Opinion
No. 1-13-2823
11-30-2015
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BIBIANO FAVELA, Defendant-Appellant.
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).
Appeal from the Circuit Court of Cook County
No. 11 CR 17224
Honorable Noreen Valeria-Love, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Presiding Justice Liu and Justice Cunningham concurred in the judgment.
ORDER
Held: We hold that the evidence presented at trial was sufficient for the jury to find that Defendant committed the crime of aggravated battery to a child causing bodily harm. Further, we find that Defendant forfeited appealing alleged jury instruction errors not presented in any post-trial motion. This Court orders that the mittimus be corrected to reflect Defendant's conviction for aggravated battery to a child causing bodily harm. Finally, we affirm the $4 charged to Defendant based on 55 ILCS 5/3-4012 (West 2010) and 55 ILCS 5/4-2002.1(c) (West 2010).
¶ 1 The trial court sentenced defendant Bibiano Favela to 4 years' imprisonment after a jury convicted him of one count of aggravated battery to a child causing bodily harm (720 ILCS 5/12-3.05(b)(2)). The incident at issue occurred on September 21, 2011, in Stone Park, Illinois. After returning to the residence where defendant, his finance, Carmen Mendoza, and their daughter, Lynnda Favela, lived, defendant exited Carmen's vehicle, entered the house, and did not return despite a previous discussion that the three of them would go to the local park together. After obtaining some food for Lynnda from another individual in the home, Carmen, while in her car, noticed defendant standing at the front of the house. Carmen began to drive away from the house to head toward the park, but almost immediately she heard glass shatter and Lynnda crying. She turned around to find shattered glass and Lynnda bleeding. Subsequently, the defendant was arrested for throwing a rock through Carmen's car window which resulted in the injury to Lynnda. At a trial by jury, defendant was found guilty of one count of aggravated battery to a child causing bodily harm. This appeal followed.
¶ 2 Before this court, defendant raises the following issues: (1) whether the State proved beyond a reasonable doubt that defendant knowingly committed aggravated battery to a child causing bodily harm; (2) whether the trial court erred in refusing defendant's request to instruct the jury on reckless conduct as a lesser included offense of aggravated battery; (3) whether the trial court erred when it refused to instruct the jury on domestic battery; (4) whether the mittimus should corrected to reflect defendant's conviction for aggravated battery to a child causing bodily harm, not great bodily harm; (5) whether defendant was properly assessed $4 pursuant to 55 ILCS 5/3-4012 (West 2010) and 55 ILCS 5/4-2002.1(c) (West 2010). For the reasons stated below, we find the evidence sufficient to sustain a conviction for aggravated battery to a child causing bodily harm. Second, we find that defendant failed to raise the jury instruction issues in
his post-trial motions and therefore they are waived. Third, we order that the mittimus be corrected to reflect a conviction for aggravated battery of a child causing bodily harm. Finally, we find that the $4 charge to defendant was proper.
¶ 3 JURISDICTION
¶ 4 The trial court sentenced defendant on August 21, 2013. Notice of appeal was timely filed on September 4, 2013. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rule 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013).
¶ 5 BACKGROUND
¶ 6 Defendant, Bibiano Favela, was convicted of one count of aggravated battery to a child causing bodily harm in connection with the injuries sustained by 14 month old, Lynnda Favela, on September 21, 2011.
¶ 7 At or around 3 p.m., on September 21, 2011, Defendant, Bibiano Favela, his finance Carmen Mendoza, and their infant-daughter, Lynnda Favela, drove to the grocery store in Ms. Mendoza's 2002 Chevy Malibu. Carmen testified that she and the defendant were having a "rough day" and not getting along. Upon arriving at the grocery store, Carmen and Lynnda entered the store, while defendant stayed in the car. Carmen and Lynnda purchased groceries and returned to the car. The three then proceeded to defendant's mother's home in Stone Park where all three of them resided.
¶ 8 Upon returning home, defendant exited the car and took the groceries inside, but did not return to the car. Carmen then exited her car and attempted to enter the home, but was denied access by defendant. After defendant rebuffed Carmen's attempts to enter the home, Carmen had
a conversation with Edgar Delatorre, who was present inside the home. After that conversation Carmen returned to her car and Edgar exited the house with milk and strawberries for Lynnda. He passed the items through the driver's side window to Carmen and turned around to head back into the house. At that time, both Carmen and Edgar saw defendant standing at the front of the house. As Carmen started to drive away from the house, the driver's side rear window shattered. Lynnda, who was facing forward in a child safety seat in the middle of the back seat, began to cry. Carmen turned around to find Lynnda bleeding from her upper lip. Carmen dialed 911, while Edgar removed Lynnda from her car seat. Edgar then removed a shard of glass from Lynnda's lip and held her until paramedics arrived. Paramedics arrived and took Lynnda to the hospital where she received stitches for a cut to her lip. Defendant was arrested at the scene by the Stone Park police department.
