People v. Lattimore

ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Lattimore, 2011 IL App (1st) 093238

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption JAMES LATTIMORE, Defendant-Appellant.

District & No. First District, Sixth Division

Docket No. 1-09-3238

Filed September 2, 2011

Held Defendant’s conviction for aggravated battery arising from an incident in

(Note: This syllabus which he resisted a security guard who was detaining defendant for an

constitutes no part of alleged retail theft was affirmed where State proved defendant

the opinion of the court “knowingly” caused bodily harm to the guard and “struck” the guard

but has been prepared “about the body” and that the guard was a “merchant” under section 12-

by the Reporter of 4(b)(15) of the Criminal Code.

Decisions for the

convenience of the

reader.)

Decision Under Appeal from the Circuit Court of Cook County, No. 09-CR-21; the Hon.

Review Kenneth J. Wadas, Judge, presiding.

Judgment Affirmed; mittimus corrected.

Counsel on Michael J. Pelletier, Alan D. Goldberg, and Rachel Moran, all of State

Appeal Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J.Spellberg and

Brian Hodes, Assistant State’s Attorneys, of counsel), for the People.

Panel JUSTICE R. GORDON delivered the judgment of the court, with

opinion.

Presiding Justice Garcia and Justice McBride concurred in the judgment

and opinion.

OPINION

¶1 Following a bench trial, defendant James Lattimore was convicted of aggravated battery

and retail theft. 720 ILCS 5/12-4(b)(15), 16A-3(a), 16A-10(2) (West 2008). After a hearing

on aggravation and mitigation, the trial court sentenced defendant to two years of mental

health probation and assessed fines, fees, and costs in the amount of $555. Defendant filed

a posttrial motion for a new trial, which was denied. On appeal, defendant challenges only

the conviction for aggravated battery. Defendant argues, first, that the State failed to prove

beyond a reasonable doubt (1) that defendant “knowingly” caused bodily harm to a security

guard, (2) that defendant “struck” a security guard “about the body,” and (3) that the security

guard was a “merchant” pursuant to section 12-4(b)(15) of the Criminal Code of 1961. 720

ILCS 5/12-4(b)(15) (West 2008). For the following reasons, we affirm.

¶2 Second, defendant argues that the trial court erred by assessing certain fines, fees, and

costs and failing to credit defendant for days served in presentence custody. For the following

reasons, we order defendant’s fines and fees reduced by $250 from $555 to $305, and order

that his mittimus be corrected accordingly.

¶3 I. BACKGROUND

¶4 A. The Charges

¶5 The incident that resulted in the charges took place on November 25, 2008. On December

23, 2008, a grand jury indicted defendant for robbery, aggravated battery, and retail theft. The

aggravated battery count charges that defendant:

“in committing a battery, knowingly and without legal justification caused bodily

harm to James Lee, to wit: struck James Lee about the body, knowing him to be a

merchant, to wit: an employee of Family Dollar Store, who was detaining James

Lattimore for an alleged commission of retail theft, in violation of.” See 720 ILS

-2-

5/12-4(b)(15) (West 2008).

Since the retail theft count is not at issue in this appeal, we do not set it forth here.

¶6 B. Evidence At Trial

¶7 At a bench trial that commenced on September 14, 2009, the State called Tara Lynn

Jones as a witness. Jones testified that she worked as a retail assistant manager for the Family

Dollar Store on Laramie Avenue in Chicago, a retail mercantile establishment licensed to do

business in the State of Illinois. At approximately 4:30 p.m. on November 25, 2008, she was

standing in the front, inside of the store, when she observed defendant pick up some AXE

deodorant body spray and then move toward the store exit. Jones alerted her boss, Marilyn

Langford, who notified James Lee, a security guard.

¶8 Jones observed defendant as he passed the last cash register on his way to the exit

without paying for any merchandise. Jones testified that she asked defendant to return the

merchandise and defendant claimed “he didn’t have anything.” Jones was then joined by

Langford, Lee, and other store personnel at the front of the store. Jones testified defendant

then claimed that he “only had one,” and gave them a single body-spray canister. Jones

testified defendant said, “I ain’t going to jail,” and attempted to exit the store. Lee blocked

defendant’s path. Defendant then attempted “to push his way out the front door” as Lee and

other store personnel struggled with defendant and brought him into the store’s security

office. Once inside the security office, defendant continued to struggle with Lee and other

store personnel, and three more body-spray canisters fell out of his shirt. Jones testified that

she took possession of the fallen canisters and called the police.

¶9 Jones testified that defendant then attempted to leave the security office “a couple of

times,” including running toward the front exit, back into the store toward the merchandise,

and toward a back door located inside the security office. Jones was asked if anyone was

injured during the time store personnel struggled with defendant. She testified:

“JONES: I believe James Lee hurt his self trying to control or hold [defendant]

down. He got yanked and hurt his shoulder. And I heard the gentleman–the defendant

might have cut himself.

COUNSEL: Okay.

JONES: But Lee is the only one who I know for sure that got hurt.”

By the time the police arrived, Lee and another Family Dollar Store employee forced

defendant to the ground. Jones then printed a receipt for police indicating that the pretax

retail price of each body spray was $4.50, for a total of $18.

¶ 10 The State played video recordings from the Family Dollar Store’s security cameras for

the trial court. Jones described the images displayed on the recordings as they were played.

She testified that the store’s security cameras face the cash registers and the front door on the

inside of the store. There are no security cameras inside the security office or covering the

area where the deodorant products are displayed. Jones testified that these recordings show

defendant repeatedly attempting to leave the store and resisting store personnel.

¶ 11 On cross-examination, Jones admitted that she did not observe Lee become injured. She

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testified that she learned of Lee’s injury only when Lee described how he became injured

following the “battling” between Lee and defendant.

¶ 12 The State then called James Lee as a witness on its behalf. Lee testified that, on

November 25, 2008, he was employed by Metro One Security and was assigned to work at

the Family Dollar Store on Laramie Avenue. Lee wore black uniform pants, a black jersey,

and a hooded three-quarter length winter coat with the word “security” printed in large letters

on the back of the coat and “Metro Loss Prevention” on the front breast.

¶ 13 Lee testified that at approximately 4:30 p.m. he heard someone calling his name from the

front of the store. He then rushed to the front of the store and observed other Family Dollar

Store employees speaking with defendant. He then blocked defendant from moving toward

the front door “to prevent him from escaping.” Lee testified that as defendant tried to move

to the front door, “there was a little contact” between himself and defendant. He then

attempted to restrain defendant by pushing him toward the door of the security office. Lee

testified that defendant was “fighting” him. After a “tussle” and once he was assisted by

other store personnel, Lee was able to force defendant into the security office. Lee testified

that defendant would not stay in the security office and immediately left, and Lee “wrestle[d]

him back towards the [security office] door.” They continued to “wrestle” once he brought

defendant back into the security office.

¶ 14 Lee testified that defendant said “I’m not going to jail,” and attempted to leave through

the security office’s back door. Defendant’s path to the back door was blocked by

merchandise that had been stacked on top of platform carts used to transport merchandise,

known as “U-boats.” Lee testified that defendant was “damaging” the merchandise or “stock”

by “bust[ing] right into it” in his attempt to maneuver to the back door. Lee was then asked

if defendant “came into contact with” him during this encounter. Lee testified as follows:

“LEE: Yes. It was contact when I grabbed him.

COUNSEL: What kind of contact?

LEE: I grabbed hold of his sweater to pull him out of the stock because he was

damaging stock because he was damaging too much stock.

COUNSEL: What happened when he did that–when you did that. I am sorry?

LEE: I pulled him out and it was a U boat right there and he yanked from me and

that threw me into the U Boat that was in front of me and it caused me to injure my

right shoulder.

COUNSEL: So did you hit the U boat based on the defendant’s actions?

LEE: Yes.”

Lee testified he felt “excruciating pain” after his right shoulder struck the U-boat. Defendant

continued to struggle with Lee, and other store personnel helped Lee subdue defendant on

the security office floor.

¶ 15 On cross-examination, Lee admitted that he never went to the hospital or received

medical treatment for his shoulder following this incident. Lee also admitted that he did not

mention this injury in his incident report.

¶ 16 On redirect examination, Lee testified that the Family Dollar Store filed a complaint on

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November 25, 2008, for battery and retail theft with the police, and the battery referred to the

shoulder injury Lee sustained during the incident with defendant. Lee testified that the injury

was not caused by Lee’s grabbing defendant, but because of defendant’s reaction to Lee’s

grabbing.

