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                                  Appellate Court                            Date: 2018.02.01
                                                                             16:23:39 -06'00'




                      People v. Parrott, 2017 IL App (3d) 150545



Appellate Court       THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption               RANDALL W. PARROTT, Defendant-Appellant.



District & No.        Third District
                      Docket No. 3-15-0545



Rule 23 order filed   August 17, 2017
Motion to publish
allowed               October 5, 2017
Opinion filed         October 5, 2017



Decision Under        Appeal from the Circuit Court of Mercer County, No. 14-CM-129; the
Review                Hon. Richard A. Zimmer, Judge, presiding.



Judgment              Affirmed.


Counsel on            Michael J. Pelletier, Peter A. Carusona, and Mark D. Fisher, of State
Appeal                Appellate Defender’s Office, of Ottawa, for appellant.

                      Meeghan N. Lee, State’s Attorney, of Aledo (Patrick Delfino,
                      Lawrence M. Bauer, and Jasmine Morton, of State’s Attorneys
                      Appellate Prosecutor’s Office, of counsel), for the People.
     Panel                     JUSTICE O’BRIEN delivered the judgment of the court, with
                               opinion.
                               Presiding Justice Holdridge and Justice Lytton concurred in the
                               judgment and opinion.


                                                OPINION

¶1         Defendant, Randall W. Parrott, appeals his conviction for domestic battery, arguing that
       (1) the State failed to disprove his affirmative defense and (2) he was denied his right to
       confront his accuser. We affirm.

¶2                                                  FACTS
¶3         Defendant was charged with four counts of domestic battery (720 ILCS 5/12-3.2(a)(1)
       (West 2014)). The counts alleged that defendant knowingly made physical contact of an
       insulting nature with E.S., R.V., G.V., and L.S.
¶4         The case proceeded to a bench trial. Defendant raised the affirmative defense of reasonable
       parental discipline. The State moved for admittance of hearsay statements under section
       115-10 of the Code of Criminal Procedure of 1963 (Code). 725 ILCS 5/115-10 (West 2014).
       Defendant’s attorney stated, “It specifically states domestic battery [against a child under the
       age of] 13. *** [I]f they testify, it appears that the out-of-court statement can come in as well.”
       The court asked defense counsel if he was contesting the hearsay evidence. Defense counsel
       responded, “Subject to them testifying, no.” The State said, “[T]he children will be here to
       testify.”
¶5         Kathy Olsen testified that she was the principal at Mercer County Intermediate School. In
       September 2014, R.V. was 10 years old and got in trouble for throwing paper out of the
       window of the school bus. Olsen approached R.V. in his classroom and spoke with him outside
       the classroom door. Olsen gave R.V. a disciplinary card and told him he needed to have it
       signed by his parents. R.V. took the card and went back into the classroom. Olsen later got a
       call from R.V.’s teacher telling her that R.V. was crawling under desks and crying. Olsen took
       R.V. to her office. R.V. was “distraught” and asked her not to call his parents. Olsen stated:
                    “I basically just said, you know, this is customary, this is what we need to do, and
                why are you so opposed to me calling home? And at that point he started to tell that,
                you know, he gets beat with a belt at home and that he would get in big trouble. And
                then from there it proceeded to other things such as being denied food. He had missed
                the previous day, so then he recounted what had happened the previous day as far as
                several of the boys getting whipped because of the dispute with eating a Subway
                sandwich or something that was supposedly [defendant’s].”
       R.V. told Olsen that L.S. and E.S. were hit with the belt six or seven times. Olsen reported the
       incident to the Department of Children and Family Services (DCFS).
¶6         Deputy Brian Evans testified that he was a patrol officer with the Mercer County sheriff’s
       department. He received a call from DCFS investigator Penny Blaser about possible child
       abuse. Evans accompanied Blaser to meet with defendant. Defendant discussed his discipline
       of the children with Evans and Blaser. Evans stated: “[Defendant said] that he grounds them,

