                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Appelt, 2013 IL App (4th) 120394




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    GEORGE A. APPELT, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-12-0394


Filed                      October 4, 2013
Rehearing denied           November 1, 2013


Held                       Defendant’s conviction for the aggravated battery of his roommate was
(Note: This syllabus       upheld over his arguments that the evidence was insufficient to sustain
constitutes no part of     his conviction and that a police officer’s negative response to the
the opinion of the court   prosecutor’s question as to whether defendant made a statement that he
but has been prepared      was innocent and suggested that the victim was battered by someone else
by the Reporter of         shifted the burden of proof to defendant, since a rational trier of fact
Decisions for the          could have found defendant guilty beyond a reasonable doubt and the
convenience of the         prosecutor’s question did not imply that defendant had any obligation to
reader.)
                           present evidence in the trial.


Decision Under             Appeal from the Circuit Court of Macon County, No. 11-CF-1303; the
Review                     Hon. Timothy J. Steadman, Judge, presiding.


Judgment                   Affirmed.
Counsel on                  Michael J. Pelletier, of State Appellate Defender’s Office, of Springfield,
Appeal                      and Alan D. Goldberg and Manuel S. Serritos, both of State Appellate
                            Defender’s Office, of Chicago, for appellant.

                            Jay Scott, State’s Attorney, of Decatur (Patrick Delfino, Robert J.
                            Biderman, and Luke McNeill, all of State’s Attorneys Appellate
                            Prosecutor’s Office, of counsel), for the People.


Panel                       JUSTICE APPLETON delivered the judgment of the court, with opinion.
                            Presiding Justice Steigmann and Justice Turner concurred in the
                            judgment and opinion.




                                              OPINION

¶1           A jury found defendant, George A. Appelt, guilty of aggravated battery (720 ILCS 5/12-
        3.05(d)(2) (West 2010) (added by Pub. Act 96-1551, art. 1, § 5 (eff. July 1, 2011))), and the
        trial court sentenced him to imprisonment for four years.
¶2           Defendant appeals for two reasons. First, he argues the evidence is insufficient to support
        his conviction. More specifically, he argues the State failed to prove he was the person who
        committed the aggravated battery of Teresa Jackson. He does not dispute that Jackson
        suffered an aggravated battery; he merely disputes that he was the one who battered her.
        Looking at the evidence in the light most favorable to the prosecution, we conclude that a
        rational trier of fact could find, beyond a reasonable doubt, that defendant was the person
        who committed the aggravated battery.
¶3           Second, defendant argues the trial court abused its discretion by overruling his objection,
        and by denying his motion for a mistrial, on the ground that a question the prosecutor asked
        a police officer during direct examination shifted the burden of proof to the defense. The
        prosecutor asked the police officer whether, in a statement that defendant made in the squad
        car, he declared his own innocence and suggested that someone else had battered Jackson.
        (The police officer answered no.) Because this question did not imply that defendant had any
        obligation to present evidence in the trial itself, the question did not shift the burden of proof
        to the defense, and the court did not abuse its discretion by overruling the objection and
        denying the motion for a mistrial.
¶4           So, disagreeing with both of the arguments that defendant makes in this appeal, we affirm
        the trial court’s judgment.



                                                   -2-
¶5                                      I. BACKGROUND
¶6        In the jury trial, which occurred in January 2012, the State called three witnesses: Teresa
       Jackson, Sharon Parker, and Brian Allison. The defense called one witness: Richard Lohse.
       We summarize their testimony below.

¶7                                       A. Teresa Jackson
¶8                           1. Direct Examination by the Prosecutor
¶9         Teresa Jackson testified through a sign language interpreter. She was 43 years old and
       had been deaf since the age of 10. She could hear if she wore a hearing aid, but she was not
       wearing one when she testified.
¶ 10       She had been dating defendant for approximately 10 1/2 years. She had lived with him
       off and on. On the day he was arrested, September 10, 2011, she was living with him in his
       residence, at 2473 East North Street, Decatur. At the time of trial, she lived elsewhere.
¶ 11       The morning of September 10, 2011, Jackson and defendant were together in his
       residence. The prosecutor asked Jackson:
               “Q. And at some point in the morning, did a fight begin between the two of you?
               A. No. Really, somehow there was no power.”
       In other words, defendant’s residence had no electricity the morning of September 10, 2011,
       and Jackson claimed it was too dark to see.
¶ 12       Between 5 and 6 a.m. (but she was unsure of the time, given that she had no watch and
       the electric clock was not working), she awakened when someone began beating her. In the
       darkness, she could not see who the assailant was. She had no idea whether it was a man or
       a woman who was pummeling her in the face and on the back.
¶ 13       The prosecutor asked Jackson:
               “Q. Did George hit you at all that morning?
               A. I don’t know. I don’t know who did it. I don’t know if it was George or somebody
           else.
               Q. So it could have been George hitting you?
               A. I’m not sure. How am I going to know? I can’t see.”
       (She meant she could not see with the electricity turned off. It does not appear from the
       record that she had any visual impairment.)
¶ 14       Around 11 a.m. or noon, after being beaten up, Jackson telephoned a next-door neighbor,
       Sharon Parker, and went over to her house. The prosecutor asked Jackson:
               “Q. And why did it take you so long between when you originally were beat up until
           when you got to her house to have her call the police for you?
               A. Well, really because I was wanting to know who did it, who did that to me.
               Q. Did Sharon then call the police for you after you wrote to her what had happened?
               A. Yes.”
       Parker retained Jackson’s handwritten note (according to Jackson).

