of the
statement to prevent unfair surprise and to give the witness an opportunity to explain any
inconsistency. Id. at 458.
¶ 36 Dorsey testified that on September 15, 2017, the day after the incident with defendant,
she went to the courthouse “early in the morning” to file a petition for order of protection, at the
encouragement of Lipke. She had help drafting the petition from unknown courthouse employees
but read the petition afterwards and verified its veracity by signing it under penalty of perjury
pursuant to section 1-109 of the Code of Civil Procedure. 735 ILCS 5/1-109 (West 2018).
Dorsey was given an opportunity to explain the inconsistencies, and she reiterated that she could
not recall the events of the incident. She was then confronted with the statements contained in
the petition and stated that on September 15, she did recall each of the events contained in the
petition. Although the State did not elicit the clearest testimony from Dorsey, we conclude that
the testimony the State elicited laid the necessary foundation to admit the petition into evidence.
With the foregoing established, and the deference we must give to the trial court’s findings, we
cannot say that the trial court abused its discretion in admitting the petition for an order of
protection.
¶ 37 Defendant argues that it was error for the trial court to publish the entire petition of order
of protection to the jury when Dorsey was impeached on only three inconsistent statements in the
document. To be sure, the petition does contain some extraneous information that was otherwise
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entered into evidence through the testimony of Dorsey, Katilyn, and Lipke. Although prior
consistent statements are generally inadmissible, a trial court does not need to make a
quantitative or mathematical analysis of whether a witness’s entire statement is inconsistent in
admitting it into evidence. People v. Lee, 335 Ill. App. 3d 659, 669 (2002) (citing People v.
Morales, 281 Ill. App. 3d 695, 701 (1996)). Here, the other statements merely provide context to
the incident and are not unduly prejudicial. Thus, the court did not err in publishing the petition
to the jury.
¶ 38 Fifth, defendant argues that the State committed prosecutorial misconduct when it asked
Lipke a question in direct contradiction to an earlier court order. Defendant’s argument again
fails. In order for prosecutorial misconduct to warrant reversal, the State’s actions must be
particularly egregious and constitute a material factor in the defendant’s conviction. People v.
Reyna, 289 Ill. App. 3d 835, 39 (1997). “Prosecutorial misconduct may occur when the State
ignores a trial court’s ruling and continues the line of questioning ruled on by the court.” Id.
Here, defendant argues that the State committed prosecutorial misconduct when it asked Lipke if
Dorsey indicated who had hit her in the face on September 14, 2017, because the court ruled
earlier that the question was irrelevant.
¶ 39 A simple reading of the record belies defendant’s argument. The trial court did not forbid
the State from asking who caused the injury to Dorsey’s face on September 14—the essence of
the charges against defendant—but rather who injured her finger in an earlier incident:
“THE COURT: [Defense counsel] asked a very open-ended question to this
officer. It was not specific in relation to dates that anything else occurred and [counsel]
did open the door. I do not want to get into anything else that happened except for I think
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it is fair to allow the State to ask the officer if the victim told him about an injury to some
other part of her body ***.
Otherwise, the Jury is left with the possible belief that this victim told [the officer]
that her arm was injured or her buttocks was injured on a prior occasion and it totally
defeats the position of the State that [those injuries] occurred on this date. And so without
them being able to clarify that she informed [the officer] of an injury that was something
different *** you have opened the door to something that they need to have an
opportunity to redirect him
So [State], what do you intend to ask in relation to the injury issue?
MS. SCHMIDT [ASSISTANT STATE’S ATTORNEY]: We intend to ask the
following three questions, Judge: On September 14, 2017, did Ms. Dorsey tell you about
an injury to any other part of her body than her face or lip?
What part of her body did she indicate the injury was to?
And did she indicate who caused that injury?
THE COURT: Okay, I don’t know why it is relevant who she says caused the
injury, and so, I am going to bar you from asking that question.
You can ask her if – you can ask the officer if she told him about any other injury,
and if it occurred, what part of her body it occurred to. But I am not going to allow you to
ask who caused the injury.”
Thus, when the State subsequently asked Lipke on redirect if Dorsey indicated who struck her in
the face on September 14, 2017, it was not in contradiction to the court’s order to not ask who
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caused the injury to her finger on an earlier date. We cannot say that the prosecutor engaged in
misconduct in asking Lipke who Dorsey indicated struck her in the face.
