People v. Irvine

Fourth Division

January 31, 2008

No. 1-06-0005

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Cook County.

)

v. ) No. 05 MC1 439010

)

ALFRED IRVINE, ) Honorable

) Kay Marie Hanlon,

Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE NEVILLE delivered the modified opinion of the court:

Defendant, Alfred Irvine, was found guilty of domestic battery and sentenced to 12 months

of conditional discharge, to mandatory domestic violence classes and to fees and fines of $379. In

this appeal, the defendant presents the following issues for review: (1) whether the State proved the

defendant guilty of domestic battery beyond a reasonable doubt; (2) whether section 12-3.2 of the

Criminal Code of 1961 (Criminal Code) is unconstitutionally vague (720 ILCS 5/12-3.2 (West

2004)); (3) whether the defendant received ineffective assistance of counsel; (4) whether the trial

court erred in its recollection of the evidence when it weighed the credibility of witnesses and found

the defendant guilty; (5) whether the defendant is entitled to a credit of $5 per day toward the fines

assessed against him for time he spent in custody prior to sentencing; and (6) whether a $30 fee for

minor traffic ordinance violations must be vacated.

We hold: (1) that the evidence was sufficient to find the defendant guilty beyond a reasonable

1-06-0005

doubt of the offense of domestic battery; (2) that section 12-3.2(a) of the Criminal Code is not

unconstitutionally vague; (3) that the defendant did not receive ineffective assistance of counsel; (4)

that any error occasioned by the trial court’s recollection of the evidence in this case was harmless

beyond a reasonable doubt and does not undermine confidence in the verdict; (5) that People v.

Jones, 223 Ill. 2d 569 (2006), makes it clear that the defendant is entitled to a $10 credit for the two

days he was incarcerated prior to sentencing; and (6) that the trial court erred when it imposed a fee,

pursuant to section 27.2a(w)(1)(E) of the Clerks of Courts Act (705 ILCS 105/27.2a(w)(1)(E) (West

2004)), because the defendant was charged in a misdemeanor complaint but was not charged with

a minor traffic or ordinance violation.

BACKGROUND

Defendant was arrested near the intersection of Belmont and Clark Streets in Chicago

following an altercation with Niya White and charged in a misdemeanor complaint with one count

of domestic battery in violation of section 12-3.2 of the Criminal Code. 720 ILCS 5/12-3.2 (West

2004). The State filed a petition for an order of protection against the defendant, pursuant to the

Illinois Domestic Violence Act of 1986 (the Act) (750 ILCS 60/101 et seq.(West 2004)), and on May

25, 2005, an order of protection was entered against the defendant. Finally, the defendant waived

his right to a jury trial, and a bench trial was held on June 15, 2005.

THE STATE'S CASE

Niya White

White testified at trial that she and the defendant had been involved in a full relationship for

approximately 45 days. However, White also testified that she and the defendant continued to have

-2-

1-06-0005

a sexual relationship after the official break up of the full relationship. According to White, the

sexual relationship ended on May 2, 2005. White testified that she arranged to meet with the

defendant on May 2, 2005, and saw him near the intersection of Belmont and Clark in Chicago at

approximately 5:30 p.m. White was with Jermaine Edward and a man whose name was Erotica.

White testified that, when she approached the defendant, he was with Natasha Salazar. White started

asking the defendant questions but their conversation quickly degenerated into an argument. White

testified that, “Irvine grabbed [her], choked [her] on the neck, and he shoved [her] into a glass

window.” White also testified that the defendant slapped her in the face with an open hand and

grabbed her by the hair and threw her against a parked car. According to White, the altercation

ended when an unidentified man dressed in black broke things up.

Once the altercation ended, White walked to the Open Door Shelter and called the police.

When the police arrived later that evening, they took White’s statement and then they arrested the

defendant. White testified on direct examination that she had a swollen face and a painful scalp, but

on cross-examination she testified that she decided not to go to the hospital. At the conclusion of

White’s testimony, the State rested and the defendant made a motion for a directed verdict. Finally,

after the defendant waived argument on his motion, the trial court denied the motion.

THE DEFENDANT'S CASE

Natasha Salazar

Natasha Salazar testified that she and the defendant had been together on Belmont Street, in

Chicago, for approximately an hour when White approached with two other people whom Salazar

had previously seen. According to Salazar, White started talking and, at first, everything seemed

-3-

1-06-0005

okay, but then the conversation degenerated into an argument. Salazar testified that she got mad

during the first 30 seconds of the conversation, so she walked a few blocks to the Dunkin’ Donuts

on the corner of Belmont and Clark. Streets. Salazar testified that she was at Dunkin’ Donuts for

approximately five to seven minutes, that she purchased a bagel and began to consume it, and that

she went back outside to get her hat from the defendant. Once she was outside, she watched as

White got angry and pushed the defendant, and Irvine pushed back after he was pushed. Salazar got

her hat from Irvine. According to Salazar,“she [White] tried to come up and get in my face [and]

started to fighting [sic] with the 'boot cops' out there.” Salazar explained that "boot cops" are

employees of a towing company that tows cars from the Dunkin’ Donuts parking lot. Salazar

testified that the boot cops pushed White away from her and Irvine. Finally, Salazar testified that

she walked away from the scene and did not see Irvine again until he was arrested.