                                                -3-
¶ 15       Jackson testified that upon leaving Parker’s house, she returned to defendant’s residence,
       2473 East North Street, “to check to make sure where [her] things were and make sure [her]
       things were okay.”
¶ 16       A police officer eventually found Jackson and spoke with her. The prosecutor asked
       Jackson:
              “Q. Do you recall a police officer writing questions to you and you writing answers?
              A. Yes.
                                                ***
              Q. *** So you were asked–and I’m just asking for a yes-or-no answer–‘What has
           happened today?’
              A. Yes.
              Q. Did you answer, ‘He be[a]t me up. No reason’?
              A. Yes.
                                                ***
              Q. Did you answer–when he asked you with an object, did you answer, ‘Fists’?
              A. Yes.
              Q. Were you asked, ‘How many times did he hit you?’
              A. Yes.
              Q. Did you answer, ‘Many’?
              A. Yes.
              Q. Were you asked, ‘When did this happen?’
              A. Yes.
              Q. Did you answer, ‘Today’?
              A. Yes.
              Q. Were you asked, ‘What time?’
              A. Yes.
              Q. Did you answer: ‘5:00 a.m. and 10:00 a.m.’?
              A. Yes.
              Q. Were you asked, ‘What is his full name and date of birth?’
              A. Yes.
              Q. Did you answer, ‘George Alan Appelt. 11-02-1964’?
              A. Yes.
              Q. Were you asked, ‘Did he cause the bruises to your face and injury to your hand?’
              A. Yes.
              Q. And did you answer, although not on paper, ‘Yes’?
              A. Yes.”
¶ 17       The prosecutor then showed Jackson some photographs, People’s exhibits Nos. 1 through

                                                -4-
       4, which Jackson identified as photographs of the injuries she had sustained from the
       beatings. The photographs showed her with a black eye, from being struck in the face with
       a fist; a bleeding cut on the index finger of her left hand, from “trying to hold the person that
       was attacking [her]”; and a bruise and scratch on her back, from being held down.

¶ 18                          2. Cross-Examination by Defense Counsel
¶ 19       On cross-examination, Jackson testified (in apparent contradiction with the preceding
       direct examination) that defendant did not stay at his residence, 2473 East North Street, the
       night of September 9, 2011, and that she did not see him at all on September 10, 2011, the
       day he was arrested.
¶ 20       She confirmed, on cross-examination, that “somebody came back twice” to beat her the
       morning of September 10, 2011, and that after 10 a.m., she went to Parker’s house (although
       she could not be certain of the time, given that she “didn’t have any power”).
¶ 21       Defense counsel asked Jackson:
                “Q. Did you go to [Powers’s house] right away, or did you wait a while?
                A. I waited a little bit, for a few minutes because I was very nervous and scared.
                Q. You said something in your testimony earlier today about having called Sharon
           first. Did you call her on the phone first?
                A. Yes.
                Q. Did you have a phone that worked?
                A. I have no phone. I don’t have a phone.
                Q. Then how is it that you called Sharon before you went to her house?
                A. I walked over to Sharon’s house.
                Q. All right. So you didn’t call Sharon first?
                A. No. I walked over to her house.”
¶ 22       Defense counsel then asked Jackson whom she meant when she wrote, in her note to the
       police officer: “ ‘He beat me up. No reason’ ”:
                “Q. Who’s ‘he’? ‘He beat me up.’ Who are you referring to?
                A. I wrote it–really I had no idea.”
¶ 23       Defense counsel asked why she wrote defendant’s name in her note to the police officer.
       She answered:
                “A. Well, I was in a hurry.
                Q. Were you writing that to say that George was the one who beat you up for no
           reason?
                A. Yes.
                Q. Why were saying it was George that beat you up for no reason?
                A. Well, I remember–it was a long time ago, and that’s what happened, and I was
           reminded of that.