¶ 40 Finally, defendant argues that the trial court erred in denying his first motion in limine to
introduce evidence of previous instances of domestic violence between him and Dorsey and in not
allowing defense counsel to introduce statements made by defendant at the time of his arrest. The
record before us lacks the hearing of the first motion in limine and thus necessarily lacks the trial
court’s reasoning for denying the motion. Similarly, the only reference to introducing any of
defendant’s statements occurs in defendant’s posttrial motion and the record is devoid of the trial
court’s reasoning to deny that motion as well. These omissions in the record are in contravention
of Illinois Supreme Court Rule 323(a) (eff. July1, 2017) (“The report of proceedings shall include
all the evidence pertinent to the issues on appeal.”). We note that the appellant bears the burden of
providing a reviewing court with a complete record sufficient to support his claims of error, and
any doubts that arise from the incompleteness of the record will be resolved against the appellant.
People v. Lopez, 229 Ill. 2d 322, 344 (2008) (citing Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92
(1984)). Here, because we do not have the ability to assess the trial court’s reasoning for denying
the motion and the request, we cannot review them, and presume that the court did not err in so
doing. Given the foregoing, we cannot say that the court committed reversible errors in making its
procedural and evidentiary rulings.
¶ 41 Defendant’s next contention is that the State failed to prove him guilty of the second count
of domestic battery (insulting or provoking contact; 720 ILCS 5/12-3.2(a)(2)), beyond a reasonable
doubt. Where a defendant challenges the sufficiency of the evidence supporting his conviction, the
reviewing court’s inquiry is whether, after viewing the evidence in the light most favorable to the
State, any rational trier of fact could have found the essential elements of the crime beyond a
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reasonable doubt. People v. Collins, 214 Ill. 2d 206, 217 (2005). It is the province of the jury, as
the trier of fact, to assess the credibility of the witnesses and the weight to be given to their
testimony, resolve conflicts or inconsistencies in the evidence, and to draw reasonable inferences
from the evidence. People v. Olaska, 2017 IL App (2d) 150567, ¶ 142. A reviewing court will not
substitute its judgment for that of the trier of fact in those matters. Id. A criminal conviction will
be reversed only where the evidence is so unreasonable, improbable, or unsatisfactory as to justify
a reasonable doubt of the defendant’s guilt. Fultz, 2012 IL App (2d) 101101, ¶ 42.
¶ 42 To prove a defendant guilty of domestic battery under section 12-3.2(a)(2) of the Criminal
Code, the State must prove that defendant: (1) intentionally or knowingly, (2) without legal
justification, (3) made physical contact of an insulting or provoking nature, (4) with a household
member. People v. Taher, 329 Ill. App. 3d 1007, 1018 (2002). Defendant maintains that the State
did not meet its burden in proving the first three elements.
¶ 43 With respect to the first element, defendant argues that the State did not present any
evidence that he intended to make physical contact with Dorsey and that Dorsey testified that she
attacked him first. The record establishes that Dorsey stated she thought she “went after” defendant
first but was not sure; she stated several times that the two “tussled” or “got physical” with each
other. Dorsey further testified that the day after the incident she wrote in the petition that defendant
stated he was going to smash her head in. Lipke testified that at the scene of the incident, Dorsey
seemed nervous and stated defendant hit her in the face, which caused a laceration to her lip and a
swollen eye. Although it is true, as defendant argues, that the State did not produce any direct
evidence of defendant’s mindset at the time of the incident, his statement about smashing her head
in paired with the evidence that he struck her in the face, is circumstantial as to his intent. “A
mental state is seldom proved by direct evidence and must generally be inferred from the
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surrounding circumstances.” People v. Lissade, 403 Ill. App. 3d 609, 613 (2010). Taken together,
we cannot say that no rational trier of fact could determine that defendant did not act knowingly
when he struck Dorsey in the face.
¶ 44 With respect to the second element, defendant argues that he acted in self-defense, as
evidenced by the photos of the injuries he sustained during the incident, and the State did not
disprove that beyond a reasonable doubt. Self-defense is an affirmative defense to a domestic
battery charge (People v. Grayson, 321 Ill. App. 3d 397, 402 (2001)), and once a defendant raises
it, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in
self-defense. In re T.W., 381 Ill. App 3d 603, 612 (2008). The elements of self-defense are (1) that
unlawful force was threatened against a person; (2) that the person threatened was not the
aggressor; (3) that the danger of harm was imminent; (4) that the use of force was necessary; (5)
that the person threatened actually and subjectively believed a danger existed that required the use
of force applied; and (6) the beliefs of the person threatened were objectively reasonable. Id. If the
State negates any of these elements, the defendant’s self-defense claim fails. People v. Lee, 213 Ill
2d 218, 225 (2004).