Alfred Irvine

Irvine testified that he and Salazar were standing in front of the library when White

approached and told him that they needed to talk. Irvine testified that Salazar left after a minute and

walked off toward the nearby Dunkin’ Donuts without her hat. Defendant testified that he had

Salazar’s hat, and therefore, he followed Salazar and walked in the direction of Dunkin’ Donuts.

According to the defendant, he told White, “[L]eave me alone, I don’t want to be bothered with you,

we’re done.” Nevertheless, White followed him for three blocks as he walked toward the Dunkin’

Donuts. Defendant testified that White repeatedly grabbed and pulled his shoulder while she told

him that they needed to talk. The defendant explained how he tried to enter Dunkin’ Donuts but that

the boot cops would not let him enter the store. Defendant testified that he and White passed the

-4-

1-06-0005

Open Door Shelter as they walked. According to the defendant, White pushed him again in front

of the Open Door Shelter. The defendant testified that he pushed her back to get her off him and told

her to leave him alone because he did not want to have anything to do with her. The defendant also

testified that Salazar approached and asked for her hat and that White started hitting his back and

shoulders when he turned to give the hat to Salazar. At that point, the defendant testified the boot

cops broke up the fight.

The trial court listened to the closing arguments, reviewed the testimony of White, Salazar

and the defendant and stated, “I don’t believe the defendant, that he kept on walking for blocks and

blocks, kept on having [the] complaining witness pushing on his shoulder and basically did nothing

but defend himself. I believe complainant; therefore, there will be a finding of guilty of domestic

battery.”

The defendant was convicted of domestic battery and (1) was sentenced to 12 months of

conditional discharge, (2) was ordered to complete domestic violence counseling; (3) was sentenced

to a complete stay-away order of protection from White; and (4) was ordered to pay fees and fines

of $379. The defendant filed a motion for a finding of not guilty or for a new trial.

On December 21, 2005, the defendant filed a second amended motion for a finding of not

guilty or for a new trial on the basis of newly discovered evidence: the affidavit of D’Angelo Zavala,

one of the boot cops that witnessed the altercation. Zavala averred in his affidavit that he had

watched as White followed the defendant and tried to argue with him. According to Zavala, the

defendant tried to ignore White, who shoved him from behind before the defendant turned and

pushed back. The defendant argued that he was previously unable to secure the affidavit or

-5-

1-06-0005

testimony of Zavala because of the order of protection in effect before the trial and the fact that

Zavala worked in an area frequented by White.

On December 21, 2005, the trial court denied the defendant’s second amended motion for

a finding of not guilty or a new trial (1) because the trial court judged the credibility of witnesses and

believed White; (2) because the trial court indicated it judged the interest, bias, motive and

prejudices and correctly applied the law to reach the right decision; and (3) because the trial court

found that the defendant was not entitled to a new trial because the alleged newly discovered

evidence could have been discovered during the trial through the exercise of reasonable diligence.

ANALYSIS

Sufficiency of the Evidence

The defendant argues that he was erroneously convicted of domestic battery because the State

failed to prove that he was a family member or household member of the victim as charged in the

State’s complaint. According to the defendant, the State failed to present evidence which proved that

he and White were “family or household members” that were involved in a “dating relationship” that

was “more serious and intimate than casual” and comes within the purview of the domestic battery

statute. 720 ILCS 5/12-3.2 (West 2004).

The State argues that it presented evidence that proved that the defendant was guilty of

domestic battery statute. 720 ILCS 5/12-3.2 (West 2004). The State also argues that the evidence

presented was sufficient to prove that the defendant and White were family or household members

as defined in subsection (3) of section 112A-3 of the Code of Criminal Procedure of 1963 (Code of

Criminal Procedure) as amended. 725 ILCS 5/112A-3(3) (West 2004). Subsection (3) of section

-6-

1-06-0005

112A-3 defines "family or household members" as "persons who *** have had a dating or

engagement relationship." 725 ILCS 5/112A-3(3) (West 2004).

Illinois courts are guided by established rules of statutory construction. “The cardinal rule

of statutory construction, and the one to which all other canons and rules must yield, is to ascertain

and give effect to the true intent and meaning of the legislature.” State Farm Mutual Automobile

Insurance Co. v. Illinois Farmers Insurance Co., 226 Ill. 2d 395, 401 (2007), citing Progressive

Universal Insurance Co. of Illinois v. Liberty Mutual Fire Insurance Co., 215 Ill. 2d 121, 134 (2005),

citing Country Mutual Insurance Co. v. Teachers Insurance Co., 195 Ill. 2d 322, 330 (2001). Our

supreme court has consistently held that “[t]he most reliable indicator of legislative intent is found

in the language of the statute.” State Farm, 226 Ill. 2d at 401, citing Midstate Siding & Window Co.

v. Rogers, 204 Ill. 2d 314, 320 (2003), citing Michigan Avenue National Bank v. County of Cook,

191 Ill. 2d 493, 504 (2000). When evaluating a statute, we recognize that “[s]tatutory language is

afforded its plain and ordinary meaning.” State Farm, 226 Ill. 2d at 401, citing Midstate Siding &

Window Co., 204 Ill. 2d at 320, citing Michigan Avenue National Bank, 191 Ill. 2d at 504. With

these principles in mind, we now examine the statute that criminalizes domestic battery. 720 ILCS

5/12-3.2 (West 2004).

