People v. Williams

Opinion

NO. 4-06-1113 Filed 7/29/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) McLean County JOEL WILLIAMS, ) No. 06CF351 Defendant-Appellant. ) ) Honorable ) Charles G. Reynard, ) Judge Presiding.

JUSTICE MYERSCOUGH delivered the opinion of the court:

In June 2006, a jury found defendant, Joel Williams,

guilty of aggravated battery (720 ILCS 5/12-4(b)(1) (West 2006))

and domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2006)) and

not guilty of interfering with reporting domestic violence (720

ILCS 5/12-6.3(a) (West 2006)). In September 2006, the trial

court sentenced defendant to five years' imprisonment for aggra-

vated battery followed by a two-year term of mandatory supervised

release (MSR) and three years' imprisonment for domestic battery followed by a one-year term of MSR.

Defendant appeals, arguing (1) the trial court erred by

admitting into evidence the victim's written statement to rebut

defendant's claim that the victim was intoxicated on the night in

question; (2) the court's response to a jury question was incor-

rect and inconsistent with the charging instrument; (3) defen-

dant's conviction for domestic battery violates the one-act, one-

crime rule because the jury instructions did not apportion the acts that defendant allegedly committed; and (4) the court erred

in sentencing defendant to two years' MSR on his aggravated-

battery conviction.

We affirm defendant's convictions but remand with

directions to correct the sentencing judgment. The trial court

did not abuse its discretion by admitting the victim's statement

into evidence for a limited purpose. The court's response to the

jury's question was legally accurate, and the variance between

the charging instrument and the evidence at trial was not fatal.

Defendant's conviction for domestic battery did not violate the

one-act, one-crime rule because it was based on different acts

and, as charged, domestic battery was not a lesser-included

offense of aggravated battery. However, the State concedes, and

we agree, that the court erred by sentencing defendant to two

years' MSR on his aggravated-battery conviction. Therefore, we

remand for issuance of an amended sentencing judgment to reflect

a one-year period of MSR for defendant's aggravated-battery

conviction.

Defendant also asserts that his success on the MSR

issue prevents the State from obtaining its costs for this

appeal. We disagree and conclude the State is entitled to its

costs for this appeal.

I. BACKGROUND

In April 2006, the State charged defendant with aggra-

vated battery (count I), domestic battery (count II), and inter-

fering with reporting of domestic violence (count III). Count I

- 2 - alleged that defendant knowingly and without legal justification

made physical contact of an insulting or provoking nature with

Debra Billups by holding a knife, a deadly weapon, to her throat.

Count II alleged that defendant knowingly and without legal

justification made physical contact of an insulting or provoking

nature with Billups, a family or household member, by putting his

hands around her neck. Count II was charged as a Class 4 felony

because defendant had been previously convicted of domestic

battery. See 720 ILCS 5/12-3.2(b) (West 2006).

On June 19, 2006, the jury trial commenced. In his

opening statement, defense counsel informed the jury that the

evidence would show that Billups was so drunk she could not

remember what happened that evening.

The State called Billups to testify, as well as two of

the police officers who responded to the 9-1-1 call, Kendra

DeRosa and Jwone Hughes. The evidence indicated that on April 4,

2006, at approximately 11:45 p.m., the police were called to the

mobile home where defendant and Billups resided. Defendant left

the residence at the suggestion of the police but later returned

to the mobile home. At approximately 3 a.m. on April 5, 2006,

the police were again dispatched to defendant and Billups' home.

Billups testified that when defendant returned to the

home, she let him in but locked him out of their bedroom. Accord-

ing to Billups, defendant kicked the bedroom door open and choked

her until she blacked out. When she regained consciousness,

defendant poked her in her head, side, and back with a knife and

- 3 - asked her "where did [she] want it." Billups managed to call 9-

1-1 during the incident.

On cross-examination, Billups admitted she was intoxi-

cated that evening and had consumed six beers and four shots of

alcohol. However, both police officers testified that Billups

did not appear intoxicated. Specifically, Officer Hughes testi-

fied that he had had contact with Billups in the past and had

seen her intoxicated. Officer Hughes saw no indication that

Billups was "heavily intoxicated" the night in question. Officer

DeRosa testified that Billups did not exhibit the signs of

intoxication DeRosa typically observed in intoxicated persons,

such as difficulty following verbal direction, confusion, blood-

shot and glassy eyes, "stammer[ing] around," and lack of depth

perception.