¶ 45 Here, defendant presented photographic evidence of the injuries he sustained the night of
the incident: scratches on his neck and a red mark on his torso. Defendant relies on these photos
as well as Dorsey’s testimony that she may have went after defendant first to establish his self-
defense affirmative defense. However, Dorsey admitted she was not sure if she attacked defendant
first and mentioned throughout her testimony that the two had a huge argument, or tussled, or got
physical with each other. The petition indicated that defendant punched Dorsey in the face, which
was corroborated by the testimony of Lipke, and pushed her down which caused bruises on her
body, which was corroborated by the State’s photographic evidence. The petition also indicated
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that defendant threatened to smash her head in. Viewing the evidence in the light most favorable
to the State, as we must, we conclude that a rational trier of fact could have found beyond a
reasonable doubt that defendant did not act in self-defense, and may have mutually entered into
the incident. See People v. White, 293 Ill. App. 3d 335, 338 (1997) (the defense of self-defense is
not available when both parties fought willingly upon equal terms).
¶ 46 With respect to the third element, defendant argues that there was insufficient evidence to
establish that he made contact of an insulting or provoking nature because Dorsey did not call the
police herself and there was inconsistent evidence of whether defendant threw water on Dorsey,
as the petition stated he did. Although it is true that Dorsey did not call the police, there is no need
for a victim to contact the authorities to demonstrate that she was insulted or provoked. See People
v. Wrencher, 2011 IL App (4th) 080619, ¶ 55 (“[t]he victim does not have to testify he or she was
provoked; the trier of fact can make that inference from the victim’s reaction at the time”).
Defendant’s actions, in pushing her and punching her in the face, prompted Dorsey to text her
daughter because she was upset and freaked out at the huge fight she just had with defendant.
Contrary to defendant’s arguments both in his brief and at oral argument, a victim of domestic
battery has no additional requirement to contact the police immediately or otherwise “mitigate”
her damages to show that she was provoked.
¶ 47 Defendant further points out that contrary to Dorsey’s prior statements in the written
petition, neither she nor Lipke identified that Defendant had thrown water at Dorsey at trial.
Defendant argues that this omission, in part, demonstrates that Dorsey was so incredible, that no
reasonable juror could have found her story to be accurate. We disagree. Contrary to defendant’s
argument, it is not uncommon that victims of domestic battery “cannot recall” certain events at
trial. See e.g. Martin, 408 Ill. App. 3d at 892-93 (at trial girlfriend could not recall pulling over car
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and telling police that her defendant-boyfriend had just struck her while driving); People v.
Grayson, 321 Ill. App. 3d at 400-01 (at trial siblings stated could not remember defendant-brother
breaking victim-brother’s nose after playing cards). Here, a jury found the State’s evidence
sufficiently credible despite defense counsel’s thorough cross-examination. Because the jury, as
the factfinder, is in a better position to assess the witnesses’ credibility and resolve the
inconsistencies in the evidence, we cannot say that the State failed to prove that defendant made
contact with Dorsey of an insulting or provoking nature.
¶ 48 Defendant also avers that the jury’s verdicts, which found him not guilty of bodily harm
but guilty of insulting or provoking contact, were legally and logically inconsistent, and therefore
the State failed to meet its burden of proving each element beyond a reasonable doubt. Verdicts
are legally inconsistent when (1) both offenses a defendant is accused of arise out of the same set
of facts and (2) the jury concludes that the same essential element of each crime a defendant is
accused of both exists and does not exist. People v. Murray, 34 Ill. App. 3d 521, 531 (1976).
Because legal inconsistencies in verdicts are necessarily contradictory as to the same essential
element, they must be reversed, because the conviction, as a matter of law, cannot be deemed to
have been based upon proof beyond a reasonable doubt. Id. at 532. Verdicts are logically
inconsistent when they can only be construed as both an acceptance and rejection of the same
theory of the case. Id. Logical inconsistencies in verdicts, absent a legal inconsistency, do not
require reversal. People v. Jones, 174 Ill. App. 3d 737, 743 (1988). Reviewing courts will
nevertheless consider whether legally consistent verdicts are logically inconsistent and, if so,
whether the logical inconsistency raises a reasonable doubt of the defendant’s guilt. Jones, 174 Ill.