Section 12-3.2 of the Criminal Code provides, in pertinent part:

“A person commits domestic battery if he intentionally or knowingly

without legal justification by any means:

(1) Causes bodily harm to any family or household member

as defined in subsection (3) of Section 112A-3 of the Code

-7-

1-06-0005

of Criminal Procedure of 1963, as amended; [or]

(2) Makes physical contact of an insulting or provoking

nature with any family or household member as defined in subsection (3) of

Section 112A-3 of the Code of Criminal Procedure of 1963, as amended.”

(Emphasis added.) 720 ILCS 5/12-3.2 (West 2004).

According to section 12-3.2(a)(1) of the Criminal Code, in order to prove a defendant guilty of

domestic battery, the State must prove that the defendant (1) intentionally or knowingly, (2) without

legal justification, (3) causes bodily harm (4) to any family or household member. 720 ILCS

5/12-3.2(a)(1) (West 2004).

Subsection (3) of section 112A-3 of the Code of Criminal Procedure, which is referenced in

section 12-3.2 of the Criminal Code, defines the term “Family or household members” and provides

that “ ‘Family or household members’ include *** persons who have or have had a dating or

engagement relationship ***." (Emphasis added.) 725 ILCS 5/112A-3 (3) (West 2004). Subsection

(3) of section 112A-3 of the Code of Criminal Procedure also provides that neither a casual

acquaintanceship nor ordinary fraternization between two individuals in business or social contexts

shall be deemed to constitute a dating relationship. 725 ILCS 5/112A-3 (3) (West 2004). In order

to determine if the defendant’s contention is correct, we review the record to determine if evidence

was presented which established that White and defendant were family or household members within

the purview of section 12-3.2 of the Criminal Code.

On appeal, “[t]he relevant inquiry is whether, viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of the

-8-

1-06-0005

crime beyond a reasonable doubt.” People v. Ward, 215 Ill. 2d 317, 322 (2005), citing People v.

Evans, 209 Ill. 2d 194, 209 (2004), and People v. Hopkins, 201 Ill. 2d 26, 40 (2002); see also People

v. Tabb, 374 Ill. App. 3d 680, 691 (2007), quoting People v. Cunningham, 212 Ill. 2d 274, 280

(2004) (“ ‘This means that [we] must allow all reasonable inferences from the record in the favor of

the prosecution’ ”). As we review the sufficiency of the evidence of a criminal conviction, we do

not retry the defendant. People v. Ward, 215 Ill. 2d 317, 322 (2005), citing People v. Evans, 209 Ill.

2d 194, 209 (2004). The defendant was convicted following a bench trial; therefore, a judge was the

trier of fact with the power to determine the credibility of witnesses and to both evaluate the

evidence and resolve any inconsistencies. People v. Doll, 371 Ill. App. 3d 1131, 1136 (2007), citing

People v. Ortiz, 188 Ill. App. 3d 506, 514 (1989). Accordingly, “ ‘[w]e will not reverse a conviction

unless the evidence is so unreasonable, improbable or unsatisfactory that it raises a reasonable doubt

of defendant's guilt.’ ” People v. Jackson, 358 Ill. App. 3d 927, 941 (2005), quoting Evans, 209 Ill.

2d at 209.

The State's case, that White and the defendant were "family or household members" because

they were involved in a "dating relationship," was based upon the following evidence: (1) White's

testimony that she had a relationship with the defendant and that she considered them to be ex-

boyfriend and ex-girlfriend; and (2) White's testimony that the relationship “lasted about a month-

and-a-half”; and (3) that they had a “sexual relationship” up to and including the day of the

altercation. Although the defendant argues that the State’s evidence was insufficient proof of a

dating relationship sufficient to qualify him as a “family or household member” as defined by

subsection (3) of section 112A-3 of the Code of Criminal Procedure, we note that there was no

-9-

1-06-0005

evidence in the record that rebutted the State’s evidence that the defendant and White had a dating

and sexual relationship.

There is no evidence in the record (1) that the defendant and White were not boyfriend and

girlfriend; (2) that White and the defendant's relationship never existed or that they only had one

date; or (3) that the defendant and White did not have a sexual relationship. Instead, the defendant

argues that his relationship with White, although having lasted for six weeks during which time he

and White had sexual intercourse, was neither serious enough nor intimate enough to constitute a

serious courtship and bring their relationship within the purview of the definition for family or

household members in subsection (3) of section 112A-3 of the Code of Criminal Procedure. 725

ILCS 5/112A-3(3) (West 2004). The defendant directs this court’s attention to the cases of People

v. Young, and Alison C. v. Westcott as authority for his argument that “ 'a "dating relationship" is

a serious courtship,' ” and “ 'a relationship that [is] more serious and intimate than casual.' ” People

v. Young, 362 Ill. App. 3d 843, 851 (2005), quoting Alison C. v. Westcott, 343 Ill. App. 3d 648, 653

(2003).