                                                 -5-
                Q. What do you mean it was a long–what was a long time ago? The September
           incident or some other thing?
                A. No. Another time. A long time ago.”
¶ 24       She did not remember which answer she gave the police officer, yes or no, in response
       to the question “ ‘Did he cause the bruises to your face and injury to your hand?’ ” Defense
       counsel asked her:
                “Q. Do you recall if–at the time the officer wrote, ‘Did he cause the bruises to your
           face and injury to your hand,’ did you believe that he was talking about George? Is that
           who you were answering about?
                A. No.
                Q. Now, is someone forcing you in any way to say that it was not George Appelt that
           struck you?
                A. No. No one. No one is saying anything.
                Q. In fact–
                A. Not–no one said a word to me.”
¶ 25       Defense counsel then showed Jackson a document, defendant’s exhibit No. 1, which she
       identified as a note she wrote to defense counsel and the prosecutor on November 14, 2011.
       In this note, she claimed the police officer did not understand what she told him on
       September 10, 2011, because no sign language interpreter was present during the interview.
¶ 26       Defense counsel next showed her defense exhibit No. 2, which she identified as a note
       she wrote “[p]robably before Christmas.” Defense counsel asked her:
                “Q. Now, in this letter you indicate, ‘I was not sure who did [it] to me.’ Is that–by
           that, do you mean you’re not sure who–
                A. I’m not sure what person came in because I couldn’t see. I had no power. So how
           am I supposed to know who the person is that came in?
                Q. And then in the third paragraph you go on to say something similar to what you
           wrote in the first one about ‘Well, I don’t understand what the people say.’
                A. That’s right.”
¶ 27       Finally, defense counsel showed Jackson defendant’s exhibit No. 3, which she identified
       as a note she wrote “[j]ust a few weeks ago.” Defense counsel asked her:
                “Q. And in this statement you also wrote ‘Someone was [sic] broke in the door. Then
           I feel bumping, and I couldn’t see who was there.’ Is that right?
                A. Yes.
                Q. And then you also say in the next–start of the next paragraph ‘George didn’t do
           it.’ What did you mean by that?
                A. Yes. He did not hit me. I don’t know whether he did or not, so that means he
           didn’t do it.”




                                                -6-
¶ 28                       3. Redirect Examination by the Prosecutor
¶ 29      On redirect examination, Jackson testified that 2473 East North Street was a two-story
       apartment building, that defendant’s apartment was on the second floor, and that his
       apartment had windows. The prosecutor then asked her:
              “Q. Now, was it dark out that day for some reason at 10:00 a.m. or was it light out?
              A. Well, really it was light, but I had a blanket covering my head so I couldn’t see.
          It was a thick blanket. I didn’t use blinds. I used a thick blanket to cover myself.
              Q. And you didn’t try to remove that blanket to see who was beating you up?
              A. No. The blanket was–oh, I’m sorry. The blanket was over the window.
              Q. Okay. So you are testifying that you still weren’t able to see anything at 10:00
          a.m.?
              A. That’s correct.”
¶ 30      The prosecutor then questioned Jackson about defendant’s exhibit No. 3. She asked
       Jackson:
              “Q. And in that letter is it correct that you say, ‘He was work[ing] with someone. He
          got home around noon. Well, Rick told me that he went [to] work.’
              A. Yes.”
¶ 31      Rick, she testified, was defendant’s friend. She thought Rick’s last name was Loshe.
¶ 32      The prosecutor asked Jackson:
              “Q. Are you saying you know the defendant was working with Rick at the time you
          were beaten up?
              A. No. No.
              Q. So you don’t know when the defendant was working?
              A. No. I don’t know.
              Q. Rick has just told you to tell us that defendant was working?
              A. Yes.
              Q. Did Rick say anything else to you?
              A. No. He just said that–he told me that George was working. That’s all he said.
              Q. Now, you’ve said to Mr. Reuter [(defense counsel)] that you didn’t understand
          exactly–you’re now saying you didn’t understand exactly what the police officer was
          saying to you because there wasn’t an interpreter; correct?
              A. That’s right.
              Q. But you know how to read and write; correct?
              A. Yes. I know how to read, yes, and write, but sometimes big words I don’t
          understand.
              Q. But none of the words that the officer wrote to you were big words that you didn’t
          understand, were they?
              A. No.”


                                               -7-
¶ 33                                      B. Sharon Parker
¶ 34       Before the State called Sharon Parker to the stand, the trial court heard arguments about
       an anticipated hearsay objection. It was expected that, in her testimony, Parker would recount
       what Jackson told her in a handwritten note on September 10, 2011. After hearing arguments,
       the court ruled that the hearsay would be admissible under the exception for excited
       utterances. See Ill. R. Evid. 803(2) (eff. Jan. 1, 2011).
¶ 35       Parker testified she was 63 years old and that on September 10, 2011, she resided at 2438
       William Street in Decatur.
¶ 36       She had been acquainted with Jackson and defendant for about 1 1/2 years. She had seen
       them together in the neighborhood, and she was aware they lived together. She had helped
       Jackson now and then by running errands for her and by making telephone calls to defendant
       at Jackson’s request.
¶ 37       In the late morning or early afternoon of September 10, 2011, Jackson came to Parker’s
       house. The prosecutor asked Parker:
               “Q. What was her demeanor when she arrived?
               A. She was very upset. She was bleeding. She was black and blue. She asked me to
           get a paper, and she wrote down what she wanted me to do with it.
               Q. Was she crying?
               A. Yes.
               Q. And what did she write to you?
               A. She wanted me to call the police. She said George had beat her up and that she
           was going over to her other friend’s house, and she gave me the address on that piece of
           paper.
               Q. Did you keep that piece of paper that she wrote on?
               A. No. I gave it back to her because I thought she’d give it to the policeman.”
¶ 38       In response to the note from Jackson, Parker went into her own house and telephoned the
       police and then came back out and handed the note back to Jackson, whereupon Jackson left.
¶ 39       On cross-examination, Parker testified she believed it actually was in the afternoon when
       Jackson came to her house. She did not recall the time. Jackson stayed for only three or four
       minutes before heading to the friend’s house, or at least that was where the note said she was
       going.
¶ 40       Parker knew only what Jackson had written in the note, nothing more. Defense counsel
       asked Parker:
               “Q. Did you ask her about what she meant exactly?
               A. Yes.
               Q. Did she tell you what she meant?
               A. She wrote that George had beat her up again. ***
               Q. Do you recall exactly the wording of what was written between the two of you?