¶ 17 The State introduced the Family Dollar Store’s security video recording from November

25, 2008, photographs of the merchandise found on defendant, the receipt created by Jones,

and a certified statement of defendant’s prior retail theft conviction on February 2, 2006,

referred to as case number 05-C4-41377-01. These exhibits were offered into evidence

without objection. The State then rested.

¶ 18 Defendant then moved for a directed finding of not guilty on the robbery and aggravated

battery charges, but not on the retail theft charge. The trial court granted defendant’s motion

with respect to the robbery charge, since defendant did not take the property from Lee by use

of force or by threatening the imminent use of force. With respect to the aggravated battery

charge, defendant argued that the State presented testimony that Lee put “his hands on”

defendant and then they fell, but failed to prove that defendant “stuck Mr. Lee about the

body” in a manner consistent with the “battery that is charged” in the indictment. The trial

court denied defendant’s motion with respect to the aggravated battery charge.

¶ 19 Defendant exercised his right not to testify on his own behalf, called no witnesses, and

rested. In defendant’s closing argument, the defense argued that the State failed to prove that

defendant had the intent to make physical contact with Lee. Defendant also argued that there

was no “strike” as is specified in the indictment, but only a “yanking, falling down.”

¶ 20 In the State’s closing argument, the prosecution argued that defendant then “pull[ed]” Lee

into the U-boat when Lee was injured. Defendant was “continually wrestling, tussling,

throwing down merchandise, climbing over boxes, damaging merchandise to make good on

[his] escape when security officers and store personnel had been trying to subdue” him for

“several minutes.” The State argued it was reasonable for defendant to know during this

struggle that “someone can get injured,” and by “yanking forward,” defendant caused Lee

to “strike” his shoulder. Although the State admitted that there was no testimony that

defendant “in a conventional way took a fist and struck” Lee, the State argued that

defendant’s struggle with Lee caused Lee’s injury and forced Lee’s body against the U-boat.

Specifically, the prosecution stated that defendant’s “reaction to being grabbed *** caused

Lee to fall into the U-Boat.”

¶ 21 The trial court then found defendant guilty of aggravated battery and retail theft. The trial

court noted that defendant was “charged with striking James Lee about the body which didn’t

actually happen,” and explained its finding as follows:

“THE COURT: The defendant on three separate occasions attempted to, I guess

you could say, resist the detention by the security guards and store personnel in a

violent manner using force, attempting to leave the room, resisting, going into the

room and how could he not know that there was a great risk that someone was going

to get hurt.

Back and forth. Back and forth. And these three separate attempts to get away,

he had to have known that somebody could get hurt, including himself. He could get

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hurt himself because he was outnumbered with the police on the way.

I know that the charge, the indictment reads: Struck James Lee about the body.

I believe he knew that James Lee was personnel from the store, an employee of

Family Dollar, who again was being detained evidenced by his statement that he did

not want to go back to jail, that indicates knowledge.

And in the course of his attempt to leave on, at least the third occasion when Lee

tried to bring him in, he lurched forward, causing Lee to be struck about the body so

he caused it.”

¶ 22 C. Posttrial Proceedings

¶ 23 On October 14, 2009, defendant filed a posttrial motion for a new trial arguing that the

evidence failed to establish that defendant (1) “struck” Lee, as stated in the indictment, and

(2) intentionally or knowingly caused bodily harm to Lee when defendant pulled Lee into the

U-boat as they both fell. On November 5, 2009, the trial court heard arguments on

defendant’s motion and denied the motion, stating “I have rethought the issue, and I think

I was correct in my initial assessment, and I will stand on my original ruling.”

¶ 24 The trial court proceeded to sentencing and heard factors on aggravation and mitigation.

The State argued that this was defendant’s eleventh felony and that defendant had been found

guilty of aggravated battery of an emergency response person, drug charges, robberies, armed

robberies, and five other retail thefts. The State requested that defendant be sentenced toward

the “higher end” of the maximum 10-year sentencing range. In mitigation, defendant

submitted a letter from himself and a “Mental Health Probation” report, stating that

defendant would be eligible for services from the “Mental Health Unit of the Adult Probation

Department” if he was placed on probation. The trial court sentenced defendant to 2 years

of mental health probation and credited him with 341 days of time served in the Cook

County department of corrections.

¶ 25 The trial court then assessed fines, fees, and costs in the amount of $555, including a $20

“Preliminary Hearing-State’s Attorney” fee pursuant to section 4-2002.1(a) of the Counties

Code (55 ILCS 5/4-2002.1(a) (West 2008)); a $200 DNA analysis assessment pursuant to

section 5-4-3(j) of the Unified Code of Corrections (730 ILCS 5/5-4-3(j) (West 2008)); a $25

court services fee pursuant to section 5-1103 of the Counties Code (55 ILCS 5/5-1103 (West

2008)); and a $30 Children’s Advocacy Center fee pursuant to section 5-1101(f-5) of the

Counties Code (55 ILCS 5/5-1101(f-5) (West 2008)).

¶ 26 This timely appeal follows.

¶ 27 II. ANALYSIS

¶ 28 On this direct appeal, defendant contests his conviction for aggravated battery, but not

his conviction for retail theft. Defendant argues, first, that the State failed to prove beyond

a reasonable doubt that (1) defendant “knowingly” caused bodily harm to Lee, (2) defendant

“struck” Lee “about the body,” and (3) contests that Lee was a “merchant” pursuant to

section 12-4(b)(15) of the Criminal Code of 1961 (720 ILCS 5/12-4(b)(15) (West 2008)). For

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the following reasons, we affirm.

¶ 29 Second, defendant argues that the trial court erred by assessing certain fines, fees, and

costs and failing to credit defendant for days served in presentence custody against the fines

imposed as part of his sentence. For the following reasons, we modify the mittimus by

ordering defendant’s fines and fees to be reduced by $250 from $555 to $305.

¶ 30 A. Sufficient Evidence of Aggravated Battery

¶ 31 1. Standard of Review

¶ 32 Initially, we must determine the appropriate standard of review. Defendant argues that

we should review de novo whether his conduct met the statutory definition of aggravated

battery under section 12-4(b)(15) because the facts of this case are not in dispute. People v.

Smith, 191 Ill. 2d 408, 411 (2000) (where “the facts are not in dispute, defendant’s guilt is

a question of law, which we review de novo”). The State argues that we should follow the

standard of review formulated in Jackson v. Virginia, 443 U.S. 307 (1979), by determining

the sufficiency of the evidence in supporting a conviction.

¶ 33 The United States Supreme Court held in Jackson that, when considering whether the

evidence is sufficient to sustain a conviction, a reviewing court 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.”

(Emphasis in original.) Jackson, 443 U.S. at 319; People v. Cunningham, 212 Ill. 2d 274,

278 (2004); People v. Collins, 106 Ill. 2d 237, 261 (1985).

¶ 34 The Illinois Supreme Court has “adopted the Jackson formulation of the standard of

review for claims that the evidence was insufficient to sustain a conviction.” Cunningham,

212 Ill. 2d at 278-79. “The Jackson standard applies in all criminal cases, regardless of the

nature of the evidence.” Cunningham, 212 Ill. 2d at 279. In applying this standard, we “must

allow all reasonable inferences from the record in favor of the prosecution.” Cunningham,

212 Ill. 2d at 280. “[O]ur function is not to retry the defendant.” People v. Sutherland, 223

Ill. 2d 187, 242 (2006). We will not reverse a criminal conviction, “unless the evidence is so

improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.”

Collins, 106 Ill. 2d at 261; People v. Beauchamp, 241 Ill. 2d 1, 8 (2011); People v. Vriner,

74 Ill. 2d 329, 342 (1978); People v. Manion, 67 Ill. 2d 564, 578 (1977); People v. Bybee,

9 Ill. 2d 214, 221 (1956). For the following reasons, we agree with the State that the Jackson

standard applies.

¶ 35 Although defendant argues that the facts are uncontested, he also argues his behavior is

“more indicative of recklessness than of knowing conduct.” Defendant’s argument

challenges the inferences that the trial court drew from the evidence presented at trial.

Determinations of the credibility of witnesses, the weight to be given to their testimony, and

the reasonable inferences to be drawn from the evidence are responsibilities of the trier of

fact. People v. Brisbon, 106 Ill. 2d 342, 360 (1985). An inference is a “factual conclusion

that can rationally be drawn by considering other facts.” People v. Funches, 212 Ill. 2d 334,

340 (2004). If divergent inferences could be drawn from undisputed facts, a question of fact

remains. People v. McDonald, 168 Ill. 2d 420, 447 (1995); In re Marriage of Kneitz, 341 Ill.