In Alison C., the State filed a petition, pursuant to the Illinois Domestic Violence Act, for

a plenary order of protection, and the defendant filed a motion to dismiss the petition. Alison C., 343

Ill. App. 3d at 649. The defendant maintained in his motion that he and the complainant had only

gone on one date and, therefore, (1) the parties were not involved in a "dating relationship," and (2)

the complainant was not a person protected by the Act. Alison C., 343 Ill. App. 3d at 650. The

Alison C. court examined the definition for “dating relationships” in section 103(6) of the Act, which

provides that “ ‘[f]amily or household members’ include *** persons who have or have had a dating

- 10 -

1-06-0005

or engagement relationship” but only if the relationship was “neither a casual acquaintanceship nor

ordinary fraternization between 2 individuals in business or social contexts.” 750 ILCS 60/103(6)

(West 2002). The court found that the parties were not engaged in a “dating relationship” because

(1) the parties had only gone on one date, and (2) the relationship was brief and not exclusive.

Alison C., 343 Ill. App. 3d at 653. The Alison C. court held that the trial court erred when it denied

the defendant’s motion to dismiss the petition for a plenary order of protection under the Act because

the parties’ relationship was not a “dating relationship” protected by the Act. Alison C., 343 Ill. App.

3d at 653.

In Young, the State filed a misdemeanor complaint against the defendant and charged him

with two counts of domestic battery and one count of criminal damage to property. Young, 362 Ill.

App. 3d at 844-45.The defendant maintained in the appeal that the State failed to prove an element

of the offense of domestic battery: that the complainant was a “family or household member.”

Young, 362 Ill. App. 3d at 844. The Young court found that the complainant and the defendant did

not have a fixed residence and resided in homeless shelters and that there was no evidence that they

had formed a “household." Young, 362 Ill. App. 3d at 850. The Young court also found that the

complainant and the defendant had a pattern of companionship and that the companionship may have

included an element of romantic interest, at least on the defendant’s part. Young, 362 Ill. App. 3d

at 852. Finally, the Young court found that section 112A-3(3) covers some but not all intimate

relationships or friendships and that the evidence was insufficient to find that the two parties had a

“serious courtship”-- an established relationship with a romantic focus. Young, 362 Ill. App. 3d at

851. Therefore, the Young court held that the parties were not “family or household members.”

- 11 -

1-06-0005

Young, 362 Ill. App. 3d at 852.

We find the Alison C. and Young cases instructive. Alison C., 343 Ill. App. 3d at 653;

Young, 362 Ill. App. 3d at 852. We are also mindful of the fact that the Alison C. court was

interpreting the words “family or household members” in the Illinois Domestic Violence Act (750

ILCS 60/103(6) (West 2004)), but the interpretation is helpful because the words “family or

household members” also appear in the domestic battery statue in the Criminal Code. See 720 ILCS

5/12-3.2(a)(1) (West 2004). Nevertheless, Alison C. teaches us that one date and a relationship that

is brief and nonexclusive do not constitute a “dating relationship.” Alison C., 343 Ill. App. 3d at

653. The Young court teaches us that the definition for “family or household members” in section

112A-3(3) does not cover intimate relationships or friendships unless the parties have an established

relationship with a romantic focus. Young, 362 Ill. App. 3d at 851.

We find that “[t]he General Assembly intended the domestic violence provisions to address

the particular problems of abuse in intimate relationships.” People v. Young, 362 Ill. App. 3d 843,

850 (2005), citing People v. Whitfield, 147 Ill. App. 3d 675, 679 (1986); see also Alison C., 343 Ill.

App. 3d at 652, citing Glater v. Fabianich, 252 Ill. App. 3d 372, 376 (1993). We also find that “it

is clear that a ‘serious courtship’ must be, at a minimum, an established relationship with a

significant romantic focus.” Young, 362 Ill. App. 3d at 851. In Young, the complaining witness

denied the existence of a dating relationship but claimed a social relationship. Young, 362 Ill. App.

3d at 845. In Alison C., the parties went on one date. Alison C., 343 Ill. App. 3d at 652. Here,

however, there were six weeks of dating coupled with sexual intercourse up to the date of the

altercation. Young, 362 Ill. App. 3d at 845; Alison C., 343 Ill. App. 3d at 652. Therefore, we find

- 12 -

1-06-0005

that the facts in this case are distinguishable from the facts in Young and Alison C.

We find that the domestic battery statute does not require that the accused and the

complaining witness be presently dating at the time of the offense, merely that they “have or have

had a dating or engagement relationship.” 725 ILCS 5/112A-3 (West 2004), cited in 720 ILCS 5/12-

3.2(a)(1) (West 2004). We also find that the relationship between White and the defendant qualifies

as a serious courtship because they dated for six weeks and continued to have sexual intercourse up

to and including the date of their altercation. We further find that six weeks of dating coupled with

sexual intercourse is neither a casual acquaintanceship nor ordinary fraternization between two

individuals in a business or a social context. When we consider the evidence in the light most

favorable to the State, we hold that the evidence established that the defendant and White's

relationship was a “dating relationship” because it was neither a casual acquaintanceship nor

ordinary fraternization between two individuals in a business or social context. Accordingly, we

hold that the defendant and the complainant were “family members” within the purview of the

domestic violence statute. 720 ILCS 5/12-3.2 (West 2004); see also People v. Johnson, 341 Ill. App.

3d 583, 588 (2003), quoting 725 ILCS 5/112A-3(3) (West 2002).

Vagueness

The defendant also argues that section 12-3.2 of the Criminal Code is unconstitutionally

vague as applied to him. Although he recognizes that shoving White is prohibited by the Criminal

Code, the defendant argues that the statute offers no guidance as to what is required for a dating

relationship to fall within the purview of the domestic violence statute. The defendant also argues

that the relationship between them is too short in duration.