¶ 9 During the State's case-in-chief, Edgar Delatorre testified that after passing the milk and strawberries through the driver side window, he turned around and began to head back into the house. Defendant was standing at the front of the house and no one else was present. He did not see a rock hit the car window but did hear something fly by his head and then heard a "bang" on Carmen's car. The State introduced evidence from an interview given by Edgar to an assistant state's attorney on September 23, 2011. Wherein Edgar stated that he saw defendant bend down, pick up a rock, and throw it at the car. The defense rested without calling any witnesses.
¶ 10 The jury convicted defendant of one count of aggravated battery to a child causing bodily harm. (720 ILCS 5/12-3.05(b)(2) (West 2010)). Defendant filed a motion for new trial and to set aside the verdict. Relevant here, defendant did not raise the issue of the trial court's denial of defendant's request for a jury instruction on recklessness nor the trial court's denial of a jury instruction regarding domestic battery.
¶ 11 After a sentencing hearing, the trial court sentenced defendant to a total of 4 years' imprisonment for aggravated battery to a child causing bodily harm. The trial court further assessed a total of $689 in fines, fees, and costs, including $2 for Public Defender Records Automation Fee (55 ILCS 5/3-4012 (West 2010)) and $2 for State's Attorney Records Automation Fee (55 ILCS 5/4-2002.1(c) (West 2010)). Defendant timely appealed.
¶ 12 ANALYSIS
¶ 13 Defendant raises five issues on appeal for our review: (1) whether the State proved beyond a reasonable doubt that defendant knowingly committed aggravated battery to a child causing bodily harm; (2) whether the trial court erred in refusing defendant's request to instruct the jury on reckless conduct as a lesser included offense of aggravated battery; (3) whether the trial court erred when it refused to instruct the jury on domestic battery; (4) whether the mittimus should be amended to correctly reflect that defendant was convicted of aggravated battery to a child causing bodily harm, not great bodily harm; (5) whether defendant was properly assessed $4 pursuant to 55 ILCS 5/3-4012 (West 2010) and 55 ILCS 5/4-2002.1(c) (West 2010). We only address three of these issues as defendant failed to raise the jury instruction issues in any post-trial proceeding and as hereinafter set forth has forfeited review of those issues.
¶ 14 First, defendant argues that the state failed to prove beyond a reasonable doubt that he knowingly committed aggravated battery to a child causing bodily harm. Accordingly, defendant is challenging the sufficiency of the evidence to convict him of knowingly committing aggravated battery to a child causing bodily harm.
¶ 15 Our supreme court has stated that when considering a challenge to the sufficiency of the evidence presented in the trial court, the reviewing court's "function is not to retry the defendant." People v. Sutherland, 223 Ill.2d 187, 242 (2006). Rather, we must determine
"'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" People v. Collins, 106 Ill.2d 237, 261 (1985) (emphasis in original)(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This means a reviewing court "must allow all reasonable inferences from the record in favor of the prosecution." People v. Cunningham, 212 Ill.2d 274, 280 (2004). As a reviewing court, "[w]e will not reverse a conviction unless the evidence is so improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of defendant's guilt." People v. Collins, 214 Ill.2d 206, 217 (2005).
¶ 16 Section 12-3.05(b)(2) provides that "[a] person who is at least 18 years of age commits aggravated battery when, in committing a battery, he or she knowingly and without legal justification by any means causes bodily harm or disability or disfigurement to any child under the age of 13 years or to any person with a severe or profound intellectual disability." 720 ILCS 5/12-3.05(b)(2) (West 2010). The defendant here was charged with having acted knowingly. In the context of the aggravated battery statute, "a person is said to act knowingly when he is consciously aware that his conduct is practically certain to cause the result" of bodily harm. People v. Psichalinos, 229 Ill.App.3d 1058, 1067 (2d Dist. 1992). Furthermore, "it is not necessary that the State prove that the defendant intended the specific consequences that occurred." People v. Isunza, 396 Ill.App.3d 127, 132 (2d Dist. 2009). "Rather, where someone in the commission of a wrongful act commits another wrong act not intended, or where in the execution of an intent to do wrong an unintended act resulting in a wrong ensues as a natural and probably consequences, the one acting with a wrongful intent is responsible for the unintended wrong." Id.