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App. 3d 299, 303 (2003); People v. Cardamone, 232 Ill. 2d 504, 517 (2009) (defendant’s

intent is a “question of fact”); People v. Willis, 170 Ill. App. 3d 638, 641 (1988) (evidence

created an “issue of fact” as to whether the defendant acted knowingly or recklessly). If the

evidence presented is “capable of producing conflicting inferences, it is best left to the trier

of fact for proper resolution.” McDonald, 168 Ill. 2d at 447.

¶ 36 Therefore, we decline to honor defendant’s request to apply a de novo standard of review,

since defendant contests the inferences drawn from the evidence about his mental state,

which presents disputed questions of fact. People v. Stewart, 406 Ill. App. 3d 518, 525

(2010) (no de novo review where defendant challenged “the inferences that can be drawn

from the evidence” by claiming the evidence failed to establish he acted “knowingly”);

People v. Hinton, 402 Ill. App. 3d 181, 183 (2010) (no de novo review where defendant

“contest[ed] the inferences that can be drawn from the evidence” by claiming he had no

actual knowledge); People v. Moore, 365 Ill. App. 3d 53, 58 (2006) (no de novo review

because the element of knowledge is a “question of fact” and where “conflicting inferences

could be drawn from the undisputed but circumstantial evidence *** questions of fact rather

than law are presented”).

¶ 37 However, we do apply a de novo standard of review to the question of whether the

security guard qualified as a “merchant” under section 12-4(b)(15). De novo consideration

means we perform the same analysis that a trial judge would perform. Khan v. BDO

Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 38 2. Elements of Aggravated Battery

¶ 39 A person commits a battery if he or she, “intentionally or knowingly without legal

justification,” causes bodily harm or makes physical contact of an insulting or provoking

nature. 720 ILCS 5/12-3 (West 2008). A person commits aggravated battery if he or she

“[k]nowingly and without legal justification and by any means causes bodily harm to a

merchant who detains the person for an alleged commission of retail theft.” 720 ILCS 5/12-

4(b)(15) (West 2008) (aggravated battery); 720 ILCS 5/16A-5 (West 2008) (retail theft). A

merchant is “an owner or operator of any retail mercantile establishment or any agent,

employee, lessee, consignee, officer, director, franchisee or independent contractor of such

owner or operator.” 720 ILCS 5/16A-2.4 (West 2008).

¶ 40 On appeal, defendant does not dispute that: (1) he acted without legal justification; (2)

he made physical contact with Lee; (3) the contact resulted in bodily harm to Lee; and (4) he

was detained for an alleged commission of retail theft under section 16A-5 of the Criminal

Code of 1961 (720 ILCS 5/16A-5 (West 2008)).1

1

Lee’s failure to seek medical attention was not argued by defendant. “[E]ven though a

reviewing court has the power to raise unbriefed issues, it should refrain from doing so when it

would have the effect of transforming the court’s role from that of jurist to advocate.” People v.

Givens, 237 Ill. 2d 311, 328 (2010).

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¶ 41 3. “Knowingly” Cause Bodily Harm

¶ 42 The State must prove, as an essential element of battery, that defendant’s conduct was

knowing or intentional. People v. Robinson, 379 Ill. App. 3d 679, 684-85 (2008); People v.

Begay, 377 Ill. App. 3d 417, 421 (2007) (“State must prove defendant’s intent” in

committing aggravated battery). Defendant argues that his conduct was “more indicative of

recklessness” and the State did not prove beyond a reasonable doubt that defendant acted

“knowingly.”

¶ 43 Statutory law defines the terms at issue here: intentionally, knowingly, and recklessly.

A person “acts intentionally” if the “conscious objective or purpose is to accomplish [the]

result.” 720 ILCS 5/4-4 (West 2008). A person “acts knowingly” if “he is consciously aware

that his conduct is of such nature” that it is “practically certain” to cause the result proscribed

by the offense. 720 ILCS 5/4-5(a), (b) (West 2008); People v. Phillips, 392 Ill. App. 3d 243,

258-59 (2009); People v. Moore, 358 Ill. App. 3d 683, 688 (2005); People v. Psichalinos,

229 Ill. App. 3d 1058, 1067 (1992). In contrast, a person “acts recklessly” if “he consciously

disregards a substantial and unjustifiable risk that *** a result will follow.” 720 ILCS 5/4-6

(West 2008). Recklessness is a “ ‘less culpable mental state’ ” than knowledge, and evidence

of recklessness is insufficient to prove that a person acted knowingly. People v. Fornear, 176

Ill. 2d 523, 531 (1997) (quoting People v. Spears, 112 Ill. 2d 396, 408 (1986)).

¶ 44 Whether a person acted intentionally or knowingly with respect to bodily harm resulting

from one’s actions is, due to its very nature, often proved by circumstantial evidence, rather

than by direct proof. Begay, 377 Ill. App. 3d at 421; People v. Barnes, 364 Ill. App. 3d 888,

896 (2006); People v. Hall, 273 Ill. App. 3d 838, 842 (1995); People v. Lovelace, 251 Ill.

App. 3d 607, 620 (1993). Intent may be inferred (1) from the defendant’s conduct

surrounding the act and (2) from the act itself. Begay, 377 Ill. App. 3d at 421-22 (intent could

be inferred from defendant’s conduct immediately prior to the battery); Barnes, 364 Ill. App.

3d at 896 (intent could be inferred from the nature of the act itself); People v. Bodeman, 105

Ill. App. 3d 39, 45 (1982). It is not necessary that a defendant intended the particular injury

or consequence that resulted from his conduct. People v. Hickman, 9 Ill. App. 3d 39, 44

(1973); People v. Allen, 117 Ill. App. 2d 20, 28 (1969). If a defendant “in the commission

of a wrongful act commits another wrong 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 probable

consequence,” a defendant “acting with a wrongful intent is responsible for the unintended

wrong.” People v. Isunza, 396 Ill. App. 3d 127, 132 (2009); Hickman, 9 Ill. App. 3d at 44;

Allen, 117 Ill. App. 2d at 28.

¶ 45 In the case at bar, we cannot say that the trial court erred in finding that defendant acted

knowingly beyond a reasonable doubt. Although defendant argues that his actions amounted

only to “a mere attempt to disengage,” his interactions with Family Dollar Store personnel

consisted of more than a single act of “yank[ing] away.” Defendant repeatedly attempted to

leave the store and, in the process, repeatedly struggled with store personnel. Once store

personnel confronted defendant about exiting the store with merchandise he had not paid for,

he attempted “to push his way out the front door” of the store. He then struggled with store

personnel as they forced him into the store’s security office.

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¶ 46 Defendant continued to struggle with store personnel once inside the security office.

Witnesses testified that, over the next few minutes, defendant was “fighting,” “tussel[ing],”

and “wrestling” with store personnel in an effort to leave. After several failed attempts to

leave, defendant attempted to “bust” through merchandise that blocked an exit in the security

office. Lee attempted to stop defendant by grabbing his sweater. Defendant then “yanked

from Lee,” which “threw him” into a U-boat in the security office. In light of defendant’s

repeated efforts to leave and his knowledge that each of these attempts were followed by

struggles with store personnel, we find that a rational trier of fact could have found that

defendant was consciously aware that his conduct was practically certain to cause bodily

harm to one of the store personnel. A rational trier of fact could have found that, by engaging

in repeated struggles with the store personnel, defendant increased the likelihood that

someone would be injured so that it became practically certain someone would be injured.

¶ 47 Defendant argues that the facts of this case are similar to Willis, which defendant argues

holds that “[a]ctions such as wrestling, kicking, and flailing about are evidence of

recklessness, rather than knowing conduct.” In Willis, a campus public safety officer arrived

at the scene of an incident between the defendant and several students. Willis, 170 Ill. App.

3d at 639. As the officer attempted to escort the defendant to the campus security office, the

defendant shoved the officer “into [an] elevator and began wrestling with him.” Willis, 170

Ill. App. 3d at 639. During this “struggle,” the officer “felt pain in his groin.” Willis, 170 Ill.

App. 3d at 639. The defendant attempted to leave the elevator, but “fell and kicked” the

officer again. Willis, 170 Ill. App. 3d at 639.

¶ 48 At trial, the officer and a student involved in the original incident testified during cross-

examination that the defendant “had been wild and flailing about” when the officer was

struck in the groin. Willis, 170 Ill. App. 3d at 639-40. The defendant requested that the trial

court tender instructions to the jury for reckless conduct. Willis, 170 Ill. App. 3d at 640. The

trial court refused, and the defendant was convicted of two counts of aggravated battery and

one count of resisting a peace officer. Willis, 170 Ill. App. 3d at 639. On appeal, the

reviewing court held that the trial court erred in failing to give the requested instruction on

the lesser-included offense of reckless conduct, since “a defendant is entitled to a tendered

instruction on a lesser included offense if there is any evidence fairly tending to bear upon

it.” Willis, 170 Ill. App. 3d at 641. The trial court found that the testimony that defendant had

been “ ‘wild and flailing about’ ” was “sufficient to create an issue of fact as to whether the

defendant acted ‘knowingly’ or ‘recklessly.’ ” Willis, 170 Ill. App. 3d at 641.