                                                -8-
              A. It said, Please call the police. George beat me up again. I’m going to my friend’s
           who lives on such and such an address. I believe it was Prairie Street, and she said,
           Thank you.
              Q. Okay. And that’s all?
              A. That’s all.”

¶ 41                                     C. Brian Allison
¶ 42       Brian Allison testified that on September 10, 2011, at 2:42 p.m., he was working as a
       Decatur police officer when he was dispatched to 2404 East Prairie Street to investigate a
       domestic disturbance. At that address, he met Teresa Jackson, who appeared to be “upset”
       and who was “very animated” as she attempted to communicate with him. She had a bruise
       under her right eye and blood on her left hand. Allison perceived she was “hearing impaired.”
¶ 43       The prosecutor asked Allison:
               “Q. And how did you communicate with her?
               A. I would write notes, and then she would either answer or she could use limited
           words or shake or nod her head and write down the answer.
               Q. And did she cooperate with you in answering your questions?
               A. Yes, she did.
               Q. As to the questions that you asked her, there’s just one thing that I want to clarify.
           You asked her the question, and correct me if I’m wrong, ‘Did he cause the bruises to
           your face and injury to your hands?’
               A. Yes, I did.
               Q. And did she answer out loud, ‘yes’?
               A. Yes.
               Q. So that wasn’t written down. That was an out loud answer?
               A. Yes.”
¶ 44       After taking photographs of Jackson’s injuries (People’s exhibits Nos. 1 through 4),
       Allison located defendant at 2473 East North Street and arrested him. He placed defendant
       in the backseat of the squad car and headed for the police station.
¶ 45       The prosecutor asked Allison:
               “Q. Now, after placing him in your car, did you attempt to advise him of his right to
           remain silent[?]
               A. I did.
               Q. And did he proceed to make some unsolicited statement?
               A. Yes, he did.
               Q. Did he appear to be intoxicated at this time?
               A. Yes, he did.
               Q. What gave you the impression that he was intoxicated?


                                                 -9-
                A. His speech was a little hard to understand, and he smelled of the odor of an
            alcoholic beverage.”
¶ 46        A video camera was mounted inside the squad car, and it was trained on defendant.
       People’s exhibit No. 6 was the audio-video recording, with the periods of silence edited out
       (or, more precisely, shortened). The recording was played for the jury while the jury followed
       along in a transcript, People’s exhibit No. 5.
¶ 47        People’s exhibit No. 6 is a digital video disc (DVD). In the recording, defendant is seated
       in the backseat of the squad car, shirtless, with his hands handcuffed behind his back. His
       head lolls around, and sometimes he lays his head back on the seat. We quote People’s
       exhibit No. 5, which appears to be an accurate transcription of the DVD:
                “OFFICER BRIAN ALLISON: George, you understand you have the right to remain
            silent, right?
                GEORGE APPELT: Shut the fuck up with that shit, man.
                OFFICER: Excuse me? Excuse me? I didn’t quite catch that.
                OFFICER: Do you understand you have the right to remain silent?
                GA: Bitch ass mother fuckers.
                GA: So when did I supposedly beat her up?
                GA: Fucking bitch ass mother-fuckers, man.
                GA: She got her ass beat, she needed that anyway.
                GA: That’s right, look stupid[,] mother fucker, that’s what you do best, right? Bitch
            ass nigger.
                GA: –sighs–
                GA: I shoulda went ahead and killed that mother fucking ho. Killed that mother
            fucker, man. Stinking mother fucking ho. Ride the fucking free life, ain’t paid shit,
            [unintelligible] up in my house, that’s alright, it’s over, that bitch is done.
                GA: Bitch ass mother fucker.”
¶ 48        After the jury viewed this audio-video recording from the squad car, the prosecutor asked
       Allison:
                “MS. KOLL: *** Now, Officer, did George ever in the time that you spent with him
            that morning report to you anything about a break-in at his house at 2473 East North
            Street?
                A. No, he did not.
                Q. Did he show you any damage to his house?
                A. No.
                Q. Did he express any concern over Teresa’s well-being?
                A. No.
                Q. Did he say anything about being innocent and that somebody else had done this?
                A. No.
                Q. Are the only statements that he made to you the statements that were captured in