Billups also admitted on cross-examination that she had

a phone conversation with an investigator from defense counsel's

office the Friday prior to trial. Billups admitted she told the

investigator that she was so intoxicated the night in question

that she did not remember what occurred. Billups testified,

however, that since speaking to the investigator, the events of

the evening had come back to her. On redirect, Billups testified

that her testimony at trial was based on her memory and that she

remembered the events.

Officer DeRosa testified that when she arrived at the

mobile home, Billups told her that defendant had choked her and

held a knife to her head and various parts of her body. The

- 4 - officers found a knife in the kitchen garbage can. Officer

DeRosa saw red marks around Billups' neck and a scratch on her

right shoulder. Pictures of those injuries were admitted at

trial. Officer DeRosa also felt the top of Billups head for an

indentation Billups claimed was caused when defendant stuck the

knife to her head. Officer DeRosa felt a small indentation.

Both officers testified that they witnessed Billups

complete and sign a written statement on April 5, 2006, State's

exhibit No. 5. Officer DeRosa testified that Billups followed

her instruction to place a large "X" in the empty area on the

page and initial it so as to show nothing was added. Officer

Hughes testified that Billups stayed within the lines and the

statement was legible.

Defendant testified on his own behalf. He testified

that Billups was intoxicated on the night in question. Defendant

denied attempting to strangle Billups and denied ever using a

knife on her.

The State sought to publish to the jury Billups'

statement, exhibit No. 5, for the limited purpose of countering

defendant's testimony that Billups was intoxicated. Defense

counsel objected on the basis that the contents of the statement

were highly prejudicial and the State failed to present an expert

to testify that the handwriting was inconsistent with someone who

was highly intoxicated.

The trial court overruled defense counsel's objections

and admitted the exhibit for the limited purpose of considering

- 5 - whether Billups was highly intoxicated on the night in question.

The court instructed the jury as follows:

"I have admitted State's [e]xhibit [No.] 5.

State's [e]xhibit [No.] 5 was identified as

the handwritten statement of Debra Billups[;]

however, I have admitted it for a limited

purpose rather than for all purposes of con-

sideration. The limited purpose for which

you may consider this exhibit is to consider

whether and/or to what extent Debra Billups

was intoxicated on the night in question and

not for any other purpose.

In an effort to limit your consideration

of the exhibit to that limited purpose,

State's [e]xhibit [No.] 5 will be published

to you or handed to you here in the court-

room, and you may look at it for several

minutes if you wish. But, otherwise, it

won't be going back to the jury room for your

more detailed consideration."

While the exhibit was passed to the jurors, defense

counsel approached the bench. The following exchange occurred:

"MR. DODDS [defense counsel]: Your Hono-

r, I want to point out to the [c]ourt that it

appears that one of the jurors is writing

down what's contained in the exhibit. Cer-

- 6 - tainly didn't anticipate this, but I think it

raises a point that was addressed by counsel

of introducing the evidence in the first

place.

THE COURT: Okay.

(Brief interruption.)

(The following proceedings were had in

the presence and hearing of the jury).

MR. GRIENER [assistant State's Attor-

ney]: I believe they're finished."

The record contains no additional information about this inci-

dent.

In closing argument, the assistant State's Attorney

apportioned the two acts--the choking and the use of the knife--

between the two offenses. That is, the assistant State's Attor-

ney argued that defendant committed domestic battery when he

choked Billups and committed aggravated battery when he put the

knife on various parts of Billup's body. The only use the State

made of exhibit No. 5 in closing argument was to ask the jury to

consider whether the handwriting appeared to be that of a "person

who was drunk out of [her] mind." The trial court then in-

structed the jury, including the instruction that "evidence that

was received for a limited purpose should not be considered by

you for any other purpose" (People's tendered instruction No. 1,

based on Illinois Pattern Jury Instructions, Criminal, No. 1.01

(4th ed. 2000)).

- 7 - During deliberations, the jury submitted the following

question: "By using a deadly weapon, does that mean having

physical contact with the weapon?" Following a discussion with

counsel, and at defense counsel's request, the court recessed to

give the parties the opportunity to review the case law regarding

whether actual physical contact with the weapon must be made.