¶ 49 We find the case at bar distinguishable from Willis because, first, the standard of review

is different. Here we inquire, after reviewing the evidence in the light most favorable to the

State, whether any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Cunningham, 212 Ill. 2d at 278;

Collins, 106 Ill. 2d at 261. Second, Willis was a jury case. Since the jury was the trier of fact,

it was within its purview to decide whether the defendant acted knowingly or recklessly. By

contrast, in Willis, the appellate court inquired whether there was any evidence tending to

bear upon the defendant’s claim. Willis, 170 Ill. App. 3d at 641. In Willis, the appellate court

found that a jury could have believed defendant acted recklessly based on the evidence. By

contrast, in the case at bar, the trial court considered and rejected defendant’s argument that

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the evidence suggested that defendant acted recklessly, rather than knowingly. We cannot say

that the trial court acted irrationally in finding defendant acted knowingly based on

defendant’s repeated struggles with store personnel following his repeated escape attempts.

¶ 50 Defendant also cites three cases in which reviewing courts found a defendant’s conduct

during the course of an escape was only reckless. We find these cases distinguishable from

the case at bar.

¶ 51 The first case that defendant cites is People v. Belk, 203 Ill. 2d 187 (2003). In Belk, the

defendant was pursued by police after he stole a van. Belk, 203 Ill. 2d at 189. The defendant

traveled at over 100 miles per hour in a highly populated area where the posted speed limit

was 30 miles per hour. Belk, 203 Ill. 2d at 190. The defendant crashed into the rear of another

vehicle and both occupants died as a result of the impact. Belk, 203 Ill. 2d at 190. The

defendant was convicted of two counts of felony murder and one count of aggravated

possession of a stolen motor vehicle. Belk, 203 Ill. 2d at 191. The defendant appealed,

arguing that aggravated possession of a stolen motor vehicle was not an enumerated forcible

felony under the felony-murder statute and that his conviction should be reduced to reckless

homicide. Belk, 203 Ill. 2d at 191.

¶ 52 The Illinois Supreme Court in Belk held that, to qualify as a forcible felon under the

felony-murder statute, a defendant must have “contemplated that the use of force or violence

against an individual might be involved and that they were willing to use such force *** in

order to make their escape.” (Emphasis in original). Belk, 203 Ill. 2d at 196. The court held

that “there [was] no evidence that either Belk or his accomplice was armed, and no evidence

that they contemplated and were willing to use force or violence against an individual to ***

escape.” Belk, 203 Ill. 2d at 196. There was also “no evidence that Belk contemplated that

striking another vehicle might be necessary to accomplish his escape.” Belk, 203 Ill. 2d at

196. Therefore, the court held that aggravated possession of a stolen motor vehicle is not a

forcible felony for the felony-murder statute, since the evidence did not suggest that the

defendant “contemplated that the use of force *** against an individual might be involved

in attempting to elude police.” Belk, 203 Ill. 2d at 198.

¶ 53 In the case at bar, the applicable legal standard is also different from the standard applied

in Belk. Here, the question is whether defendant’s conduct shows that he was “consciously

aware that his conduct is of such nature” that it was “practically certain” to “cause[ ] bodily

harm to a merchant.” 720 ILCS 5/4-5(a), (b) (West 2008); 720 ILCS 5/12-4(b)(15) (West

2008). In contrast, the question for the Belk court was whether the defendant “contemplated

*** the use of force” and was “willing to use such force” to make his escape. (Emphasis

omitted.) Belk, 203 Ill. 2d at 196. Unlike in Belk, defendant’s failure to contemplate that the

use of force might be necessary to accomplish his escape does not mean he could not have

acted knowingly.

¶ 54 Defendant also argues that the Belk court “held that defendant was merely reckless

because, though he was aware his actions ‘might’ involve force of [sic] threat of force, there

was no evidence he knew his actions were practically certain to cause harm.” However, the

Belk court was not faced with the question of whether Belk’s conduct was practically certain

to cause harm pursuant to section 4-5(b) of the Criminal Code of 1961 (720 ILCS 5/4-5(b)

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(West 2008)). The court analyzed only whether “defendant’s knowledge that his actions

might involve the threat or use of force” was sufficient “to make a felony a forcible felony”

under the felony-murder statute. (Emphasis in original.) Belk, 203 Ill. 2d at 197. Therefore,

the analysis in Belk is not applicable to this case.

¶ 55 The second case that defendant cites is People v. Schmidt, 392 Ill. App. 3d 689 (2009).

In Schmidt, the defendant was driving a stolen vehicle when he was approached at a stoplight

by a police officer. Schmidt, 392 Ill. App. 3d at 693. The officer told the defendant to stop

the vehicle, but the defendant sped away, hitting the officer’s left forearm with his driver’s

side-view mirror. Schmidt, 392 Ill. App. 3d at 693. As the defendant drove away, he lost

control of the vehicle and struck a family that was crossing the street, killing one person and

injuring the four other family members. Schmidt, 392 Ill. App. 3d at 691, 694. The defendant

was convicted of felony murder, aggravated possession of a stolen motor vehicle, and

aggravated battery of the officer and the four family members. Schmidt, 392 Ill. App. 3d at

691.

¶ 56 On appeal, we reversed the defendant’s felony-murder conviction. In accordance with

Belk, we held that the “[m]ost telling fact is that [the] defendant *** was unarmed,” which

showed he did not contemplate that the use of force “might be necessary in order for him to

accomplish his escape” from the officer. (Internal quotation marks omitted.) Schmidt, 392

Ill. App. 3d at 699. We also reversed the defendant’s conviction for aggravated battery of the

four surviving family members because “defendant attempted to slow down but failed

because he was driving too fast.” Schmidt, 392 Ill. App. 3d at 706. The defendant was not

“consciously aware that he was practically certain” to hit someone considering he did not

drive through a crowded area and only drove at a “very high rate of speed” for “a couple of

blocks.” (Internal quotation marks omitted.) Schmidt, 392 Ill. App. 3d at 705-07. However,

we affirmed the defendant’s conviction for aggravated battery of the officer. The officer was

so close to the defendant’s vehicle that the defendant was consciously aware that he was

practically certain to hit the officer with his vehicle when he sped away. Schmidt, 392 Ill.

App. 3d at 702-03.

¶ 57 In the case at bar, defendant’s aggravated battery of Lee is more similar to the battery of

the officer than the battery of the four surviving family members in Schmidt. Here, defendant

was outnumbered by store personnel, knew the police were on their way, and continued to

attempt to leave the premises. Unlike the battery of the family members in Schmidt,

defendant did not merely lose control during his effort to leave. Instead, defendant knew that

he would struggle with store employees during each attempt. Defendant “yanked” away from

Lee to continue to leave, which is comparable to the Schmidt defendant’s decision to speed

away from the officer. Lee was so close to defendant, as the officer was to the Schmidt

defendant, that it was practically certain he would be injured when defendant “yanked” away

from him.

¶ 58 The third escape case defendant cites is In re T.A.B., 181 Ill. App. 3d 581 (1989). In

T.A.B., the defendant, a minor, was convicted of criminal damage to property after he took

his foster father’s vehicle, drove 70 miles per hour, and clipped the bumper of another

vehicle before hitting a telephone pole. T.A.B., 181 Ill. App. 3d at 583-84. The passenger in

the defendant’s vehicle testified that when defendant observed the other vehicle, he

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attempted to shift gears to slow down but was unable to do so. T.A.B., 181 Ill. App. 3d at

584. He then hit the brakes and the tires locked. T.A.B., 181 Ill. App. 3d at 584.

¶ 59 On appeal, the defendant argued that the State failed to prove beyond a reasonable doubt

that he acted “knowingly” when he damaged the vehicles. The appellate court held, that

although the defendant was driving at a “highly excessive” rate of speed during his “joyriding

escapade[ ],” “it cannot be said that he was consciously aware that he was practically certain

to damage the two automobiles in question as a result.” T.A.B., 181 Ill. App. 3d at 585, 586.

The defendant did not deliberately damage either, and although “traveling 70 miles per hour

on a street with a speed limit of 35 miles per hour would substantially increase one’s chance

of becoming involved in an accident, it would not make such an occurrence a practical

certainty.” T.A.B., 181 Ill. App. 3d at 585. Therefore, the defendant’s conduct demonstrates

that he may have been negligent or reckless, but not that he knowingly damaged either

vehicle. T.A.B., 181 Ill. App. 3d at 585.