App. 3d at 744.
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¶ 49 Here, defendant argues that the verdicts were legally inconsistent because the State only
elicited testimony about, and presented evidence of, the bodily harm charge. We reject defendant’s
argument. The State did elicit testimony from Dorsey that she was “freaked out” and “upset” at
the “huge fight” between her and defendant, and that the fight, in which defendant punched her in
the face and pushed her to the ground, caused her to text her daughter. Because the charges had a
different essential element, bodily harm versus contact of an insulting or provoking nature, and the
State presented evidence of each of the elements, we cannot say that the verdicts are legally
inconsistent.
¶ 50 We also reject defendant’s argument that the verdicts were logically inconsistent because
State put forth only one theory of the case. Defendant avers that the State only submitted one
theory of the case to the jury: that Dorsey suffered from bruises and therefore defendant caused
bodily harm. While the State did put forth this theory, it also advanced the theory that because of
defendant’s actions, Dorsey was afraid, texted her daughter, and filed a petition for an order of
protection. In finding defendant not guilty of bodily harm, the jury seemingly rejected the State’s
theory that defendant caused the injuries that Dorsey suffered as indicated in the photographic
evidence; in finding defendant guilty of insulting or provoking contact, the jury seemingly
accepted the State’s theory that Dorsey was scared and provoked by defendant’s actions (punching
her in the face, pushing her down, threatening to smash her head in) during the incident. Because
the State advanced different theories of the case, and the jury determined one proven beyond a
reasonable doubt and one not, the verdicts cannot be logically inconsistent.
¶ 51 Finally, defendant contends, in a rather conclusory manner, that the insulting or provoking
provision of the statute he was found guilty of is vague and overbroad and thus unconstitutional
as applied to him. Defendant here complains that section 12-3.29(a)(2) of the Criminal Code
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(insulting or provoking contact) is vague and overbroad because prosecutors have “wide and
rampant discretion in their enforcement of the charge” and “the conduct that [defendant] is alleged
to have committed *** is not clear.” We disagree.
¶ 52 Whether a statute is unconstitutional is a matter of law, and thus the standard of review is
de novo. People v. Taher, 329 Ill. App. 3d 1007, 1012 (2002). “Statutes carry a strong presumption
of constitutionality, and the party challenging the constitutionality of a statute bears the burden of
rebutting this presumption.” People v. Maness, 191 Ill. 2d 478, 483 (2000).
¶ 53 In an analogous context to the case-at-hand, the appellate court concluded that the phrase
“contact of an insulting or provoking nature” is not unconstitutionally vague or overboard. In
Taher, the defendant was convicted for domestic battery for making contact of an insulting or
provoking nature with his wife, where she alleged he grabbed her, threw her to the ground, and
stuck his foot in her mouth. 329 Ill. App. 3d at 1011. The defendant testified that he had only ticked
his wife’s stomach, which made her angry. Id. The court held that “a person of ordinary
intelligence would undoubtedly conclude” that the act of throwing someone to the ground and
forcing his foot into that person’s mouth would be insulting or provoking contact. Id. at 1016. The
court also determined that the phrase “contact of an insulting or provoking nature” would not lead
to arbitrary enforcement because “the words ‘insulting’ and ‘provoking’ are commonly used words
that are neither vague nor difficult for the average person to define.” Id. Additionally, because the
conduct prohibited by the statute is not protected by the first amendment, which is a requirement
for a law to be unconstitutional under the overbreadth doctrine, the court held section 12-3.2(a)(2)
of the Criminal Code to be not unconstitutionally vague or overbroad. Id. at 1017.
¶ 54 Here, the testimony presented to the jury demonstrated that defendant and Dorsey were
live-in boyfriend and girlfriend and got into a “huge fight” during dinner. During the fight, things
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got physical between the two, and Dorsey indicated that defendant punched her in the face. Dorsey
was “freaked out” and “upset,” so she texted her daughter, who called the police and came to check
on her mother. Like the Taher court, we conclude that an average person or ordinary intelligence
would find that being punched in the face during a heated argument would be insulting or
provoking. See People v. DeRosario, 397 Ill. App. 3d 332, 334 (2009) (contact can be insulting or
provoking depending on the context of the incident). We thus conclude that the phrase “contact of
an insulting or provoking nature” not vague or overbroad as applied to defendant.
¶ 55 III. CONCLUSION
¶ 56 For the reasons stated, we affirm defendant’s domestic battery conviction.
¶ 57 Affirmed.
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