After the recess, the State submitted People v. Avant,

86 Ill. App. 3d 268, 409 N.E.2d 296 (1980), for the proposition

that aggravated battery under section 12-4(b) of the Criminal

Code of 1961 (Criminal Code) (720 ILCS 5/12-4(b) (West 2006))

does not require that the deadly weapon be the instrument of the

battery. Defense counsel argued that Avant was distinguishable

and asked the court to respond to the jury's question by refer-

ring it to the instructions already given. The trial court

refused defense counsel's request. Defense counsel then re-

quested the court seek more clarification from the jury about

what it was asking.

The trial judge found that "[w]hile the possibility of

misunderstanding exists, I don't believe a misunderstanding

exists." The court noted that if the response was not what the

jury was seeking, the jury would ask another question. The

court, over defense counsel's objection, responded to the jury's

question as follows: "No, the law does not require that the

deadly weapon be the instrument of the physical contact." There-

after, the jury returned a verdict finding defendant guilty of

aggravated battery and domestic battery and not guilty of inter-

- 8 - ference with reporting domestic violence.

In July 2006, defendant filed a posttrial motion.

Defendant raised, among other things, numerous objections to the

admission of exhibit No. 5, including that (1) the exhibit lacked

a proper foundation; (2) the exhibit was duplicative of other

evidence; (3) the exhibit constituted improper bolstering and

hearsay; (4) the exhibit's prejudice outweighed its probative

value; (5) the limited purpose for which the exhibit was admitted

required expert testimony; (6) the trial court should have first

ascertained the meaning of the jury's inquiry; and (7) the court

erred by instructing the jury with the additional language from

the Avant case. In September 2006, the court denied the motion.

On September 12, 2006, the trial court sentenced

defendant to five years' imprisonment on count I followed by a

two-year MSR term, and three years' imprisonment on count II

followed by a one-year MSR term. Defendant filed a motion to

reconsider sentence, which the court denied.

This appeal followed.

II. ANALYSIS

A. Trial Court Did Not Abuse Its Discretion by Admitting Billups' Statement for a Limited Purpose

Defendant argues the trial court erred by admitting

into evidence Billups' written statement to rebut defendant's

claim that Billups was intoxicated on the night in question.

1. Standard of Review

When evidence is competent for only one purpose, it may

be admitted for that limited purpose. People v. Libman, 249 Ill.

- 9 - App. 3d 451, 457, 618 N.E.2d 1129, 1133 (1993). However, only

relevant evidence should be admitted, and even relevant evidence

may be excluded if "its prejudicial effect substantially out-

weighs its probative value." People v. Ransom, 319 Ill. App. 3d

915, 921-22, 746 N.E.2d 1262, 1268-69 (2001).

The admission of evidence is within the discretion of

the trial court. People v. Davis, 322 Ill. App. 3d 762, 765, 751

N.E.2d 65, 67 (2001); see also People v. Alsup, 373 Ill. App. 3d

745, 759, 869 N.E.2d 157, 170 (2007) (holding that "[t]he deter-

mination of whether the probative value of evidence is outweighed

by its prejudicial effect" is within the discretion of the trial

court). Absent prejudice to the defendant, this court will not

interfere with the trial court's discretion. People v. Spann, 97

Ill. App. 3d 670, 677, 422 N.E.2d 1051, 1057 (1981); see also

Davis, 322 Ill. App. 3d at 765, 751 N.E.2d at 67 (noting that the

appellate court will reverse if the trial court admits into

evidence prejudicial exhibits that lack the requisite founda-

tion).

2. Trial Court Did Not Admit Statement as Substantive Evidence

Defendant first argues the admission of the statement

constituted an improper admission of a prior consistent state-

ment. Defendant asserts the jury may have incorrectly believed

that Billups' handwriting exhibited lucidity and control that was

inconsistent with any level of alcohol impairment, thereby

mitigating the defense's assertion that she was too intoxicated

to offer credible trial testimony about the incident.

- 10 - Defendant is correct that a witness's trial testimony

may not be bolstered by the admission of prior consistent state-

ments made out of court. People v. Ware, 323 Ill. App. 3d 47,

51, 751 N.E.2d 81, 85 (2001). However, the record clearly

demonstrates the trial court did not admit the statement into

evidence substantively, but only for the purpose of showing the

jury Billups' handwriting on the night in question. The evidence

was relevant (as discussed further below), and the court gave a

limiting instruction. As such, the court did not abuse its

discretion. See, e.g., People v. Illgen, 145 Ill. 2d 353, 376,

583 N.E.2d 515, 525 (1991) (finding that the limiting instruction

reduced the prejudicial effect of the admission of other-crimes

evidence).