¶ 60 Unlike T.A.B., defendant in the case at bar was not on a “joyriding escapade,” but was

attempting to escape from store personnel after committing retail theft. Furthermore, the

defendant in T.A.B. failed to gain control of his vehicle after attempting to shift gears and

hitting the brakes. Here, defendant made no effort, in essence, to shift gears or hit the brakes.

He knew that each attempted escape was followed by struggles with store staff, which means

that he knew that he increased the potential for harm by repeatedly attempting to escape.

While we agree with defendant that he did not “flee at high rates of speed through heavily

populated areas in a potentially deadly vehicle” like the defendants in Belk, Schmidt, and

T.A.B., these cases are legally and factually distinguishable from defendant’s repeated

attempts to leave the Family Dollar Store.

¶ 61 The State argues that the facts of this case are similar to People v. Rickman, 73 Ill. App.

3d 755 (1979), in which the defendant was convicted of two counts of aggravated battery.

Rickman, 73 Ill. App. 3d at 756. Defendant argues that Rickman was wrongly decided. In

Rickman, a retail store security officer confronted the defendant, believing he had taken a

pair of jeans without paying for them. Rickman, 73 Ill. App. 3d at 757. The defendant

returned the pants and the security officer grabbed him. Rickman, 73 Ill. App. 3d at 757. The

defendant escaped from the security officer and fled, but he stopped running after the officer

told him to stop. Rickman, 73 Ill. App. 3d at 757. The defendant then struggled with the

security officer to resist his efforts to place the defendant in handcuffs. Rickman, 73 Ill. App.

3d at 757. Another security officer joined them and handcuffed one of the defendant’s wrists.

Rickman, 73 Ill. App. 3d at 757. During the struggle to attach the handcuffs to the

defendant’s other wrist, the defendant fell on top of one of the security officers, fracturing

his ankle. Rickman, 73 Ill. App. 3d at 757. The defendant then stood up and continued to

struggle with the other security officer by “shoving, hitting, and kicking” him until he

fractured the officer’s leg. Rickman, 73 Ill. App. 3d at 758.

¶ 62 On appeal, the defendant argued that trial court erred in finding that he was guilty beyond

a reasonable doubt of knowingly causing great bodily harm to the officers, since “[h]e was

attempting to escape, not harm” the security officer. Rickman, 73 Ill. App. 3d at 759. The

appellate court affirmed both counts of battery because, “the State need only show that

[defendant] knowingly scuffled with [the officer] and that [the officer] received great bodily

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harm as a result of the scuffle.” Rickman, 73 Ill. App. 3d at 760. “That the defendant did not

intend to break [the officer’s] ankle is immaterial; he did intend to scuffle with [the officer]

and he must accept responsibility for the result of the scuffle.” Rickman, 73 Ill. App. 3d at

760. The appellate court further held that “[a]nyone who engages in a scuffle must be

deemed to be aware that someone may be injured as a result.” Rickman, 73 Ill. App. 3d at

760.

¶ 63 We agree with the State that the facts of the case at bar are similar to Rickman. Like

Rickman, defendant was accused of retail theft and was confronted by store personnel. Both

defendants attempted to escape and then struggled with store personnel after they were

caught. Both defendants engaged in multiple attempts to escape and resisted efforts of

security officers to restrain them by struggling and fighting with them. In Rickman, the

defendant injured a security officer when he fell on him during a struggle. Here, the

defendant injured a security officer when he “yanked” from the officer, which “threw” him

into a U-boat in the security office. Defendants in both cases knowingly struggled with store

personnel and “must accept responsibility for the result of the scuffle.” In each case, it was

practically certain that someone would be hurt during defendants’ repeated struggles and

fights with store personnel. We decline to find that Rickman was wrongly decided.

¶ 64 Therefore, reviewing the evidence in the light most favorable to the prosecution, we find

that the trial court could have rationally found that defendant acted knowingly beyond a

reasonable doubt.

¶ 65 B. “Struck” About the Body

¶ 66 Defendant argues that the State failed to meet its burden of proving every element as

charged in the indictment because it did not introduce evidence that defendant “struck” Lee

“about the body.” The State argues that defendant’s claim is really a variance claim, rather

than a “failure of proof” argument, and we agree.

¶ 67 The State “must prove the essential elements of the charging instrument.” People v.

Rothermel, 88 Ill. 2d 541, 544 (1982). For a variance between the charging instrument and

the proof at trial to be fatal, the difference “must be material and be of such character as may

mislead the defendant in making his or her defense, or expose the defendant to double

jeopardy.” People v. Maggette, 195 Ill. 2d 336, 351 (2001). Each indictment must state “ ‘the

name of the accused, the name, date and place of the offense, cite[ ] the statutory provision

alleged to have been violated and set forth in the language of the statute the nature and

elements of the offense charged.’ ” People v. Collins, 214 Ill. 2d 206, 219 (2005) (quoting

People v. Simpkins, 48 Ill. 2d 106, 111 (1971)). “[I]mmaterial matters, or matters which may

be omitted from an indictment without rendering it insufficient or doing damage to the

material averments, may be regarded as surplusage.” People v. Figgers, 23 Ill. 2d 516, 519

(1962); People v. Crawford, 23 Ill. 2d 605, 607 (1962). If the essential elements of an offense

are properly charged but the manner in which the offense is committed is incorrectly alleged,

the error is one of form. People v. Nathan, 282 Ill. App. 3d 608, 611 (1996); Simpkins, 48

Ill. 2d at 111.

¶ 68 We agree with the State that the difference between the proof at trial and the charges

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specified in the indictment amounts to a variance. Sufficiency of the evidence is not at issue

here because the evidence was sufficient to prove defendant guilty of aggravated battery. The

evidence conformed to the indictment insofar as the indictment charged defendant with

violating section 12-4(b)(15), which makes it unlawful to “[k]nowingly and without legal

justification and by any means cause[ ] bodily harm to a merchant who detains the person for

an alleged commission of retail theft.” 720 ILS 5/12-4(b)(15) (West 2008). The indictment

went on to specify that defendant “to wit: struck James Lee about the body.” The trial court

noted that defendant was “charged with striking James Lee about the body which didn’t

actually happen,” but found that defendant “caus[ed] Lee to be struck about the body.” The

issue before us is whether the variance between the proof at trial and the indictment’s charge

is fatal.

¶ 69 Defendant argues that the indictment must set forth “the nature of how the [aggravated

battery] occurred,” because a difference between the proof at trial and the indictment on this

element is material. However, “[w]hen a crime [such as aggravated battery] can be

committed by several acts *** a variance between the act named in the indictment and the

act proved will not be fatal.” People v. Burdine, 362 Ill. App. 3d 19, 24 (2005) (finding no

variance where the proof at trial showed defendant committed aggravated battery when he

“ ‘bit’ ” the victim but the indictment specified that defendant “ ‘struck’ ” the victim); People

v. Coleman, 49 Ill. 2d 565, 571 (1971) (holding that the means or manner by which defendant

committed murder was not an essential part of the indictment); Simpkins, 48 Ill. 2d at 110-11

(holding the variance was not fatal where the complaint charged that defendants had

“ ‘disturb[ed] the peace by firing a revolver’ ” but the State proved they had disturbed the

peace by “ ‘participating in a gang fight’ ” because the “ ‘particular means by which each

defendant participated in the creation of the disturbance was not critical’ ”); Nathan, 282 Ill.

App. 3d at 611 (State’s amendment to the indictment to “change[ ] the manner in which

defendant committed” (emphasis omitted) aggravated battery “did not alter any essential

element of the indictment”).

¶ 70 Here, the State’s indictment charged that defendant “struck” Lee about the body. The

State proved at trial that defendant caused Lee to be “struck” about the body. Burdine, 362

Ill. App. 3d at 24 (“[o]ne may strike another with a foreign object”). The difference between

whether defendant struck Lee about the body or caused Lee to be struck about the body

relates to the manner in which defendant caused bodily harm to Lee. Defendant has not

shown us how a variance between the indictment and the proof on trial about the manner in

which this aggravated battery was committed is either material or inadequate notice of the

charge. Therefore, we cannot say that this difference was material.

¶ 71 Furthermore, defendant has not been exposed to double jeopardy. Defendant’s indictment

specified the “ ‘name of the accused, the name, date, and place of the offense,’ ” “ ‘the

statutory provision alleged to have been violated,’ ” and “ ‘set forth in the language of the

statute the nature and elements of the offense charged.’ ” Collins, 214 Ill. 2d at 219 (quoting

Simpkins, 48 Ill. 2d at 111). “If any future prosecution were attempted, prior prosecution on

the same facts could be proved by resort to the record.” People v. Jones, 245 Ill. App. 3d 674,

677 (1993); People v. Johnson, 65 Ill. 2d 332, 339 (1976).