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       he stand them in the corner, and he makes them do the ‘dead cockroach’ is how he explained it.
       And then when [Blaser] said that the children *** told her that [defendant] had whipped them
       the night before, he said I used to whip them with a belt, I no longer do that.”
¶7         Evans then checked the children for injuries. E.S. was six years old and had two red welts
       about 2½ inches long on the upper portion of the back of his legs. Evans said it was “about the
       width of a belt in [his] opinion.” Blaser took photos of the injuries, which were admitted into
       evidence. E.S. told Evans that he had been whipped with a belt the night before “for eating a
       biscuit.”
¶8         Evans examined G.V., who was four years old, but did not notice any welts on her. R.V.
       told Evans he had been whipped with a belt the night before. L.S., who was eight years old,
       also told Evans he had been whipped with a belt the night before. R.V. retrieved the belt used
       for the whipping.
¶9         Blaser testified that she went to the school to meet with Olsen and interview R.V. R.V. told
       Blaser, “that everybody gets spanked at their house, everybody gets it with a belt, that he was
       scared to go home. *** [E.S.] got it the night before with the belt because he ate [defendant’s]
       biscuit and he blamed it on [L.S.], so [defendant] took the belt to [E.S.]” Blaser interviewed all
       the children together, and they all said they get hit with a belt when they get in trouble. E.S.
       said “he had gotten hit the night before because he ate [defendant’s] biscuit.”
¶ 10       E.S. testified that defendant never hit him or his siblings with a belt. Defendant did not
       cross-examine E.S.
¶ 11       The court granted defendant’s motion for directed verdict with regard to count III,
       regarding G.V.
¶ 12       Defendant did not present any evidence.
¶ 13       The court found defendant not guilty of counts II and IV, regarding, R.V. and L.S.
       However, the court found defendant guilty of count I. Specifically, the court stated:
                   “With respect to Count 1 [E.S.], the statements attributed to the minor are much
               more specific in the Court’s mind than on the other incidents. The Court found the
               deputy very credible in his testimony as far as what he did, what he saw and what he
               was told. And I believe he was told by the minor what he says he was told. He seemed
               very straight forward and forthright in his testimony. Everything about the minor in
               that seems consistent up until the testimony of the minor today. But we have a picture
               here and as I sit here today, I’m unaware of any law that says if a witness denies
               something at trial, that that in and of itself results in a not guilty. Maybe there’s some
               law out there that says that, but I’m unaware of.
                   But I think based upon the consistency of the statements I heard, particular the
               deputy’s testimony about what he was told, and the pictures, which appear consistent
               with that, I do think the State’s met their burden on Count 1 and the Defendant is found
               guilty of Count 1 as it relates to [E.S.]”
       Defense counsel asked the court for clarification regarding its finding on the affirmative
       defense and whether it was reasonable discipline. The court said, “Given the nature of the
       discipline, nature of the alleged infraction, not reasonable. I see marks. *** And I would go
       with [the State’s] argument and I’m somewhat accepting his statement. *** This was a
       whipping with a belt.”



                                                   -3-
¶ 14       On June 30, 2015, defendant was sentenced to 12 months’ probation and 60 days’ jail time,
       with 8 days already served and the rest stayed pending compliance. On July 28, 2015, 28 days
       after he was sentenced, defendant appeared in court and stated he wanted to appeal. The record
       does not contain a report of proceedings for that day, but the docket sheet states, “Def by PD
       Dalton. State by ASA Lee. [C]ause on as walk-in. PD Dalton reports the Def wishes to appeal.
       Granted. Court orders: Clerk to file an appeal. Appellate Public Defender to be appointed.”
       However, the notice of appeal was not actually filed until July 31, 2015, one day past the
       30-day filing deadline. No motion for leave to file late notice of appeal was filed within the
       six-month time period.

¶ 15                                            ANALYSIS
¶ 16       On appeal, defendant argues that (1) he was not proved guilty beyond a reasonable doubt as
       the State failed to disprove the affirmative defense of reasonable parental discipline of E.S. and
       (2) he was denied his sixth amendment right to confront his accuser where E.S. testified that
       defendant never hit him, but the court found him guilty based on E.S.’s previous hearsay
       statements. The State argues that we do not have jurisdiction to consider this case. Beginning
       with a consideration of our jurisdiction, we examine each of the arguments in turn.