- 13 -

1-06-0005

The State argues that section 12-3.2 of the Criminal Code is not unconstitutionally vague

because the statute provides a person of ordinary intelligence with fair warning that grabbing a

woman by the hair, throwing her against a car and holding her up against a glass window is

prohibited conduct. The State also argues that the defendant’s claimed dispute with the language

of the statute is a stretch because the defendant used the phrase “we’re done,” which implied the

prior existence of a relationship on which the trial court could base its finding.

The supreme court recently held that “[i]n determining whether a statute has been shown to

be unconstitutional, we begin with the presumption that all statutes are constitutional.” General

Motors Corp. v. State of Illinois Motor Vehicle Review Board, 224 Ill. 2d 1, 24 (2007), citing People

v. Waid, 221 Ill. 2d 464, 480 (2006). “The burden of rebutting that presumption is on the party

challenging the validity of the statute to demonstrate clearly a constitutional violation.” General

Motors, 224 Ill. 2d at 24, citing People v. Greco, 204 Ill. 2d 400, 406 (2003). “If reasonably

possible, a statute must be construed so as to affirm its constitutionality and validity.” General

Motors, 224 Ill. 2d at 24, citing Greco, 204 Ill. 2d at 406.

"The determination of whether a statute is void for vagueness must be made in the factual

context of each case." People v. Falbe, 189 Ill. 2d 635, 639 (2000), citing Lee v. Nationwide Cassel,

L.P., 174 Ill. 2d 540, 549 (1996), and People v. Bales, 108 Ill. 2d 182, 189 (1985). “Where, as here,

the statute does not impinge on first amendment rights, due process is satisfied if: (1) the statute's

prohibitions are sufficiently definite, when measured by common understanding and practices, to

give a person of ordinary intelligence fair warning as to what conduct is prohibited, and (2) the

statute provides sufficiently definite standards for law enforcement officers and triers of fact that its

- 14 -

1-06-0005

application does not depend merely on their private conceptions.” Falbe, 189 Ill. 2d at 640, citing

People v. Warren, 173 Ill. 2d 348, 356 (1996).

“A statute is not unconstitutionally vague if it is explicit enough to serve as a guide to those

who must comply with it.” General Motors, 224 Ill. 2d at 24, citing Ardt v. Illinois Department of

Professional Regulation, 154 Ill. 2d 138, 157 (1992). “Moreover, a statute is considered

unconstitutionally vague only if its terms are so ill-defined that the ultimate decision as to its

meaning rests on the opinions and whims of the trier of fact rather than any objective criteria or

facts.” General Motors, 224 Ill. 2d at 24, citing People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 291

(2003), and People v. Burpo, 164 Ill. 2d 261, 266 (1995). In short, “ The challenger must establish

that no set of circumstances exists under which the Act would be valid.” United States v. Salerno,

481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987), quoted in Greco, 204 Ill.

2d at 407. “Moreover, that the statute might operate unconstitutionally under some conceivable set

of circumstances is insufficient to render it wholly invalid, as we have not recognized an overbreadth

doctrine outside the limited context of the first amendment.” Greco, 204 Ill. 2d at 407, citing C.E.,

161 Ill. 2d at 211, quoting Salerno, 481 U.S. at 745, 95 L. Ed. 2d at 707, 107 S. Ct. at 2100.

The supreme court held that the domestic battery statute's prohibitions are sufficiently

definite to give a person of ordinary intelligence adequate warning of what conduct is prohibited.

People v. Wilson, 214 Ill. 2d 394, 400 (2005). While the Wilson court found that a domestic battery

is committed against a family or household member, it pointed out that both the simple battery

statute and the domestic battery statute prohibit one person from making physical contact of an

insulting or provoking nature with another person. Wilson, 214 Ill. 2d at 400, citing 720 ILCS 5/12-

- 15 -

1-06-0005

3(a), 12-3.2(a) (West 2002). The Wilson court rejected the argument that the defendant is actually

making in this case: that he was not given fair warning as to whether committing a battery against

White would be a simple battery or a domestic battery. Wilson, 214 Ill. 2d at 400. The defendant

was aware of the fact that he and White had a “dating relationship” because they dated for six weeks

and had a sexual relationship up to the date of the altercation. Therefore, we hold that the language

in the domestic violence statute and the definition for "family members" in subsection (3) of section

112A-3 of the Code of Criminal Procedure are explicit enough to serve as a guide for those who

must comply with and interpret the domestic violence statute. Wilson, 214 Ill. 2d at 400.

The defendant also argues that the brief length of his relationship with White removes their

relationship from the purview of the domestic violence statute. 720 ILCS 5/12-3.2(a) (West 2004).

Defendant's argument lacks merit. The Wilson court held that the fact the statute has no time limit

does not make the statute vague. Wilson, 214 Ill. 2d at 400-01. However, even if the defendant’s

relationship with White was of such short duration, and it was not, that it was removed from the

purview of the domestic violence statute, the defendant still violated the battery statute: the evidence

established that the defendant slapped White's face, grabbed her by the hair and pushed her into a

car. 720 ILCS 5/12-3 (West 2004). Accordingly, because the defendant and White were involved

in a "dating relationship," thereby making them "family members," the aforementioned acts bring

the defendant within the purview of both the simple battery statute and the domestic battery statute

in the Criminal Code. 720 ILCS 5/12-3, 12-3.2 (West 2004).