¶ 72 Therefore, we cannot say that the variance between the indictment and the proof at trial

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about the manner in which defendant caused bodily harm to Lee was either material or would

expose defendant to double jeopardy.

¶ 73 C. Private Security Officer Qualifies as a “Merchant”

¶ 74 Defendant argues that a “private security officer” like James Lee cannot qualify as a

“merchant” under section 12-4(b)(15). The question of whether a “private security officer”

can also qualify as a “merchant” under section 12-4(b)(15) is a question of statutory

construction. The fundamental rule of statutory construction is to ascertain and give effect

to the legislature’s intent. Blum v. Koster, 235 Ill. 2d 21, 29 (2009). The best indication of

legislative intent is the plain and ordinary meaning of the statutory language. Koster, 235 Ill.

2d at 29. Where the language is clear and unambiguous, we must apply the statute without

resort to other aids of statutory construction. People ex rel. Birkett v. City of Chicago, 202

Ill. 2d 36, 46 (2002). If the statutory language is ambiguous, we look to other sources to

decide the legislature’s intent. Koster, 235 Ill. 2d at 29. The construction of a statute is a

question of law that is reviewed de novo. Koster, 235 Ill. 2d at 29.

¶ 75 A person commits aggravated battery if he or she “[k]nowingly and without legal

justification and by any means causes bodily harm to a merchant who detains the person for

an alleged commission of retail theft.” 720 ILCS 5/12-4(b)(15) (West 2008). Defendant

argues that two provisions of the aggravated battery statute are relevant to interpreting the

meaning of the term “merchant” under this section. First, section 12-4(b)(15), states that

“ ‘merchant’ has the meaning ascribed to it in section 16A-2.4 of this Code.” 720 ILCS 5/12-

4(b)(15) (West 2008). Under section 16A-2.4, “merchant” is defined as “an owner or

operator of any retail mercantile establishment or any agent, employee, lessee, consignee,

officer, director, franchisee or independent contractor of such owner or operator.” 720 ILCS

5/16A-2.4 (West 2008).

¶ 76 Second, under section 12-4(b)(20), a defendant commits aggravated battery if he or she

“[k]nows the individual harmed to be a private security officer engaged in the performance

of any of his or her official duties, or to prevent the private security officer from performing

official duties, or in retaliation for the private security officer performing official duties.” 720

ILCS 5/12-4(b)(20) (West 2008). “[P]rivate security officer” means “a registered employee

of a private security contractor agency” (720 ILCS 5/12-4(b) (West 2008)), which is defined

as “a person, firm, corporation, or other legal entity that engages in the private security

contractor business and that employs, in addition to the licensee-in-charge, one or more

persons in conducting such business” (225 ILCS 447/5-10 (West 2008)). While aggravated

battery of a merchant is a Class 3 felony, aggravated battery of a private security officer is

a Class 2 felony. 720 ILCS 5/12-4(e)(1), (e)(2) (West 2008).

¶ 77 Defendant argues that, taking these two sections together, private security officers cannot

be considered merchants because the legislature has “clearly distinguished” between these

categories under section 12-4(b) and they must have non-overlapping, “distinct meanings.”

We are not persuaded by defendant’s argument.

¶ 78 First, the plain and ordinary meaning of section 12-4(b)’s categories suggests that a

defendant’s conduct can fall under multiple categories. For example, a defendant could

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commit aggravated battery by using “a deadly weapon other than by the discharge of a

firearm” and being “hooded, robed or masked, in such manner as to conceal his identity.”

720 ILCS 5/12-4(b)(1) (deadly weapon), 12-4(b)(2) (West 2008) (conceal identity). There

is nothing in the language of section 12-4(b) that precludes defendant from being charged

with aggravated battery under either section 12-4(b)(1) or section 12-4(b)(2). In fact, several

courts have reached a similar conclusion.

¶ 79 In In re Rodney S., 402 Ill. App. 3d 272 (2010), the defendant threw multiple objects at

a school bus monitor while he was driving. In re Rodney S., 402 Ill. App. 3d 272, 275 (2010).

The State charged the defendant with aggravated battery on a public way, in violation of

section 12-4(b)(8) and aggravated battery of a school employee, in violation of section 12-

4(b)(18). In re Rodney S., 402 Ill. App. 3d at 273. However, the defendant’s two convictions

were each for the same physical act, and the appellate court vacated the convictions because

they violated the one-act, one-crime rule. In re Rodney S., 402 Ill. App. 3d at 281-85.

¶ 80 The appellate court in In re Rodney S. noted that “each blow to [the school bus monitor]

could have supported a separate finding of guilt for aggravated battery” had the “charging

document reflect[ed] the State’s intent to apportion the accused’s conduct and prosecute the

accused for multiple crimes.” (Internal quotation marks omitted.) In re Rodney S., 402 Ill.

App. 3d at 284. The appellate court remanded the case to the trial court to correct its

“Adjudication Order” once it determined which aggravated battery count was the more

serious offense. In re Rodney S., 402 Ill. App. 3d at 285. The appellate court did not specify

which section 12-4(b) category the defendant’s conduct fell into because each separate strike

could have supported convictions under either section 12-4(b)(8) or section 12-4(b)(18). See

also In re Samantha V., 234 Ill. 2d 359, 378 (2009) (defendant’s conviction violated the one-

act, one-crime rule but his conduct could support aggravated battery convictions for causing

great bodily harm under section 12-4(a) and battery on a public way under section 12-

4(b)(8)); People v. Crespo, 203 Ill. 2d 335, 344-45 (2001) (remanded where the State

charged the defendant with aggravated battery for causing great bodily harm under section

12-4(a) and for use of a deadly weapon under section 12-4(b)(1) because the State failed to

“apportion these crimes among the stab wounds”).

¶ 81 Second, section 12-4(b)) does not include language suggesting that conduct meeting the

requirements of one category cannot overlap with conduct that meets the requirements of any

other category under this section. There is no language in section 12-4(b) suggesting either

that all categories should be read as exclusive. There is also no language suggesting that only

some categories should be read as exclusive, while others should be read as permitting

conduct to fall under multiple categories. Even if the categories relating to physical

characteristics or locations are excluded from our analysis, a defendant’s conduct could still

fall under more than one section 12-4(b) category relating to occupations. For example, a

defendant who knowingly batters a school employee could be charged under section 12-

4(b)(3) (“[k]nows the individual harmed to be a teacher or other person employed in any

school”) or charged under section 12-4(b)(18) (“[k]nows the individual harmed to be an

officer or employee of the State of Illinois, a unit of local government, or school district”).

(Emphasis added.) 720 ILCS 5/12-4(b)(3), (b)(18) (West 2008). We cannot find a textual

basis supporting defendant’s interpretation that section 12-4(b)’s categories should be read

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as exclusive and not overlapping.

¶ 82 Third, the amendment that added subdivision (b)(15) to section 12-4(b) was signed into

law on July 14, 1997. Pub. Act 90-115, § 5 (eff. Jan. 1, 1998) (adding 720 ILCS 5/12-

4(b)(15)). The amendment that added subdivision (b)(20) to section 12-4(b) was signed into

law on August 17, 2007. Pub. Act 95-236, § 5 (eff. Jan. 1, 2008) (adding 720 ILCS 5/12-

4(b)(20)). The intent of section 12-4(b) is “to afford greater protection to those subjected to

special risks in performing [their] public duties.” In re V.P., 139 Ill. App. 3d 786, 789 (1985).

In light of this intent, we cannot find that the subsequent addition of section 12-4(b)(20) was

intended to narrow the scope of conduct that falls within section 12-4(b)(15).

¶ 83 Fourth, while aggravated battery of a merchant under section 12-4(b)(15) is a Class 3

felony, aggravated battery of a private security officer under section 12-4(b)(20) is a Class

2 felony. The defendant’s interpretation restricts the State’s ability to charge defendants

under section 12-4(b)(15) by limiting the State’s ability, as a matter of prosecutorial

discretion, to prove either charge based on the circumstances of each case. It would also

mean that some defendants who might have been charged with a Class 3 felony (section 12-

4(b)(15)), could only be charged with a Class 2 felony (section 12-4(b)(20)).

¶ 84 We find that a private security officer can qualify as a “merchant” under section 12-

4(b)(15).