¶ 17                                             I. Jurisdiction
¶ 18       At the outset, the State challenges our jurisdiction to consider this case as the notice of
       appeal was filed by the clerk one day late. As the notice of appeal was late, the State argues
       defendant needed to have filed a motion for leave to file late notice of appeal for us to have
       jurisdiction. Defendant argues that we have jurisdiction because the late filing of the notice of
       appeal was the clerk’s fault, not defendant’s. Defendant notes that he told the court he wanted
       to appeal 28 days after he was sentenced, 2 days before the deadline to file a notice of appeal in
       his case. That same day, the court ordered the clerk to file a notice of appeal, but the clerk did
       not do so until one day after the filing deadline, 31 days after defendant was sentenced. Both
       parties cite People v. Sanders, 40 Ill. 2d 458 (1968), in support of their positions. Because we
       find that defendant asked to appeal within the time frame and the clerk failed to file the notice
       of appeal on time, we find that we have jurisdiction to consider the case.
¶ 19       In Sanders, the defendant, within 30 days of sentencing, asked the circuit court if he could
       appeal his case and asked for a transcript. Id. at 459-60. The record did not show that the court
       responded to these requests, and no action was taken regarding defendant’s appeal. Id. at 460.
       The defendant then filed a motion for leave to file late notice of appeal, which was denied by
       the appellate court. Id. at 459. Our supreme court found that the appellate court should have
       granted defendant’s motion for leave to file late notice of appeal. Id. at 462-63. In doing so, the
       court stated:
                    “It is our opinion that under the circumstances here present the defendant had in
               open court indicated his desire to appeal his conviction and that it was, therefore, the
               duty of the trial court clerk to prepare and file the proper notice of appeal. Supreme
               Court Rule 606(c) provides that, upon a showing of reasonable excuse for failure to file
               a notice of appeal on time, a defendant may request late leave to appeal within six
               months of the expiration of the time for filing a notice of appeal. We hold that the
               failure of the trial court clerk to prepare and file defendant’s notice of appeal provided
               reasonable excuse for the defendant’s failure to file his own notice of appeal on time

                                                    -4-
               and that, therefore, the appellate court erred in dismissing defendant’s motion
               requesting leave to file a late appeal.” Id. at 462.
¶ 20       We acknowledge that Sanders is factually distinguishable in that the defendant in that case
       filed a motion for leave to file late notice of appeal, the denial of which was the subject of the
       court’s review, and in the instant case, defendant did not file a motion for leave to file late
       notice of appeal. However, we believe this factual distinction is one without legal significance.
       The supreme court stated it is “clear that once a defendant in a criminal matter requests an
       appeal the duty of filing the notice of appeal is upon the clerk of the trial court.” Id. at 461.
       Here, defendant asked the court to file the notice of appeal and the court directed the clerk to do
       so. It was reasonable for defendant to rely on the court’s direction to the clerk as meaning the
       clerk was directed to file a timely notice of appeal. Therefore, we consider the notice of appeal
       timely filed. We will now consider the merits of defendant’s appeal.