Ineffective Assistance of Counsel

The defendant argues that he received ineffective assistance of counsel because White was

- 16 -

1-06-0005

the only inculpatory witness, yet his counsel failed to investigate Zavala, the Dunkin’ Donuts boot

cop who may have had information that might have corroborated the defendant’s version of events.

The defendant maintains that, had his counsel investigated Zavala, there is a reasonable probability

of acquittal. Therefore, defendant argues that the failure to investigate Zavala is objectively

unreasonable and was not a sound trial strategy.

The State argues that the defendant did not receive ineffective assistance of counsel. The

State argues that the failure to investigate Zavala rests on the defendant because he was the source

of the information about Zavala. The State also argues that the defendant’s testimony contradicted

his position that his counsel knew or should have known about Zavala. Because defendant's counsel

was not informed of the potential witness, the State argues, counsel had no duty to investigate him.

The State also argues that the defendant’s position that the State’s only evidence against him hinged

on White’s testimony is disingenuous because the argument that the defendant suffered prejudice

depends on a construction of all of the evidence in the defendant’s favor. In order to prevail,

Zavala’s potential testimony would have to be accepted as credible and White’s testimony would

have to be rejected as incredible. According to the State, the defendant’s argument must fail

because, when the evidence is construed in the light most favorable to the State, the defendant cannot

demonstrate that the evidence was insufficient to support the conviction and sentence.

The law of ineffective assistance of counsel is well established. “The sixth amendment to

the Constitution ‘recognizes the right to the assistance of counsel because it envisions counsel's

playing a role that is critical to the ability of the adversarial system to produce just results.’ ” People

v. Cunningham, 376 Ill. App. 3d 298, 301 (2007), quoting Strickland v. Washington, 466 U.S. 668,

- 17 -

1-06-0005

685, 80 L. Ed. 2d 674, 692, 104 S. Ct. 2052, 2063 (1984). “An accused is entitled to ‘reasonably

effective assistance,’ and the touchstone for judging claims of ineffective assistance is whether an

attorney's conduct renders the trial results undependable.” Cunningham, 376 Ill. App. 3d at 301,

quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Strickland has been

adopted by the Illinois Supreme Court. People v. Albanese, 104 Ill. 2d 504, 526 (1984).

There are strict criteria for determining whether counsel is incompetent. People v. Houston,

226 Ill. 2d 135, 143 (2007), citing People v. Thompkins, 121 Ill. 2d 401, 447 (1988). “Under the

two-prong Strickland test for determining whether assistance of counsel has been ineffective, a

defendant must show that (1) his counsel's performance was deficient in that it fell below an

objective standard of reasonableness, and (2) the deficient performance prejudiced the defendant in

that, but for counsel's deficient performance, there is a reasonable probability that the result of the

proceeding would have been different.” Houston, 226 Ill. 2d at 144, citing People v. Evans, 209 Ill.

2d 194, 219-20 (2004), and People v. Peeples, 205 Ill. 2d 480, 512-13 (2002).

Under the deficiency prong of the Strickland test, “a defendant must overcome a strong

presumption that, under the circumstances, counsel's conduct might be considered sound trial

strategy.” Houston, 226 Ill. 2d at 144, citing Peeples, 205 Ill. 2d at 512. “[C]ounsel is afforded wide

latitude when making tactical decisions and the law presumes that counsel will faithfully fulfill his

or her role envisioned by the sixth amendment.” Cunningham, 376 Ill. App. 3d at 301, citing

Strickland, 466 U.S. at 688-89, 80 L. Ed. 2d at 693-94, 104 S. Ct. at 2064-65. Cunningham holds

that “counsel's assistance must fall ‘outside the wide range of professionally competent assistance’

considering all the circumstances.” Cunningham, 376 Ill. App. 3d at 301, quoting Strickland, 466

- 18 -

1-06-0005

U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066. Cunningham also holds that “choices of trial

strategy are virtually unchallengeable because such a choice ‘is a matter of professional judgment

to which a review of counsel's competency does not extend.’ ” Cunningham, 376 Ill. App. 3d at 301,

quoting People v. Cundiff, 322 Ill. App. 3d 426, 435 (2001); see also Strickland, 466 U.S. at 690,

80 L. Ed. 2d at 695, 104 S. Ct. at 2066.

With regard to the prejudice prong of the Strickland test, a reasonable probability that the

result would have been different is a probability that undermines confidence in the outcome.

Houston, 226 Ill. 2d at 144, citing Evans, 209 Ill. 2d at 220, and Peeples, 205 Ill. 2d at 513.

In order to prevail on a claim of ineffective assistance, a defendant must satisfy both the

deficiency prong and the prejudice prong of the Strickland test. Houston, 226 Ill. 2d at 144-45, citing

Evans, 209 Ill. 2d at 220. However, “[i]n determining whether a defendant has received ineffective

assistance of counsel, a reviewing court may review either prong first, and the court need not

consider both prongs of the standard if a defendant fails to show one prong.” Cunningham, 376 Ill.

App. 3d at 301, citing Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.