¶ 17 Here, defendant was charged with knowingly committing aggravated battery to a child causing bodily harm after he threw a rock at the car he knew was occupied. The State presented evidence that showed defendant was aware that the car was occupied by Carmen and Lynnda, and that Edgar Dellatorre witnessed the defendant pick up a rock and throw it at Carmen's car. The defendant acted knowingly when he threw a rock at the car which he knew was occupied by Carmen and Lynnda. It is not unreasonable for the trier of fact to have concluded that the defendant was consciously aware that his conduct of throwing a rock at an occupied car was likely to cause bodily injury to one or both of the occupants of that car. The fact that one of the occupants was injured by glass and not the rock is of no consequence. See id. (noting where in the execution of an intent to do wrong an unintended act resulting in a wrong ensues as a natural and probably consequences, the one acting with a wrongful intent is responsible for the unintended wrong); see also People v. Lesley, 144 Ill.App.3d 22, 23 (3rd Dist. 1986) (finding that the defendant acted knowingly or that it was practically certain that great bodily harm would result to the driver from the forceful throwing of rocks at an occupied bus).
¶ 18 Accordingly, we find that it was practically certain that throwing a rock at a car defendant knew to be occupied would result in bodily injury to the occupants of the car. Therefore, defendant's conviction for aggravated battery to a child causing bodily harm is affirmed.
¶ 19 Next, defendant asks us to review the trial court's refusal to give two jury instructions: one involving reckless conduct and the other involving domestic battery. As already pointed out and as defendant rightly concedes, defendant failed to raise either of these two issues in any post-trial motion before the trial court. In either a bench or jury trial, in order to properly preserve issues for appeal, a defendant is required to (1) lodge a trial objection and (2) a written, post-trial motion raising the issues if the alleged errors could have been raised during trial. People v.
Enoch, 122 Ill.2d 176, 186 (1988). Even if the error could not have been raised during trial, the alleged error must be presented in a written, post-trial motion. 725 ILCS 5/116-1 (West 2010); see Enoch, 122 Ill.2d at 187. Failure to comply with the statutory requirement of filing a post-trial motion or to raise an issue in the post-trial motion is a forfeiture which limits our review to constitutional issues which have properly been raised at trial, raised later in a post-conviction hearing petition, sufficiency of the evidence issues, and plain error. Enoch, 122 Ill.2d at 190.
¶ 20 In the present case, the defendant did not raise the two jury instruction issues he now presents on appeal in his written, post-trial motion. He maintains, however, that we should consider the two issues under the plain error doctrine. The plain error doctrine allows a reviewing court in a criminal case to review an error which has not been properly preserved for review if either the evidence is closely balanced or the error is of such magnitude that the defendant was denied a fair trial. People v. Nitz, 143 Ill.2d 82, 108 (1991). We decline to review the two issues under the plain error doctrine. First, the evidence was not closely balanced. The State presented uncontradicted evidence that defendant threw a rock at Carmen's car. Second, the trial court was correct in denying both instructions so the claimed error did not deny defendant a fair trial.
¶ 21 The trial court was correct in denying a reckless instruction because no evidence supported the giving of such a jury instruction. A person acts recklessly when he "consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense." 720 ILCS 5/4-6 (West 2010). Although generally a defendant cannot be convicted of an uncharged offense, a defendant is entitled, in certain circumstances, "to have the jury instructed on less serious offenses that are included in the charged offense." People v. Ceja, 204 Ill.2d 332, 359 (2003). In order to receive a lesser
included instruction, the defendant must identify evidence at trial that would allow a jury to rationally find him guilty of the lesser offense, yet acquit him of the greater offense." People v. Medina, 221 Ill.2d 3974, 405 (2006). A jury instruction on a lesser-included offense is justified only when some evidence exists to support giving it to the jury. People v. Jones, 219 Ill.2d 1, 31 (2006). Whether an instruction on a lesser-included offense is warranted depends on the facts and circumstances of each case. Id. The evidence upon which a party relies to justify his request for an instruction must be more than a mere reference or witness comment. Id. At trial there was no evidence of reckless behavior presented, only evidence of intentional or knowing conduct. Accordingly, the trial court's refusal to give such an instruction was proper.