¶ 21                                       II. Affirmative Defense
¶ 22       Defendant first contends that he was not proven guilty of domestic battery beyond a
       reasonable doubt because the State failed to disprove the affirmative defense of reasonable
       parental discipline. When taking the evidence in the light most favorable to the State, we find
       that it was sufficient to find defendant guilty of domestic battery and disprove the affirmative
       defense.
¶ 23       Section 12-3.2(a)(1) of the Code provides: “A person commits domestic battery if he or she
       knowingly without legal justification by any means *** [c]auses bodily harm to any family or
       household member.” 720 ILCS 5/12-3.2(a)(1) (West 2014). However, Illinois common law
       recognizes an affirmative defense to domestic battery of reasonable parental discipline. See
       People v. Green, 2011 IL App (2d) 091123, ¶ 16; Restatement (Second) of Torts § 147(1)
       (1965) (“A parent is privileged to apply such reasonable force or to impose such reasonable
       confinement upon his child as he reasonably believes to be necessary for its proper control,
       training, or education.”). Such an affirmative defense, like self-defense, provides a legal
       justification for an otherwise criminal act in order to balance a parent’s right to privacy in
       raising their children with the State’s interest in preventing the mistreatment of children. See
       Green, 2011 IL App (2d) 091123, ¶¶ 14, 16.
¶ 24       When the affirmative defense of reasonable parental discipline is raised, “the State must
       sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue
       together with all the other elements of the offense.” See 720 ILCS 5/3-2(b) (West 2014); see
       also Green, 2011 IL App (2d) 091123, ¶ 16. Here, the State had to prove that (1) defendant
       caused bodily harm to E.S., (2) he did so knowingly and without legal justification, and (3) the
       discipline exceeded the standards of reasonableness. See Green, 2011 IL App (2d) 091123,
       ¶ 16. Defendant only challenges that the State failed to prove the third component, that the
       discipline was unreasonable.
¶ 25       In considering whether an act of corporal punishment was reasonable, it is appropriate for
       the court to consider (1) the degree of physical injury inflicted upon the child, (2) the
       likelihood of future punishment that may be more injurious, (3) the fact that any injury resulted
       from the discipline, (4) the psychological effects on the child, and (5) “the circumstances
       surrounding the ‘discipline,’ including whether the parent was calmly attempting to discipline
       the child or whether the parent was lashing out in anger.” In re F.W., 261 Ill. App. 3d 894, 903
       (1994).

                                                    -5-
¶ 26        “When presented with a challenge to the sufficiency of the evidence, it is not the function
       of this court to retry the defendant.” People v. Collins, 106 Ill. 2d 237, 261 (1985). Rather,
       “ ‘the relevant question is 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.) Id. (quoting Jackson v. Virginia, 443
       U.S. 307, 319 (1979)). “This means the reviewing court must allow all reasonable inferences
       from the record in favor of the prosecution.” People v. Cunningham, 212 Ill. 2d 274, 280
       (2004). “A criminal conviction will not be set aside 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.
¶ 27        Here, the evidence, when taken in the light most favorable to the State, showed that E.S.,
       who was six years old, was hit with a belt by defendant for either eating defendant’s biscuit or
       eating the biscuit and blaming it on his brother. E.S. told Evans and Blaser that he had been hit
       with a belt. The narrative was further corroborated by R.V.’s statements to Olsen and Blaser.
       R.V. told Olsen that E.S. was hit six or seven times. Evans testified that he saw two red welts
       on the back of E.S.’s legs that, in his opinion, were the width of a belt. The court found Evans
       to be very credible. We defer to this credibility finding. People v. Siguenza-Brito, 235 Ill. 2d
       213, 228 (2009). When considering the facts that E.S. (1) was six years old, (2) was hit with a
       belt for the trivial transgression of eating a biscuit, (3) was hit six or seven times, and (4) had
       welts on his legs, we find the evidence was sufficient to disprove the affirmative defense.
¶ 28        We acknowledge that the court did not make express findings of fact regarding the
       likelihood of more injurious future punishment, the psychological effects of discipline on the
       child, or whether defendant lashed out in anger or calmly disciplined the child. The court need
       not expressly consider each factor (supra ¶ 25) when determining reasonableness. Initially, we
       note that each factor may not be applicable in every case. Moreover, simply because the court
       did not expressly note each factor does not mean it did not consider it. People v. Phillips, 392
       Ill. App. 3d 243, 265 (2009) (“a trial court is presumed to know the law and apply it properly”).
       Finally, the factor of the degree of physical injury weighed heavily against any finding of
       reasonableness in the instant case. Viewing the above facts in totality, we find it was rational
       for the court to determine that the discipline was unreasonable.