Generally, an attorney cannot be found to have made decisions based on valid trial strategy

where he or she fails to conduct a reasonable investigation, fails to interview witnesses, and fails to

subpoena witnesses. People v. Makiel, 358 Ill. App. 3d 102, 107 (2005), citing People v. Coleman,

267 Ill. App. 3d 895, 899 (1994). “Attorneys have an obligation to explore all readily available

sources of evidence that might benefit their clients.” (Emphasis added.) Makiel, 358 Ill. App. 3d at

107, citing Brown v. Sternes, 304 F.3d 677, 692 (7th Cir. 2002), citing Hall v. Washington, 106 F.3d

742, 749 (7th Cir. 1997). We also recognize that the failure to conduct an investigation and to

- 19 -

1-06-0005

develop a defense (People v. Wright, 111 Ill. 2d 18 (1986); Coleman, 267 Ill. App. 3d 895) and the

failure to present available witnesses to corroborate a defense (People v. Solomon, 158 Ill. App. 3d

432 (1987)) have been found to be ineffective assistance because defense counsel has a legal and

ethical professional obligation to explore and investigate a client's case. Makiel, 358 Ill. App. 3d

at 107, citing People v. Morris, 335 Ill. App. 3d 70, 79 (2002).

However, in order to evaluate the defendant’s claim that he received ineffective assistance

of counsel, we must begin with the general principle that a counsel's decision about whether to

present a particular witness is generally a strategic choice which cannot support a claim of ineffective

assistance of counsel. People v. Richardson, 189 Ill. 2d 401, 414 (2000), citing People v. Griffin,

178 Ill. 2d 65, 86 (1997). Despite the general rule that attorneys are required to conduct a reasonable

investigation in order for their representation to be considered to be a valid trial strategy (Makiel,

358 Ill. App. 3d at 107), we do not believe that Strickland, Albanese and their progeny extend to

require the defense counsel to read the defendant’s mind about the existence of a potentially

exculpatory witness and the potential nature of that witness’ testimony. People v. Harris, 206 Ill. 2d

293, 306 (2002) (where the defendant is the source of the evidence yet fails to inform his attorney

about it before trial, he cannot subsequently blame the attorney for failing to investigate the

evidence). We note that the defendant testified at trial that the boot cops would not let him enter

Dunkin’ Donuts. However, the defendant testified at the hearing on his second amended posttrial

motion for a finding of not guilty or a new trial that, “[he] did not know about [Zavala] until after

[White] mentioned it in this court proceedings.” The defendant also testified that, “I didn’t know

where [Zavala] worked.” We find that (1) the defendant’s argument that he did not know about the

- 20 -

1-06-0005

boot cops (Zavala) until White mentioned him during her testimony, (2) his argument that his

knowledge of the boot cops was limited to the cops preventing him from entering Dunkin’ Donuts

to take Salazar her hat, and (3) his argument that his counsel failed to conduct a reasonable

investigation is belied by the averments in the defendant’s witness’ (Zavala) affidavit. Zavala

averred in his affidavit (1) that he personally spoke to the defendant on the day of the altercation, and

(2) that he told the defendant that “he could not go inside the Dunkin’ Donuts if Ms. White was

going to follow him inside.” In light of the fact that the defendant personally spoke with Zavala on

the day of the altercation, he could have informed his attorney to conduct an investigation because

a boot cop (Zavala) was a possible witness. The aforementioned facts establish that the defendant

has failed to establish the deficiency prong of the Strickland test, therefore, we need not consider the

prejudice prong. Cunningham, 376 Ill. App. 3d at 301, citing Strickland, 466 U.S. at 697, 80 L. Ed.

2d at 699, 104 S. Ct. at 2069. Accordingly, we reject the defendant’s assertion that he received

ineffective assistance of counsel. Houston, 226 Ill. 2d at 144-45, citing Evans, 209 Ill. 2d at 220

(must satisfy both prongs of the Strickland test).

Trial Court Recollection

Next, the defendant argues that the trial court judge incorrectly recalled the evidence and

relied on her faulty recollection to the defendant’s detriment. The trial court's faulty recollection

allegedly helped form the basis for the trial court’s finding that Salazar's and White’s testimony

differed and that the difference affected the credibility of the witnesses. According to the defendant,

the trial court summed up Salazar’s testimony incorrectly and indicated that the altercation between

White and the defendant took place in front of or near the Dunkin’ Donuts. However, the altercation

- 21 -

1-06-0005

took place two stores away from the Dunkin’ Donuts. The defendant argues that this incorrect

summary of Salazar’s testimony and its resulting impact deprived him of a fair trial.

The State responds that the defendant and not the trial court incorrectly recalled Salazar’s

testimony. Although Salazar testified during her direct examination that the incident took place a

block from the Dunkin’ Donuts, she testified on cross-examination that the incident took place two

stores down the block from the Dunkin’ Donuts. The State also points out that the defendant

testified that the incident took place two or three stores down the street from the Dunkin’ Donuts

when he pushed White up against the glass window.

As previously indicated, “[i]n a bench trial, the trial court, as the trier of fact, observes the

witnesses and, thus, is responsible for judging their credibility, resolving any inconsistencies,

determining the weight to give their testimony, and drawing reasonable inferences from all the

evidence presented.” Jackson, 358 Ill. App. 3d at 941, citing People v. Steidl, 142 Ill. 2d 204, 226

(1991). As the reviewing court, “ '[w]e will not reverse a conviction unless the evidence is so

unreasonable, improbable or unsatisfactory that it raises a reasonable doubt of defendant's guilt.' ”

Jackson, 358 Ill. App. 3d at 941, quoting Evans, 209 Ill. 2d at 209.