3. The Record Does Not Support Defendant's Assertion That the Jury Could Not Follow Limiting Instruction

Defendant next argues the limiting instruction was

insufficient to mitigate the prejudicial effect. According to

defendant, in this situation the jury could not follow the trial

court's instruction, as evidenced by the fact that at least one

juror disregarded the court's limiting instruction by writing

down the substance of the statement.

Defendant compares the admission of the statement in

this instance to cases where a nontestifying codefendant's

extrajudicial statement was admitted at a joint trial with a

limiting instruction that the jury disregard the statement as

evidence of the defendant's guilt or innocence. See People v.

Duncan, 124 Ill. 2d 400, 530 N.E.2d 423 (1988); see also Bruton

- 11 - v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620

(1968). In Duncan, the court noted:

"Although it is often reasonable to

assume that a jury has followed a trial

judge's limiting instructions regarding evi-

dence admitted for one purpose but not for

another, 'there are some contexts in which

the risk that the jury will not, or cannot,

follow instructions is so great, and the

consequences of failure so vital to the de-

fendant, that the practical and human limita-

tions of the jury system cannot be ignored.

[Citations.]' (Bruton, 391 U.S. at 135, 20 L.

Ed. 2d at 485, 88 S. Ct. at 1627.)" Duncan,

124 Ill. 2d at 406, 530 N.E.2d at 426.

However, this context differs greatly from the situa-

tion involving a codefendant's extrajudicial statement implicat-

ing the defendant. In fact, since Bruton, the United States

Supreme Court has permitted the use at a joint trial of a

nontestifying codefendant's confession, even where the defendant

is linked to the confession through other evidence, if the

confession is redacted to eliminate references to the defendant

and if the jury is instructed not to use the confession against

the defendant. See Richardson v. Marsh, 481 U.S. 200, 211, 95 L.

Ed. 2d 176, 188, 107 S. Ct. 1702, 1709 (1987). In this case, the

probability that the jury would not be able to follow the in-

- 12 - struction is not present. See, e.g., People v. Gonzalez, 379

Ill. App. 3d 941, 954-55, 884 N.E.2d 228, 239-40 (2008) (finding

no error in the admission, for a limited purpose and with a

limiting instruction, of an out-of-court statement by a person

stating she knew the defendant killed the victim; a strong

presumption exists that the jury follows a limiting instruction,

and nothing in the record rebutted that presumption).

As "proof" that the jury could not follow the instruc-

tion, defendant points to the indication in the record that at

least one juror was writing down Billups' statement verbatim.

However, defendant has forfeited that argument. Although defense

counsel informed the court that it appeared that one of the

jurors was writing down verbatim the statement, nothing in the

record indicates whether defense counsel asked the court to stop

the juror from doing so, otherwise question the jury, or look at

the jurors' notes. Also, based on this record, this court cannot

determine whether the juror was writing down the statement

verbatim or taking notes on his or her impression of the state-

ment and its legibility. Because defendant failed to express his

dissatisfaction with the trial court's handling of the matter in

the trial court, he has forfeited the issue on appeal. See,

e.g., Zukosky v. Grounds, 85 Ill. App. 3d 355, 363, 406 N.E.2d

848, 854 (1980) (finding that plaintiff's counsel acquiesced in

the trial court's disposition of the alleged misconduct--alleged

communication between the defendant and a juror--by failing to

express dissatisfaction in the trial court, thereby forfeiting

- 13 - the issue for review).

4. Trial Court's Admission of the Statement for a Limited Purpose Was Not an Abuse of Discretion

Finally, defendant argues the purpose for the admission

of the statement--for the limited purpose of considering whether

Billups was highly intoxicated on the night in question--was

illusory because the jury could not determine the state of her

intoxication by reading the statement, examining her handwriting,

and observing her ability to stay in the lines.

Observations of signs of intoxication are within the

competence of the average adult. See, e.g., People v. Workman,

312 Ill. App. 3d 305, 310, 726 N.E.2d 759, 762-63 (2000) (noting

that "even a layperson is competent to testify regarding a

person's intoxication from alcohol, because such observations are

within the competence of all adults of normal experience").