¶ 85 D. James Lee Qualifies as a “Merchant”

¶ 86 Defendant argues that the State failed to prove beyond a reasonable doubt that James Lee

qualifies a “merchant” under section 16A-2.4. For the reasons discussed below, we find that

the evidence in the trial record was sufficient to establish that Lee was an “independent

contractor” of the Family Dollar Store and therefore qualifies as a “merchant” under section

16A-2.4. Since defendant was charged with aggravated battery of a merchant, we need not

reach a conclusion of whether the evidence presented at trial was also sufficient to prove

defendant committed aggravated battery of a “private security officer” under section 12-

4(b)(20).

¶ 87 A merchant is “an owner or operator of any retail mercantile establishment or any agent,

employee, lessee, consignee, officer, director, franchisee or independent contractor of such

owner or operator.” 720 ILCS 5/16A-2.4 (West 2008). “An independent contractor ***

undertakes to produce a certain result [but is not] controlled as to the method [in which he

obtains] that result.” Spivey v. Brown, 150 Ill. App. 3d 139, 143 (1986). An employer who

hires an independent contractor is generally not liable for the negligent or intentional acts or

omissions of the contractor. Gomien v. Wear-Ever Aluminum, Inc., 50 Ill. 2d 19, 21 (1971).

In contrast, a principal-agent relationship exists when “the principal has the right to control

the manner and method in which the agent performs his work and the agent has the ability

to subject the principal to personal liability.” Lang v. Silva, 306 Ill. App. 3d 960, 972 (1999).

The question of whether one is an agent, an employee, or an independent contractor is

generally a question of fact. Shoemaker v. Elmhurst-Chicago Stone Co., 273 Ill. App. 3d 916,

920 (1994). If the relationship is so clear as to be indisputable, the question may be decided

as a matter of law. Shoemaker, 273 Ill. App. 3d at 921.

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¶ 88 In the case at bar, we find that the trial court could have rationally found that Lee was an

independent contractor beyond a reasonable doubt. Lee testified that he was employed by

Metro One Security. He wore a winter coat with the word “security” printed in large letters

on the back of the coat and “Metro Loss Prevention” on the front breast. He testified that

Metro One Security assigned him to work at the Family Dollar Store. Jones testified that he

was a security guard at the store and that store management notified him when defendant

attempted to leave the store without paying for merchandise. Lee testified that he attempted

to stop defendant from leaving the store at the request of store personnel. Lee also assisted

store personnel in restraining defendant and keeping him in the store’s security office until

police arrived to take defendant into custody.

¶ 89 Defendant argues that the evidence was not sufficient to prove Lee was an independent

contractor because the State presented no evidence on how Lee was paid, the skill level

required to be a Family Dollar Store security guard, who provided Lee with his necessary

tools, materials, or equipment, and whether he had been assigned to work at the Family

Dollar Store before November 25, 2008. We agree with defendant that this evidence could

be used to distinguish between whether Lee qualified as the Family Dollar Store’s agent,

instead of an independent contractor.2 However, whether he is an agent or an independent

contractor is immaterial for our purposes because either one qualifies him as a “merchant.”

720 ILCS 5/16A-2.4 (West 2008). In addition, the evidence presented regarding Metro One

Security’s employment of Lee, its assignment of Lee to work at the Family Dollar Store,

Lee’s compliance with directions of Family Dollar Store personnel, Lee’s assistance of other

store personnel, and his access to the store’s security office was sufficient to show that Lee

was an independent contractor. Although the State argues that Lee was an agent, rather than

an independent contractor, we need not resolve this question, since either would result in an

affirmance. People v. Durr, 215 Ill. 2d 283, 296 (2005) (we may affirm on any basis

supported by the record).

¶ 90 Therefore, reviewing the evidence in the light most favorable to the prosecution, we find

that the trial court could have rationally found that defendant Lee was an independent

contractor of the Family Dollar Store, and therefore qualifies as a merchant pursuant to

section 12-4(b)(15).

¶ 91 E. “Know” Lee was a “Merchant”

¶ 92 Defendant argues the evidence did not prove defendant “knew” Lee was a merchant. We

2

To determine between agent or employee and independent contractor, courts may consider

the following factors: the right to control the manner in which the work is performed; the right to

discharge; the method of payment; whether taxes are deducted from the payment; the level of skill

required to perform the work; and the furnishing of the necessary tools, materials, or equipment.

Davis, 261 Ill. App. 3d at 852-53; Shoemaker, 273 Ill. App. 3d at 920. No single factor is

determinative but the right to control the manner in which the work is performed is considered to

be the predominant factor. McConnell v. Freeman United Coal Co., 198 Ill. App. 3d 322, 325-26

(1990); Walker v. Midwest Emery Freight Systems, 119 Ill. App. 3d 640, 645-46 (1983).

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are not persuaded by defendant’s argument.

¶ 93 Lee wore black uniform pants, a black jersey, and a hooded three-quarter length winter

coat with the word “security” printed in large letters on the back of the coat and “Metro Loss

Prevention” on the front breast. Lee, along with Family Dollar Store employees, prevented

defendant from leaving the store by restraining him and bringing him into the store’s security

office. Lee worked in concert with Family Dollar Store personnel to restrain defendant until

the police arrived. In light of this evidence, the trial court could have rationally found that

defendant knew Lee was a merchant under section 12-4(b)(15). The State need not prove that

defendant knew the precise nature of Lee’s employment relationship with the Family Dollar

Store to prove that defendant knew he was a merchant under section 12-4(b)(15).

¶ 94 F. “Employee” of the Family Dollar Store

¶ 95 Defendant argues that the indictment stated Lee was “an employee of Family Dollar

Store” and the evidence proved that he was an employee of Metro One Security. Defendant

concludes that the evidence was insufficient to show defendant committed aggravated battery

under section 12-4(b)(15). We believe defendant’s claim is really a variance argument.

¶ 96 As explained above, for a variance between the charging instrument and the proof at trial

to be fatal, the difference “must be material and be of such character as may mislead the

defendant in making his or her defense, or expose the defendant to double jeopardy.”

Maggette, 195 Ill. 2d at 351. “[I]mmaterial matters, or matters which may be omitted from

an indictment without rendering it insufficient or doing damage to the material averments,

may be regarded as surplusage.” Figgers, 23 Ill. 2d at 519; Crawford, 23 Ill. 2d at 607.

¶ 97 As explained above, we find that Lee qualifies as an independent contractor of the Family

Dollar Store. Defendant has not shown us how the difference between the fact that the

indictment that stated Lee was an “employee” and the proof at trial that showed Lee was an

“independent contractor” was material or inadequate notice of the charge. Defendant did not

raise this issue at trial and he has not shown us how this difference misled him in preparing

his defense. Furthermore, defendant has not been exposed to double jeopardy because “[i]f

any future prosecution were attempted, prior prosecution on the same facts could be proved

by resort to the record.” Jones, 245 Ill. App. 3d at 677; Johnson, 65 Ill. 2d at 339.

¶ 98 Therefore, we cannot say that the variance between the indictment and the proof at trial

about the employment relationship between Lee and the Family Dollar Store was either

material, prejudiced defendant, or would expose defendant to double jeopardy.

¶ 99 G. Fines and Fees

¶ 100 Defendant claims that he is entitled to a $275 reduction in the costs and fees he was

ordered to pay, and the State agrees. For the reasons discussed below, we order defendant’s

fines and fees reduced by $250 from $555 to $305, and order that the mittimus be corrected

accordingly. People v. Maldonado, 402 Ill. App. 3d 411, 434 (2010) (ordering that

defendant’s fines and fees be reduced by a certain amount and that “his mittimus be corrected

accordingly” (internal quotation marks omitted)).

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¶ 101 Specifically, defendant argues that several fees were erroneously assessed by the trial

court. In an order dated November 5, 2009, the trial court directed defendant to pay $555 for

various costs and fees. On appeal, the State agrees that the $20 “Preliminary Hearing-State’s

Attorney” fee should not have been assessed against defendant pursuant to section 4-

2002.1(a) of the Counties Code (55 ILCS 5/4-2002.1(a) (West 2008)) because there was no

preliminary hearing. The State also agrees that the $200 DNA analysis assessment pursuant

to section 5-4-3(j) of the Unified Code of Corrections (730 ILCS 5/5-4-3(j) (West 2008))

should not have been assessed against defendant. Defendant had already submitted a blood

sample after a prior conviction and does not need to submit a new sample. People v.

Marshall, 242 Ill. 2d 285, 302 (2011).

¶ 102 The State also agrees that the $25 court services fee imposed pursuant to section 5-1103

of the Counties Code (55 ILCS 5/5-1103 (West 2008)) should not have been assessed against

defendant because this fee applies only to the offenses enumerated in the statute and

defendant was not convicted of one of those offenses. See 55 ILCS 5/5-1103 (West 2008).