We are not persuaded that the trial court's statement that the altercation took place in front

of or a few doors from the front of the Dunkin’ Donuts had any bearing on the trial court’s credibility

determinations or, ultimately, on the finding of defendant’s guilt. The trial court found Salazar and

the defendant to be incredible witnesses for other reasons. Salazar and the defendant were found to

be incredible based upon inconsistencies in their testimony. One such inconsistency was Salazar’s

testimony that she “did see [the defendant] touch [White] but this was after she jumped on him.”

- 22 -

1-06-0005

The defendant’s testimony contains no claim that White jumped on him. Because their testimony

contained such inconsistencies, the trial court, as trier of fact, found Salazar's and the defendant’s

testimony to be incredible and did not believe the defendant’s assertion that White struck first.

Accordingly, we find the trial court’s statement that the altercation took place in front of the Dunkin’

Donuts rather than two or three doors down to be harmless beyond a reasonable doubt. People v.

Butler, 304 Ill. App. 3d 750, 756 (1999), citing People v. Dean, 175 Ill. 2d 244, 259 (1997).

Presentencing Credit

The defendant next argues that he is entitled to receive monetary credit pursuant to section

110-14 of the Code of Criminal Procedure for the two days he spent in custody prior to being

sentenced. 725 ILCS 5/110-14 (West 2004). The State argues that the defendant is not entitled to

the credit he seeks because the legislature did not intend for similarly situated defendants to receive

a credit.

The court imposed the following three fines against this defendant: (1) a $4 criminal/traffic

conviction surcharge additional penalty pursuant to section 5-9-1(c-9) of the Unified Code of

Corrections (730 ILCS 5/5-9-1(c-9) (West 2004)); (2) a $200 domestic violence fee pursuant to

section 5-9-1.5 of the Unified Code of Corrections (730 ILCS 5/5-9-1.5 (West 2004)); and (3) a $10

domestic battery fee pursuant to section 5-9-1.6 of the Unified Code of Corrections (730 ILCS 5/5-9-

1.6 (West 2004)).

The supreme court recently examined section 110-14(a) of the Code of Criminal Procedure,

the presentencing credit statute, in People v. Jones, 223 Ill. 2d 569 (2006). Section 110-14(a) of the

Code of Criminal Procedure provides:

- 23 -

1-06-0005

“Any person incarcerated on a bailable offense who does not

supply bail and against whom a fine is levied on conviction of such

offense shall be allowed a credit of $5 for each day so incarcerated

upon application of the defendant. However, in no case shall the

amount so allowed or credited exceed the amount of the fine.” 725

ILCS 5/110-14(a) (West 2004).

Jones discusses the difference between fines and costs and draws the following distinction:

“ 'A "fine" is a pecuniary punishment imposed as part of a

sentence on a person convicted of a criminal offense. People v.

Despenza, 318 Ill. App. 3d 1155, 1157 (2001). A "cost" is a charge

or fee taxed by a court such as a filing fee, jury fee, courthouse fee,

or reporter fee. Despenza, 318 Ill. App. 3d at 1157. Unlike a fine,

which is punitive in nature, a cost does not punish a defendant in

addition to the sentence he received, but instead is a collateral

consequence of the defendant's conviction that is compensatory in

nature. People v. Terneus, 239 Ill. App. 3d 669, 672 (1992). A "fee"

is a charge for labor or services, especially professional services.

Black's Law Dictionary 629 (7th ed.1999).' ” (Emphasis in original.)

Jones, 223 Ill. 2d at 581, quoting People v. White, 333 Ill. App. 3d

777, 781 (2002).

The Jones court held that “the charge imposed by section 5-9-1(c-9) is subject to offset.”

- 24 -

1-06-0005

Jones, 223 Ill. 2d at 587; see also 725 ILCS 5/110-14(a) (West 2004) (a defendant is entitled to a

credit of $5 for each day so incarcerated provided the amount so allowed or credited shall not exceed

the amount of the fine). Accordingly, following Jones, the defendant is entitled to a credit of $10

for the two days he was incarcerated prior to sentencing. Jones, 223 Ill. 2d at 587.

Minor Traffic Ordinance Violation Fee

Finally, the defendant argues that this court should vacate the $30 minor traffic ordinance

violation fee imposed by the trial court pursuant to section 27.2a(w)(1)(E) of the Clerks of Courts

Act. 705 ILCS 105/27.2a(w)(1)(E) (West 2004). The State concedes that the defendant was charged

by misdemeanor complaint and was not charged with a minor traffic or ordinance violation. Because

the trial court erred in imposing the fee, the State does not oppose the vacatur of this fee.

Accordingly, the $30 minor traffic ordinance violation fee imposed by the trial court, pursuant to

section 27.2a(w)(1)(E) of the Clerks of Courts Act, is vacated. 705 ILCS 105/27.2a(w)(1)(E) (West

2004).

CONCLUSION

In light of the foregoing, the defendant's conviction and sentences are affirmed as modified.

Affirmed as modified.

CAMPBELL, J., and O'BRIEN, J., concur.

- 25 -