                                                -10-
           the video we just watched?
               A. That’s correct.”
       The prosecutor said she had no further questions.
¶ 49       Before beginning his cross-examination, the defense counsel told the trial court he had
       an objection that should be heard outside the jury’s presence. The court excused the jury
       from the courtroom, and defense counsel moved for a mistrial on the ground that, by asking
       Allison if defendant had declared his innocence, the prosecutor had “improperly transfer[red]
       the burden upon the defense,” implanting in the jury’s mind an “improper belief that this
       defendant ha[d] to prove something.”
¶ 50       After hearing further discussion from both sides, the trial court asked defense counsel,
       by way of summary:
               “THE COURT: So your sole argument is the question, ‘Did he say anything about
           being innocent or that someone else did it’ is objectionable because it shifts the burden
           of proof?
               MR. RUETER: That certainly, yes.
               THE COURT: All right. I didn’t quite understand that was the basis of your
           objection. I disagree. I would overrule that objection for obvious reasons which is in the
           context of spontaneous statements about an incident that just took place, one would
           expect that, had it not happened, that an innocent person would make those statements.
           You can argue otherwise to the jury, but–so with that, with that better understanding of
           Mr. Rueter’s objection, it will be overruled.”
¶ 51       The jury returned to the courtroom, and defense counsel asked Allison:
               “Q. In part of your notes back and forth with Miss Jackson, you asked if–you wrote
           something to the effect of did–if he caused the injuries to her eye, hand, and back;
           correct?
               A. Correct.
               Q. And she didn’t write an answer to that, but your testimony is that she answered
           ‘yes’; is that right?
               A. Correct.
               Q. Did you ask–did you say at any time, ‘Did George cause the injuries to your eye,
           hand, and back?’
               A. I did not use the–I did not use ‘George,’ no. ***
               Q. So you didn’t take the time to make sure who that ‘he’ referred to?
               A. I didn’t believe I needed to.
               Q. So you didn’t do it?
               A. Correct.”
¶ 52       On redirect examination, the prosecutor asked Allison:
               “Q. Why didn’t you believe that you needed to say the word ‘George’ with each
           question you asked Teresa?


                                               -11-
              A. Well, George is the only person that was ever mentioned in the interview, and I
          just spent a few minutes specifically speaking about George–what’s his name? What’s
          his physical? And then I followed that up with ‘Did he cause these injuries to you?’ ”
¶ 53      On re-cross-examination, defense counsel asked Allison:
              “Q. Well, specifically what you asked was–after asking her her name and she giving
          a response to that and your asking her middle initial and date of birth, she gave you her
          middle name and her date of birth, you asked what his full name was, and she wrote
          ‘George Appelt.’ And then you asked, ‘How long have you dated?’ She wrote, ‘Ten
          years.’ You asked if they had any children. She said no. You asked what was his height,
          weight, hair, eye color, and so forth. So it was sometime after that that you asked this
          question at the very end of this written exchange, you asked about–in fact, you even
          wrote a thing about how you’re going to give her information on how to get an order of
          protection too; is that correct?
              A. Correct.
              Q. And after all of that, at the very end, you go back to asking ‘he.’ If he caused the
          injuries?
              A. Correct.
              Q. But you didn’t clarify who you meant by ‘he’?
              A. I never clarified ‘he,’ no.
              Q. And she never clarified who she meant by ‘he’?
              A. No.”
¶ 54      On redirect examination, the prosecutor asked Allison:
              “Q. Did Teresa ever say anything to you, or was any other possible suspect ever
          discussed?
              A. No.
              Q. She never brought up another individual?
              A. No.
              Q. So the only male pronoun ‘he’ or ‘his’ that was ever discussed was George?
              A. Correct.”

¶ 55                                   D. Richard Lohse
¶ 56      The State rested, and the defense called Richard Lohse. He testified that in September
       2011, he was building a house and that defendant was “helping [him] a little bit with it.”
       According to Lohse, defendant helped him with the house the night before defendant’s arrest.
¶ 57      Defense counsel asked Lohse:
              “Q. All right. What did he do with you at the house and what happened?
              A. I don’t know. We was doing some carpenter work or whatever. We got done that
          night, and we had us a couple beers or whatever. He stayed with me. We wasn’t going
          to drive or anything. We got up the next morning, and I went down, got him a 12 pack

                                               -12-
           for helping me, gave him a little bit of money. You know, it was probably somewhere
           around–I don’t know–10:30, maybe 12 somewhere I took him back to his house.
               Q. Now, did you go in when he went back to his house?
               A. No. I just pulled up to the side of the house, and there is–it’s like a two-story there,
           and there’s steps going up it. I made sure he got in, and I left.”
¶ 58       On cross-examination, Lohse testified that the house he was building was located at 3471
       Doneta Avenue and that he and defendant stayed overnight at that address the night before
       defendant’s arrest. The prosecutor asked Lohse:
               “Q. Had the defendant been drinking at all before you dropped him off that morning?
               A. Yeah. Well, he had a few beers that morning.
               Q. Around what time had he started drinking that morning?
               A. I don’t know. He had had–he didn’t drink the 12 pack. He had a few of them.”
¶ 59       Lohse denied ever having a conversation with Jackson about this case.