Section 5-1103 of the Counties Code provides:

“A county board may enact by ordinance or resolution a court services fee dedicated

to defraying court security expenses incurred by the sheriff in providing court

services or for any other court services deemed necessary by the sheriff to provide for

court security ***. Such fee shall be paid in civil cases by each party at the time of

filing the first pleading, paper or other appearance ***. In criminal, local ordinance,

county ordinance, traffic and conservation cases, such fee shall be assessed against

the defendant upon a plea of guilty, stipulation of facts or findings of guilty, resulting

in a judgment of conviction, or order of supervision, or sentence of probation without

entry of judgment pursuant to Section 10 of the Cannabis Control Act, Section 410

of the Illinois Controlled Substances Act, Section 70 of the Methamphetamine

Control and Community Protection Act, Section 12-4.3 of the Criminal Code of

1961, Section 10-102 of the Illinois Alcoholism and Other Drug Dependency Act,

Section 40-10 of the Alcoholism and Other Drug Abuse and Dependency Act, or

Section 10 of the Steroid Control Act. In setting such fee, the county board may

impose, with the concurrence of the Chief Judge of the judicial circuit in which the

county is located by administrative order entered by the Chief Judge, differential rates

for the various types or categories of criminal and civil cases, but the maximum rate

shall not exceed $25. All proceeds from this fee must be used to defray court security

expenses incurred by the sheriff in providing court services. No fee shall be imposed

or collected, however, in traffic, conservation, and ordinance cases in which fines are

paid without a court appearance. The fees shall be collected in the manner in which

all other court fees or costs are collected and shall be deposited into the county

general fund for payment solely of costs incurred by the sheriff in providing court

security or for any other court services deemed necessary by the sheriff to provide for

court security.” (Emphasis added.) 55 ILCS 5/5-1103 (West 2008).

¶ 103 This court has previously held that the court services fee can be properly assessed even

though the offense for which the defendant was convicted was not listed in the statute.

People v. Anthony, 408 Ill. App. 3d 799, 811 (2011) (court services fee properly assessed

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although defendant was convicted of unlawful possession of a weapon by a felon); People

v. Adair, 406 Ill. App. 3d 133, 144-45 (2010) (court services fee properly assessed although

defendant was convicted of possession of a controlled substance); People v. Williams, 405

Ill. App. 3d 958, 965 (2010) (court services fee properly assessed although defendant was

convicted of unlawful use of a weapon by a felon and aggravated unlawful use of a weapon).

¶ 104 The best indication of legislative intent is the plain and ordinary meaning of the statutory

language. Koster, 235 Ill. 2d at 29. “The general rule of grammar and law is that the relative

terms refer to the next preceding antecedent unless it is clear from the context that a different

one was intended.” Sharp v. Sharp, 333 Ill. 267, 277 (1928). The legislature is “presumed

to know the meaning of words and the rules of grammar.” (Internal quotation marks omitted.)

Crane v. Chicago & Western Indiana R.R. Co., 233 Ill. 259, 267 (1908).

¶ 105 Section 5-1103 lists several types of adjudications and then provides a list of statutes. We

read this list of statutes as modifying only the last type of adjudication: “sentence of

probation.” We read this sentence this way because, first, the list of statutes comes

immediately after this particular adjudication, which indicates the statutes modify only this

particular adjudication. Second, there is no comma separating this particular adjudication

from the words “pursuant to” which introduce the list of statutes. Third, the types of

adjudications are all separated by commas, and there is a comma between “or order of

supervision” and “or sentence of probation.” The inclusion of an “or” and a comma between

“order of supervision” and “sentence of probation” indicates that the list of statutes modifies

only “sentence of probation” rather than all of the adjudications. Fourth, there is an “or” in

front of both “order of supervision” and “sentence of probation.” This indicates that

“sentence of probation” is separate from both judgments of conviction and orders of

supervision, and supports the conclusion that the list of statutes modifies only “sentence of

probation” rather than all of the adjudications. Therefore, we follow the holdings in Anthony,

Adair, and Williams and find that the court services fee was properly assessed following

defendant’s convictions.

¶ 106 Defendant also argues that, pursuant to section 110-14 of the Code of Criminal Procedure

of 1963 (725 ILCS 5/110-14 (West 2008)), he is entitled to a credit of $5 per day for the 341

days that he spent in custody between his arrest and sentencing. People v. Caballero, 228 Ill.

2d 79, 88-89 (2008) (credit pursuant to section 110-14 applies anytime a person is

incarcerated between arrest and sentencing); People v. Rivera, 378 Ill. App. 3d 896, 898-900

(2008). Section 110-14(a) provides that “[a]ny 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 on application of defendant.” 725 ILCS

5/110-14(a) (West 2008). According to section 110-14, the amount of the available credit is

calculated by multiplying $5 by the number of days of incarceration. 725 ILCS 5/110-14(a)

(West 2008). Multiplying $5 by the defendant’s 341 days of incarceration yields a total of

$1,705. 725 ILCS 5/110-14 (West 2008).

¶ 107 Section 110-14 specifies that this credit is available only against a “fine.” On appeal, the

State agrees that the $30 for the Children’s Advocacy Center pursuant to section 5-1101(f-5)

of the Counties Code (55 ILCS 5/5-1101(f-5) (West 2008)) should be considered a fine and

should be offset against the $1,705 credit. In People v. Mimes, 2011 IL App (1st) 082747,

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we held that the Children’s Advocacy Center fee should be characterized as a “fine.” Id. at

¶ 84; People v. Jones, 223 Ill. 2d 569, 600 (2006) (a charge is a fine, despite the legislature’s

label of it as a fee, if it “does not seek to compensate the state for any costs incurred as the

result of prosecuting the defendant”). Although labeled as a “fee” on the trial court’s order,

the Children’s Advocacy Center charge should be considered a fine and is eligible for an

offset against defendant’s credit.

¶ 108 Even though defendant has a much larger credit, he does not argue that he was assessed

any other fines. As a result, we do not offset the other fees and costs assessed by the trial

court order against defendant’s $1,705 credit.

¶ 109 We observe that all the reductions requested by defendant were agreed to by the State.

Therefore, under the authority prescribed to this court under Supreme Court Rule 615(b)(4)

(Ill. S. Ct. R. 615(b)(4)), we modify the trial court fee order November 5, 2009, to reflect

$305 assessed against defendant and correct the mittimus accordingly.

¶ 110 III. CONCLUSION

¶ 111 First, as to defendant’s claim that the State failed to prove beyond a reasonable doubt that

he “knowingly” caused bodily harm to James Lee, we find that a rational trier of fact could

have found that defendant was consciously aware that his repeated attempts to leave the

premises were practically certain to cause bodily harm to one of the store personnel.

¶ 112 Second, as to defendant’s claim that the State failed to prove beyond a reasonable doubt

that he “struck” James Lee “about the body,” we find that the variance between the

indictment and the proof at trial about the manner in which defendant caused bodily harm

to Lee was not material and would not expose defendant to double jeopardy.

¶ 113 Third, as to defendant’s claim that a private security officer cannot qualify as a merchant

under section 12-4(b)(15), we find that a private security officer can qualify as a merchant

under section 12-4(b)(15).

¶ 114 Fourth, as to defendant’s claim that the State failed to prove beyond a reasonable doubt

that James Lee qualifies as a “merchant,” we find that a rational trier of fact could have found

that Lee was an independent contractor and therefore qualifies as a merchant under section

12-4(b)(15).

¶ 115 Fifth, as to defendant’s claim that the State failed to prove defendant “knew” James Lee

was a merchant, we find that a rational trier of fact could have found that defendant knew

Lee was a merchant based on his uniform and the assistance he offered store personnel in

restraining defendant.

¶ 116 Sixth, as to defendant’s claim that the indictment stated that James Lee was “an employee

of Family Dollar Store” and the evidence proved that he was an employee of Metro One

Security, we find that the variance between the indictment and the proof at trial about Lee’s

employment relationship was not material, did not mislead defendant in preparing his

defense, and did not expose defendant to double jeopardy.

¶ 117 Seventh, we find that the trial court erred in assessing certain fines, fees, and costs and

defendant was entitled to a monetary credit described in section 110-14 (725 ILCS 5/110-

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14(a) (West 2008)). We order defendant’s fines and fees reduced by $250 from $555 to $305,

and order that his mittimus be corrected accordingly.

¶ 118 For the foregoing reasons, we affirm the conviction and order the mittimus corrected to

reflect $305 in defendant’s fines and fees.

¶ 119 Affirmed; mittimus corrected.

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