¶ 22 The trial court also properly refused to instruct the jury on domestic battery. "A defendant is entitled to have the jury instructed on a lesser-included offense only if the evidence presented at trial would permit a jury to rationally find the defendant guilty of the lesser-included offense and acquit him of the greater offense." People v. Novak, 163 Ill.2d 93, 108 (1994). Instructing on the lesser-included offense is only proper where the charged greater offense requires the jury to find a disputed factual element that is not required for a conviction of the lesser-included offense. Id. It was proper for the trial court to deny giving an instruction for domestic battery. Domestic battery is not a lesser-included offense to aggravated battery to a child causing bodily harm. Furthermore, such an instruction would have been improper because the charge of aggravated battery to a child causing bodily injury does not require the jury to make a determination of a disputed factual element that is not required for a conviction of domestic battery. Accordingly, the trial court properly denied defendant's request for a jury instruction on domestic battery.
¶ 23 Next, defendant asks us to order the Clerk of the Circuit Court of Cook County to correct his mittimus, which currently contains the correct statutory citation, but states that his conviction was for aggravated battery to a child causing great bodily harm. Defendant was convicted of causing bodily harm, not great bodily harm. Pursuant to Illinois Supreme Court Rule 615(b)(1), a reviewing court may "reverse, affirm, or modify the judgment or order from which the appeal is taken." Ill. S. Ct. R. 615(b)(1) (eff. July 1, 2013). Both the defendant and the State agree that the defendant's mittimus states a conviction for great bodily harm not bodily harm. Accordingly, pursuant to Rule 615(b)(1), we order the Clerk of the Circuit Court of Cook County to correct defendant's mittimus to reflect a conviction for aggravated battery to a child causing bodily harm. See People v. Johnson, 385 Ill.App.3d 585, 609 (1st Dist. 2008) (reviewing court can correct a mittimus at any time).
¶ 24 Finally, defendant asks us to review the imposition of $4 assessed against him following his conviction: $2 pursuant to Public Defender Records Automation Fee (55 ILCS 5/3-4012 (West 2010)) and $2 pursuant to State's Attorney Records Automation Fee (55 ILCS 5/4-2002.1(c) (West 2010)). Because the imposition of fines and fees raises a question of statutory interpretation, we review the imposition of these two fees de novo. People v. Price, 375 Ill.App.3d 684, 697 (1st Dist. 2007).
¶ 25 Our supreme court has cautioned that despite the label as a fee, certain assessments imposed pursuant to conviction are fines. People v. Graves, 235 Ill.2d 244 (2009). The nature of an assessment determines whether the assessment constitutes a fine or fee. Fines are "pecuniary punishment imposed as part of a sentence on a person convicted of a criminal offense." People v. Jones, 223 Ill.2d 569, 581 (2006). Alternatively, fees do not "punish a defendant in addition to the sentence he received, but instead [are] a collateral consequence of
the defendant's conviction that is compensatory in nature." Id. In reviewing whether an assessment is a fine or a fee, the supreme court considers the most important fact to be whether the charge seeks to compensate the state for any costs incurred as the result of prosecuting the defendant. Id. at 600.
¶ 26 First, this court has previously found that the State's Attorney charge is a fee because it "is intended to reimburse the State's Attorney for their expenses related to automated record-keeping systems." People v. Rogers, 2014 IL App (4th) 121099, ¶30; see also People v. Bowen, 2015 IL App (1st) 132046 ¶¶ 62-64; People v. Mister, 2015 IL App (4th) 130180, ¶111. Furthermore, we agree with the Bowen court that the Public Defender assessment is also a fee. See Bowen at ¶65 (concluding that "because the statutory language of both the Public Defender and State's Attorney Records Automation fees is identical except for the name of the organization, we find no reason to distinguish between the two statutes, and conclude both charges constitute fees").
¶ 27 Accordingly, we affirm the imposition of the $2 fee pursuant to Public Defender Records Automation Fee (55 ILCS 5/3-4012 (West 2010)) and $2 fee pursuant to State's Attorney Records Automation Fee (55 ILCS 5/4-2002.1(c) (West 2010)).
¶ 28 CONCLUSION
¶ 29 For the foregoing reasons, we correct the mittimus to reflect a conviction of aggravated battery to a child causing bodily harm and affirm in all other respects.
¶ 30 Affirmed, mittimus corrected.