¶ 60                                         II. ANALYSIS
¶ 61                               A. The Sufficiency of the Evidence
¶ 62                                   1. Our Standard of Review
¶ 63        Citing People v. Smith, 185 Ill. 2d 532, 542 (1999), defendant argues we should reverse
       his conviction of aggravated battery if “the evidence is so unreasonable, improbable, or
       unsatisfactory as to justify a reasonable doubt of defendant’s guilt.” But if that is what we
       are supposed to decide–whether the evidence is so unreasonable, improbable, or
       unsatisfactory as to justify reasonable doubt–what was the jury supposed to decide? It was
       the jury’s job to decide whether the evidence was so unsatisfactory as to justify reasonable
       doubt or, conversely, whether the evidence was so satisfactory as to preclude reasonable
       doubt. On appeal, we do not retry the defendant. People v. Robinson, 213 Ill. App. 3d 1021,
       1025 (1991). Instead, looking at the evidence in the light most favorable to the prosecution,
       we ask whether any rational trier of fact could find the essential elements of the crime to be
       proved beyond a reasonable doubt. Smith, 185 Ill. 2d at 541; Robinson, 213 Ill. App. 3d at
       1025.
¶ 64        The crime in this case is aggravated battery as defined by section 12-3.05(d)(2) of the
       Criminal Code of 1961 (720 ILCS 5/12-3.05(d)(2) (West 2010) (added by Pub. Act 96-1551,
       art. 1, § 5 (eff. July 1, 2011))). That section provides: “A person commits aggravated battery
       when, in committing a battery, other than by discharge of a firearm, he or she knows the
       individual battered to be *** [a] person who is *** physically handicapped.” On appeal,
       defendant does not dispute that an aggravated battery within the meaning of section 12-
       3.05(d)(2) occurred. Rather, he disputes only one element of this charged offense, namely,
       that he is the one who committed the aggravated battery. Therefore, looking at the evidence
       in the light most favorable to the prosecution, we ask whether any rational trier of fact could
       find, beyond a reasonable doubt, that defendant was the person who committed the
       aggravated battery (or aggravated batteries) of Jackson on September 10, 2011. See Smith,
       185 Ill. 2d at 541.

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                      2. The Supposed Improbability That a Battered Woman
                       Would Try To Protect the Perpetrator, Her Boyfriend
¶ 65       “[A] conviction based upon testimony that is improbable, unconvincing, and contrary to
       human experience requires reversal.” People v. Vasquez, 233 Ill. App. 3d 517, 527 (1992).
       Defendant argues that if he “had actually attacked Jackson as brutishly depicted in the
       prosecution’s photographic exhibits,” it would be improbable, unconvincing, and contrary
       to human experience that Jackson tried to protect him in the trial by refusing to identify him
       as the attacker: that she disingenuously claimed not to know who had beaten her even though
       she well knew it was he who had done so.
¶ 66       On the contrary, victims of domestic violence can be very forgiving. After their bruises
       heal and some time passes, they commonly change their mind about testifying against the
       loved one who beat them up. “It is estimated that up to eighty percent of domestic violence
       victims either recant or refuse to testify against their batterers.” Kimberly D. Bailey, It’s
       Complicated: Privacy and Domestic Violence, 49 Am. Crim. L. Rev. 1777, 1785 (2012).
       This problem is widely known.

¶ 67                      3. The Supposed Unreliability of Communicating
                         With Jackson Without a Sign Language Interpreter
¶ 68       Defendant argues:
           “In [the State’s] desperat[e] reliance on [the testimony of Parker and Allison,] a crucial
           matter was omitted, which devalued the probative [effect] of this evidence: Jackson was
           severely hearing-impaired, which made communication with her unreliable, and hence
           untrustworthy.
                Without a hearing aid, Jackson averred that in order for her to adequately
           communicate, she needed a sign language interpreter [citation to record] ***.”
¶ 69       Actually, at the pages of the record that defendant cites, Jackson does not testify that she
       needs sign language interpreters in order to adequately communicate with people. Rather, she
       says “it’s much easier for [her] to communicate through these interpreters.” Using sign
       language is easier and faster than writing notes, just as talking is easier and faster than
       writing notes, but it does not follow that writing notes is an inadequate or unreliable method
       of communication. One would expect writing to be more careful and deliberative than sign
       language, just as it is more careful and deliberative than talking.
¶ 70       In her testimony, Jackson admitted she knew how to read and write simple English.
       Apparently, that was the only kind of English used in her written exchanges with Parker and
       Allison. Although she testified she had difficulty understanding “big words,” she denied that
       Allison used any “big words” when communicating with her in writing.
¶ 71       Evidently, Jackson was the one who did all the writing when she went to see Parker. In
       the trial, Parker quoted Jackson’s clear, simple written message from memory. We disagree
       with defendant that only a “trained professional interviewer” could have reliably
       communicated with Jackson.