While certainly not conclusive, the suggestion that an intoxi-

cated person would not write neatly and within the lines is a

reasonable one. See, e.g,, People v. Jones, 65 Ill. App. 3d

1033, 1036, 383 N.E.2d 239, 241 (1978) (noting that the

"[d]efendant's handwriting appearing on the waiver suggests no

appearance of intoxication"); State v. Sanders, 130 Ohio App. 3d

789, 795, 721 N.E.2d 433, 437 (1998) (finding the trial court

erred by excluding a copy of the defendant's signature shortly

after her arrest to refute the trooper's testimony that the

defendant's motor skills were impaired due to the influence of

alcohol. "When a signature appears neat and legible, the infer-

ence that can be made is that the signer's motor skills were not

- 14 - impaired").

Even if the trial court erred by admitting the exhibit

for the limited purpose of showing Billups' handwriting, any

error was harmless. The evidence against defendant was over-

whelming, given the trial testimony from Billups and the officers

and the pictures of Billups' injuries. See, e.g., People v.

Lombardi, 305 Ill. App. 3d 33, 44, 711 N.E.2d 426, 434 (1999)

(the improper admission of evidence is harmless beyond a reason-

able doubt where the evidence against the defendant is

overwhelming). Moreover, the statement is not particularly

consistent with Billups' trial testimony, as it contains no

reference to defendant choking Billups.

Although the trial court did not abuse its discretion

by admitting the statement for the limited purpose of showing the

jury Billups' handwriting, a better practice would include

indicating on the record the length of time the jurors were

allowed to examine the document. In addition, once defense

counsel raised the possibility that one of the jurors was copying

the statement, the court should put on the record what tran-

spired, review the jurors' notes, and possibly voir dire the jury

on the issue.

B. Trial Court's Response to the Jury's Question Was Legally Correct, and Defendant Forfeited the Argument That Any Variance Between the Indictment and the Evidence Was Fatal

Defendant next argues the trial court's response to the

jury's question was incorrect and not consistent with the charg-

ing instrument. Specifically, defendant asserts that (1) aggra-

- 15 - vated battery under subsection (b) of section 12-4 of the Crimi-

nal Code (720 ILCS 5/12-4(b) (West 2006)) requires that the

offender actually use a deadly weapon in the commission of a

battery; and (2) the response was inconsistent with count I of

the indictment which alleged that defendant "knowingly made

physical contact of an insulting or provoking nature with Debra

Billups by holding a knife, a deadly weapon, to her throat."

The State argues defendant has forfeited these issues

on appeal. Specifically, the State asserts that in the trial

court, defendant only suggested the court refer the jury back to

the instruction originally given and that Avant was factually

distinguishable. According to the State, defendant never argued

the response created a prejudicial variance with the language of

the indictment.

The Illinois Supreme Court recently held, in regard to

a jury instruction, that a defendant need not object to the

instruction on the identical grounds in the trial court as on

appeal to avoid forfeiture. See People v. Mohr, 228 Ill. 2d 53,

64-65, 885 N.E.2d 1019, 1025 (2008) (finding that the defendant's

objection at trial to an instruction on the basis that "once the

jurors heard the information alleging that the defendant was

provoked by the victim, the State was required to 'back that up'"

did not forfeit the argument raised in his posttrial motion and

on appeal that no evidence of provocation was presented because

the objection was "close enough"). Here, defendant raised

several objections to the trial court's response to the jury

- 16 - inquiry both at trial and in his posttrial motion. At trial,

defendant challenged the Avant case as distinguishable. This

argument was "close enough" to his argument on appeal that the

court misstated the law in its response. However, none of

defendant's objections at trial were similar to the second

argument he now raises on appeal--that the response to the jury

question was inconsistent with count I of the indictment.

Therefore, defendant has forfeited that argument on appeal.

Whether the court misstated the law is a question of

law, and our review is de novo. People v. Gray, 346 Ill. App. 3d

989, 994, 806 N.E.2d 753, 757 (2004). The jury submitted the

following question: "By using a deadly weapon, does that mean

having physical contact with the weapon?" The trial court

responded as follows: "No, the law does not require that the

deadly weapon be the instrument of the physical contact."