¶ 29                                    III. Right to Confront Accuser
¶ 30       Defendant next contends that he “was denied his sixth amendment right to confront his
       accuser where the complainant testified defendant never hit him but the judge found defendant
       guilty of domestic battery based on the complainant’s hearsay statements.” Defendant admits
       that the issue is forfeited as he did not object to the statements or include the issue in a posttrial
       motion, but asks us to consider the issue under both prongs of the plain error doctrine. See
       People v. Enoch, 122 Ill. 2d 176 (1988). “The first step in plain-error review is to determine
       whether an error occurred.” People v. Kitch, 239 Ill. 2d 452, 462 (2011). Because we find that
       E.S. was present and able to answer any questions on cross-examination, we find that
       defendant was not denied his right to confront his accuser, and thus no error occurred.
                    “In Crawford v. Washington, 541 U.S. 36, 53-54 (2004), the United States Supreme
               Court held that, under the confrontation clause, testimonial statements of a witness who
               does not testify at trial are inadmissible unless (1) the witness is ‘unavailable’ and (2)
               the defendant had a prior opportunity to cross-examine the witness. When the declarant

                                                     -6-
                appears for cross-examination at trial, however, the confrontation clause ‘places no
                constraints at all on the use of [the] prior testimonial statements.’ ” In re Brandon P.,
                2013 IL App (4th) 111022, ¶ 45 (quoting Crawford, 541 U.S. at 59 n.9).
       Section 115-10 of the Code further allows testimony of out-of-court statements made by a
       child-victim if the child testifies at the proceeding or is unavailable as a witness and there is
       corroborative evidence of the act that is the subject of the statements. 725 ILCS
       5/115-10(b)(2)(B) (West 2014). “[T]he key inquiry when determining whether a declarant is
       available for cross-examination is whether the declarant was ‘present for cross-examination
       and answered questions asked of her by defense counsel.’ ” Brandon P., 2013 IL App (4th)
       111022, ¶ 46 (quoting People v. Bryant, 391 Ill. App. 3d 1072, 1083 (2009)).
¶ 31       Here, Evans and Blaser testified that E.S. had told them that defendant hit him with a belt
       for eating a biscuit. E.S. then testified that defendant never hit him. Defendant did not
       cross-examine E.S. Though E.S. did not testify consistently with his prior statements to Evans
       and Blaser, he did testify and was available for cross-examination.
                “ ‘Where a defendant does not attempt to cross-examine a witness on [his or] her
                out-of-court statements, he cannot complain that the witness was unavailable for
                cross-examination. [Citation.] A witness who is present for cross-examination and
                answers questions is available for cross-examination even when defense counsel
                chooses to let the witness’s direct testimony stand. [Citation.] *** “In a situation such
                as this, defense counsel is placed in a precarious position. In general, during any trial,
                an attorney does not want to ask a question if he does not know how the witness will
                answer. Further, an attorney surely does not want to elicit an answer that will implicate
                his client. However, strategic considerations such as these do not make the witness
                unavailable for cross-examination.” ’ ” Id. ¶ 50 (quoting People v. Garcia-Cordova,
                2011 IL App (2d) 070550-B, ¶ 63, quoting People v. Lara, 2011 IL App (4th)
                080983-B, ¶ 51).
       E.S. was available for cross-examination. The fact that defendant chose not to cross-examine
       him about his prior statements does not change this fact.
¶ 32       In coming to this conclusion, we reject defendant’s reliance on People v. Learn, 396 Ill.
       App. 3d 891 (2009), for the proposition that the minor is required “to actually accuse the
       defendant of something” when testifying in order for the hearsay statements to be considered.
       We find Learn to be distinguishable from the instant case. In Learn, the alleged victim
       testified, but did not answer questions about the sexual acts the defendant had purportedly
       performed. Id. at 900. Specifically, when asked questions about the abuse, the alleged victim
       began to cry and never spoke about the abuse. Id. at 896-97. Stated another way, the alleged
       victim in Learn neither confirmed nor denied that the defendant had sexually abused her.
       Therefore, there was no testimony upon which the defendant could cross-examine the alleged
       victim. Here, E.S. testified at trial that defendant did not hit him with a belt. Thus, defendant
       had the opportunity to impeach E.S. or inquire why E.S. previously told Evans and Blaser the
       defendant hit him. Defendant chose not to do so.

¶ 33                                       CONCLUSION
¶ 34      The judgment of the circuit court of Mercer County is affirmed.



                                                    -7-
¶ 35   Affirmed.




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