                                                -14-
¶ 72                                 4. The Antecedent of “He”
¶ 73       Defendant argues that when Allison asked Jackson, “ ‘Did he cause the bruises to your
       face and injury to your hands?’ ” and Jackson answered yes, it is unclear that she understood
       Allison to mean defendant as opposed to some other, unspecified male. (Emphasis added.)
       But defendant was the only male previously mentioned in their written conversation.
       Interpreting the subsequent “he” as possibly meaning some male other than defendant would
       be unnatural. If a personal pronoun follows an antecedent–say, someone’s proper name–and
       corresponds in gender to the antecedent, the personal pronoun is understood to refer to the
       antecedent unless the context demands some other understanding. One must reasonably infer
       that, by “he,” Jackson understood Allison to mean the only male hitherto named, i.e., George
       Alan Appelt, date of birth: November 2, 1964.

¶ 74      5. The Probative Value of Defendant’s Drunken Statements in the Squad Car
¶ 75       According to defendant, the State “greatly exaggerated the probative value” of
       defendant’s video-recorded statements in the squad car, considering that he was drunk when
       he made the statements and considering that he asked Allison, “So when did I supposedly
       beat her up?”
¶ 76       When we look at these statements in the light most favorable to the prosecution, we
       regard them as having high probative value, for three reasons. See Smith, 185 Ill. 2d at 541.
       First, defendant revealed his malice toward Jackson. He thought she deserved to be beaten
       for sponging off him. Arguably, if that is what he thought, he had, in his own mind, a reason
       to beat her. Second, the jury saw how angry and combative defendant could be when he was
       drunk. Third and most important, defendant implied that he did in fact beat Jackson. We refer
       to his remark “I shoulda went ahead and killed that mother fucking ho.” If A accuses B of
       blackening C’s eye and B responds, “I should have gone ahead and killed him,” B strongly
       implies that he did indeed blacken C’s eye. The phrase “should have gone ahead and killed
       him” signifies a violent procedure that B started and, to his regret, left unfinished.

¶ 77                                  6. The “Ironclad Alibi”
¶ 78       According to defendant, Richard Lohse provided defendant with “an ironclad alibi.”
       Lohse testified that, the day before defendant’s arrest, defendant helped Lohse with a new
       house Lohse was building some 6.25 miles from defendant’s apartment, that defendant and
       Lohse stayed overnight at this house, and that Lohse did not give defendant a ride home until
       approximately noon–two hours after the last attack on Jackson.
¶ 79       The short answer to this contention is that the jury did not have to believe Lohse,
       considering that, immediately after the attacks, Jackson twice identified defendant as her
       attacker. See People v. Palmer, 125 Ill. App. 3d 703, 711 (1984). “The jury is in a superior
       position to observe the witnesses and consider their interest in exonerating defendant.” Id.
       Jackson testified that Lohse was defendant’s friend. The jury could have reasonably inferred
       that Lohse was covering for him.
¶ 80       In sum, looking at all the evidence in the light most favorable to the prosecution, we


                                               -15-
       conclude that a rational jury could find, beyond a reasonable doubt, that defendant was the
       person who committed the aggravated battery of Teresa Jackson on September 10, 2011. See
       Smith, 185 Ill. 2d at 541.

¶ 81             B. The Alleged Shifting of the Burden of Proof to the Defense
¶ 82                                1. Our Standard of Review
¶ 83       After playing for the jury the audio-video recording from inside the squad car, the
       prosecutor asked Allison a series of questions, including “Did [defendant] say anything about
       being innocent and that somebody else had done this?” “No,” Allison answered. Then the
       prosecutor asked: “Are the only statements that he made to you the statements that were
       captured in the video we just watched?” “That’s correct,” Allison said.
¶ 84       Defense counsel moved for the declaration of a mistrial, arguing that the prosecution had
       “improperly transfer[red] the burden upon the defense” by asking Allison whether defendant
       had “sa[id] anything about being innocent and that somebody else had done this.” The trial
       court asked defense counsel:
               “THE COURT: So your sole argument is the question, ‘Did he say anything about
           being innocent or that someone else did it’ is objectionable because it shifts the burden
           of proof?
               MR. REUTER: That certainly, yes.
               THE COURT: All right. I didn’t quite understand that was the basis of your
           objection. I disagree.”
       The court overruled the objection.
¶ 85       By overruling the objection, the trial court necessarily denied the motion for a mistrial.
       We ask whether the denial of the motion for a mistrial was an abuse of discretion. See People
       v. McDonald, 322 Ill. App. 3d 244, 250 (2001). We apply the same deferential standard of
       review to the evidentiary ruling. See People v. Gist, 2013 IL App (2d) 111140, ¶ 11.
¶ 86       A decision is an abuse of discretion only if it is illogical, arbitrary, or contrary to law.
       State Farm Fire & Casualty Co. v. Leverton, 314 Ill. App. 3d 1080, 1083 (2000). In other
       words, a decision is an abuse of discretion only if no reasonable person could agree with the
       decision. Gist, 2013 IL App (2d) 111140, ¶ 11.