Defendant argues on appeal that the State had to show more than

mere possession of the knife and that this court's decision in

Avant, 86 Ill. App. 3d 268, 409 N.E.2d 296, the case relied on by

the trial court, is distinguishable.

In the Avant case, the defendant, with his left hand,

knocked the victim's cap off his head. Avant, 86 Ill. App. 3d at

270, 409 N.E.2d at 297. After the cap was knocked off his head,

the victim noticed the defendant had a pistol halfway out of his

pocket with his right hand on the pistol. Avant, 86 Ill. App. 3d

at 270, 409 N.E.2d at 297. The defendant argued that because he

did not knock off the victim's hat with his gun and the victim

- 17 - did not see the gun until his cap was knocked off, defendant

could not be convicted of aggravated battery. Avant, 86 Ill.

App. 3d at 270, 409 N.E.2d at 297. This court disagreed, con-

cluding that aggravated battery does not require that "the deadly

weapon be the instrument of the battery." Avant, 86 Ill. App. 3d

at 270, 409 N.E.2d at 297. Specifically, we stated:

"The Committee Comments to section 12-4

of the Illinois Criminal Code of 1961 (Ill.

Ann. Stat., ch. 38, par. 12-4, Committee

Comments, at 465 (Smith-Hurd 1979)) state[]

that section 12-4(b) 'involves a battery

committed under aggravated circumstances from

which great harm might and usually does re-

sult (although it did not in the particular

case), and therefore it constitutes a more

serious threat to the community than a simple

battery.' Ostensibly, section 12-4(b) was

intended to reach the type of conduct engaged

in here. Moreover, we agree with the State that, although the weapon was not used to

make the actual contact complained of, the

weapon was used to make the contact more

insulting or provocative. The statute does

not require that the deadly weapon be the

instrument of the battery." Avant, 86 Ill.

App. 3d at 270, 409 N.E.2d at 297.

- 18 - Clearly, the trial court did not err by advising the jury, in

response to its inquiry, that the "law does not require that the

Defendant also argues the trial court's response to the

jury question was inconsistent with count I of the indictment,

which alleged that defendant "knowingly made physical contact of

an insulting or provoking nature with Debra Billups by holding a

knife, a deadly weapon, to her throat." Defendant argues the

State had to prove that defendant held the knife to Billups'

throat. As previously noted, defendant has forfeited this

argument by failing to raise it before the trial court. Even if

this court were to address the issue on the merits, we would find

no error.

"In order for a variance between an indictment and

proof at trial to be fatal, the difference must be material and

of such a character as to mislead defendant in his defense or

expose him to double jeopardy." People v. Burdine, 362 Ill. App.

3d 19, 24, 839 N.E.2d 573, 577 (2005) (involving alleged variance

in the indictment which alleged that the defendant struck the fireman and the evidence at trial that the defendant bit the

fireman). No such variance appears in this case.

Here, the indictment identified the victim, the nature

of the incident, and the date and place of the incident. See

Burdine, 362 Ill. App. 3d at 24, 839 N.E.2d at 577. Defendant

does not face the risk of double jeopardy because the judgment

could be used to bar a subsequent prosecution for the same

- 19 - conduct.

Moreover, defendant was not misled by the alleged

variance in the indictment. Defendant knew what happened and why

he was arrested. See Burdine, 362 Ill. App. 3d at 24, 839 N.E.2d

at 577 (finding a difference between the indictment, which

alleged the defendant struck the fireman, and the evidence at

trial that the defendant bit the fireman was not a fatal vari-

ance). The indictment apprised defendant of the offense charged

sufficiently for presentation of his defense.

Defendant cites People v. Daniels, 75 Ill. App. 3d 35,

393 N.E.2d 667 (1979), which is distinguishable. In that case,

the defendants were charged with armed robbery and the indictment

alleged that the defendants took United States currency from the

victim. Daniels, 75 Ill. App. 3d at 40, 393 N.E.2d at 672. The

evidence at trial, however, only related to theft of a watch.

Daniels, 75 Ill. App. 3d at 40, 393 N.E.2d at 672. Moreover, the

State did not prove that the victim wore or owned a watch or that

the watch was taken by one of the defendants. Daniels, 75 Ill.

App. 3d at 41, 393 N.E.2d at 673. Therefore, the court reversed the armed-robbery convictions. Daniels, 75 Ill. App. 3d at 41,

393 N.E.2d at 673.

In contrast here, the knife was involved whether

defendant held it to Billups' neck or other parts of her body.