¶ 87       2. The Impossibility of Shifting the Burden of Proof by Asking What
                   Defendant Did Not Say in a Pretrial Statement to the Police
¶ 88       Would all reasonable persons have to agree that the ground of defense counsel’s
       objection was correct? Again, defense counsel objected that the prosecutor had shifted the
       burden of proof to the defense by asking Allison: “Did he say anything about being innocent
       and that somebody else had done this?” As defense counsel confirmed to the trial court, this
       supposed shifting of the burden of proof was the sole ground on which he was objecting.
       When an objection is made on a particular ground, all other, unexpressed grounds of
       objection are forfeited. People v. Massie, 137 Ill. App. 3d 723, 728 (1985).


                                                -16-
¶ 89        So, when we scrutinize the prosecutor’s question to Allison–“Did [defendant] say
       anything about being innocent and that somebody else had done this?”–the only issue before
       us is whether that question shifted the burden of proof to the defense. Defendant raises other
       issues in his brief, namely, whether the question violated due process by unfairly penalizing
       him for exercising his right to remain silent, a right that Allison had recited to him in the
       squad car (and which, actually, defendant declined to exercise) (see Anderson v. Charles, 447
       U.S. 404, 408 (1980); Doyle v. Ohio, 426 U.S. 610, 618 (1976)), and whether defendant’s
       not declaring his innocence to Allison was relevant (see People v. Lewerenz, 24 Ill. 2d 295,
       299 (1962); People v. Rothe, 358 Ill. 52, 57 (1934)). But those issues, which are forfeited
       (see Massie, 137 Ill. App. 3d at 728), are different from the issue of whether the prosecutor
       shifted the burden of proof. A violation of Doyle or Lewerenz presupposes that the State used
       the defendant’s pretrial silence as evidence in its own case, to help carry its own burden of
       proof, not that the State thereby shifted the burden of proof to the defense. See United States
       v. Hampton, 843 F. Supp. 2d 571, 578-79 (E.D. Pa. 2012).
¶ 90        A prosecutor shifts the burden of proof by suggesting to the jury that the defendant was
       obligated to present evidence in the trial. People v. Giangrande, 101 Ill. App. 3d 397, 401-02
       (1981). For example, the prosecutor criticizes the defendant’s failure to call witnesses at the
       trial who were equally available to the State and the defense. People v. Wills, 151 Ill. App.
       3d 418, 421 (1986). But cf. People v. Morando, 169 Ill. App. 3d 716, 735 (1988) (“Although
       it is normally improper for the prosecution to comment on a defendant’s failure to call a
       witness who is equally available to the prosecution [citations], such comment is not improper
       if the witness is an alibi witness or if the witness is not equally available [citation].”). Or the
       prosecutor criticizes the defendant’s decision not to testify. People v. Lyles, 106 Ill. 2d 373,
       390 (1985).
¶ 91        In the present case, the prosecutor did none of those things. She did not criticize
       defendant for failing to present evidence in the trial. Rather, she elicited evidence of what
       happened prior to the trial. She elicited evidence that as defendant spontaneously made
       remarks to Allison regarding the beating Jackson had received, defendant never added that
       he was innocent and that someone else had done the beating. Arguably, if defendant was
       handcuffed in the backseat of a squad car and was being transported to jail on the accusation
       that he had beaten Jackson, and if he was bold and crass enough to say she deserved to be
       beaten, one would expect that–if indeed the accusation against him were false–he would
       hasten to add, “But I wasn’t the one who did it.” See United States v. Goldman, 563 F.2d
       501, 503 (1st Cir. 1977) (“A defendant cannot have it both ways. If he talks, what he says or
       omits is to be judged on its merits or demerits, and not on some artificial standard that only
       the part that helps him can be later referred to.” (Internal quotation marks omitted.)). By
       eliciting evidence that defendant omitted that qualification from his statement in the squad
       car, the State did not shift the burden of proof to the defense but, rather, augmented the
       evidence in its own case. Therefore, we find no abuse of discretion in either the overruling
       of the objection or the denial of the motion for a mistrial.




                                                  -17-
¶ 92                                   III. CONCLUSION
¶ 93      For the foregoing reasons, we affirm the trial court’s judgment, and we award the State
       $50 in costs against defendant.

¶ 94      Affirmed.




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