Unlike Daniels, the variance was not so material as to warrant a

new trial and did not mislead defendant in preparing his defense.

C. Defendant's Domestic-Battery Conviction Does Not Violate the One-Act, One-Crime Rule

- 20 - Defendant next argues that if this court finds the

trial court's response to the jury inquiry was correct and the

knife did not have to be the instrument of physical contact, this

court must vacate defendant's domestic-violence conviction to

insure that the one-act, one-crime rule is not violated. While

defendant forfeited this issue by raising it for the first time

on appeal, the plain-error doctrine permits review of the error.

See People v. Harvey, 211 Ill. 2d 368, 389, 813 N.E.2d 181, 194

(2004) (holding that the plain-error rule permitted review of the

one-act, one-crime issue because a violation and the potential

for surplus conviction and sentence affected the integrity of the

judicial process).

To determine whether multiple convictions may properly

be entered, courts must engage in a two-step analysis. First,

the court must determine whether the defendant's conduct con-

sisted of separate acts or a single physical act. People v.

Rodriguez, 169 Ill. 2d 183, 186, 188, 661 N.E.2d 305, 306, 307-08

(1996) (finding that the aggravated-criminal-sexual-assault

offense and the home-invasion offense were based on separate acts). An "act" is "any overt or outward manifestation which will

support a different offense." People v. King, 66 Ill. 2d 551,

566, 363 N.E.2d 838, 844-45 (1977) (finding offenses of rape and

burglary were based on separate acts). While multiple convic-

tions based on the same physical act are improper (Rodriguez, 169

Ill. 2d at 186, 661 N.E.2d at 306)), a person can be guilty of

two offenses even when a common act is part of both offenses

- 21 - (Rodriguez, 169 Ill. 2d at 188, 661 N.E.2d at 308).

Second, if a defendant committed more than one act, the

court must then determine whether any of the offenses are lesser-

included offenses. Rodriguez, 169 Ill. 2d at 186, 661 N.E.2d at

306. To determine whether an offense is a lesser-included

offense, courts look to the charging instrument. People v.

Bussan, 306 Ill. App. 3d 836, 839, 715 N.E.2d 820, 822 (1999).

Under this approach, "an offense is a lesser[-]included offense

if it is described by the charging instrument of the greater

offense." Bussan, 306 Ill. App. 3d at 839, 715 N.E.2d at 822.

A lesser-included offense is "established by proof of

the same or less than all of the facts or a less[-]culpable

mental state (or both), than that which is required to establish

the commission of the offense charged." 720 ILCS 5/2-9(a) (West

2006). However, "[a] charging instrument need not expressly

allege all the elements of the [offense] if those elements can be

inferred from the language of the charging instrument." People

v. Baldwin, 199 Ill. 2d 1, 8, 764 N.E.2d 1126, 1130 (2002). If

an offense is a lesser-included offense, multiple convictions are improper. Rodriguez, 169 Ill. 2d at 186, 661 N.E.2d at 306-07.

If the offense is not a lesser-included offense, then multiple

convictions are permissible. Rodriguez, 169 Ill. 2d at 186, 661

N.E.2d at 306-07. Our review is de novo. People v. Milton, 309

Ill. App. 3d 863, 868, 723 N.E.2d 798, 802 (1999).

For the State to properly obtain multiple convictions

for connected acts that might be treated as a series of offenses,

- 22 - the State must apportion the acts to the offenses in the charging

instrument and at trial. See People v. Crespo, 203 Ill. 2d 335,

345, 788 N.E.2d 1117, 1123 (2001). In this case, the State

charged defendant with aggravated battery based on holding a

knife to Billups' throat and with domestic battery for putting

his hands around Billups' neck. At trial, during closing argu-

ments the prosecutor clearly distinguished between the separate

acts for the separate charges. Therefore, defendant's conduct

consisted of separate acts and not a single physical act.

Defendant argues that the jury instructions did not

apportion the charges. However, defendant did not object to the

jury instructions and, therefore, has forfeited any alleged

error. People v. Anderson, 325 Ill. App. 3d 624, 636, 759 N.E.2d

83, 93 (2001) (failure to object to a jury instruction forfeits

the issue on appeal). Moreover, even if the issue were not

forfeited, defendant cites no authority for the argument that the

jury instructions must apportion the acts. Finally, the evidence

adduced at trial indicated discreet, insulting, or provocative

acts for domestic battery and aggravated battery. Billups testified that defendant choked her until she blacked out.

Billups further testified that defendant poked her head, sides,

and back with a kitchen knife.

Having found that defendant committed more than one

act, this court must next determine whether domestic battery or

aggravated battery is the lesser-included offense of the other.

Rodriguez, 169 Ill. 2d at 186, 661 N.E.2d at 306. The charging

- 23 - instrument alleged that defendant committed the offense of

aggravated battery:

"IN THAT HE KNOWINGLY AND WITHOUT LEGAL

JUSTIFICATION MADE PHYSICAL CONTACT OF AN

INSULTING OR PROVOKING NATURE WITH DEBRA

BILLUPS BY HOLDING A KNIFE, A DEADLY WEAPON,

TO HER THROAT ***."

The charging instrument alleged that defendant committed the

offense of domestic battery as follows:

"IN THAT HE KNOWINGLY AND WITHOUT LEGAL JUS-

TIFICATION MADE PHYSICAL CONTACT OF AN IN-

SULTING OR PROVOKING NATURE WITH DEBRA

BILLUPS, A FAMILY OR HOUSEHOLD MEMBER, BY

PUTTING HIS HANDS AROUND HER NECK, SAID DE-

FENDANT HAVING BEEN PREVIOUSLY CONVICTED OF

THE OFFENSE OF DOMESTIC BATTERY IN MCLEAN

COUNTY CASE 2005 CM 1300 ***."

Clearly, the aggravated-battery conviction required a

deadly weapon, an element the domestic-battery charge did not require, and the domestic battery had elements that the aggra-

vated battery did not require--Billups' identity as a family or

household member and defendant's previous conviction for domestic

battery. See People v. Peacock, 359 Ill. App. 3d 326, 335, 833

N.E.2d 396, 404 (2005) (finding, based on the charging instru-

ment, that aggravated battery and domestic violence were not

lesser-included offenses of home invasion). Therefore, defen-

- 24 - dant's conviction for domestic battery does not violate the one-

act, one-crime rule.

D. Sentencing Judgment Must Be Amended To Show a One-Year Period of MSR for the Aggravated-Battery Conviction

Defendant argues the trial court erred in sentencing

him to two years' MSR on his aggravated-battery conviction. The

State concedes the error, and we accept that concession.

Aggravated battery is a Class 3 felony. 720 ILCS 5/12-

4(e)(1) (West 2006). For a Class 3 felony, the MSR term is one

year. 730 ILCS 5/5-8-1(d)(3) (West 2006). Therefore, on remand,

the trial court shall amend the sentencing judgment to reflect a

one-year period of MSR for the aggravated-battery conviction.

E. The State Is Entitled to Costs for This Appeal

In its appellee brief, the State seeks costs pursuant

to section 4-2002 of the Counties Code (55 ILCS 5/4-2002 (West

2006)). In his reply brief, defendant objects, noting that costs

should not be assessed against him because he received partial

relief as a result of his appeal.

However, "[t]he successful defense of any part of a criminal judgment challenged on appeal entitles the State to a

per diem fee and costs for its efforts." People v. Smith, 133

Ill. App. 3d 613, 620, 479 N.E.2d 328, 333 (1985) (assessing

costs on appeal where the defendant's conviction and sentence

were affirmed with the exception that the defendant was given $10

credit against fines for two days spent in jail prior to trial),

citing People v. Nicholls, 71 Ill. 2d 166, 178, 374 N.E.2d 194,

199 (1978) (holding that the appeal fee shall be taxed as costs

- 25 - unless judgment is entered in favor of the accused in full).

Because the State has in part successfully defended a portion of

the criminal judgment, we grant the State its statutory assess-

ment of $50 against defendant as costs of this appeal.

III. CONCLUSION

For the reasons stated, we affirm defendant's convic-

tions for aggravated battery and domestic battery but remand for

issuance of an amended sentencing judgment to reflect a one-year

period of MSR for defendant's aggravated-battery conviction. As

part of our judgment, we grant the State's request that defendant

be assessed $50 as costs for this appeal.

Affirmed as modified and remanded with directions.

KNECHT and TURNER, JJ., concur.

- 26 -