                                    2013 IL App (4th) 120394                   FILED
                                                                             October 4, 2013
                                         NO. 4-12-0394                        Carla Bender
                                                                          4th District Appellate
                                IN THE APPELLATE COURT                          Court, IL

                                         OF ILLINOIS

                                      FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,            )     Appeal from
           Plaintiff-Appellee,                  )     Circuit Court of
           v.                                   )     Macon County
GEORGE A. APPELT,                               )     No. 11CF1303
           Defendant-Appellant.                 )
                                                )     Honorable
                                                )     Timothy J. Steadman,
                                                )     Judge Presiding.
______________________________________________________________________________

               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.

¶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.



                                                -2-
¶ 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:




                                               -3-
                        "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).

¶ 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.



                                                -4-
                                 ***

          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?'



                                 -5-
                      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, 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.




                                               -6-
                        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?



                                                 -7-
                      A. Well, I remember—it was a long time ago, and that's

              what happened, and I was reminded of that.

                      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.




                                             -8-
¶ 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."

¶ 28                          3. Redirect Examination by the Prosecutor




                                               -9-
¶ 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.



                                                 - 10 -
¶ 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."



                                       - 11 -
¶ 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?




                                                - 12 -
                        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?




                                                - 13 -
                      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?'



                                                - 14 -
                       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?

                       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



                                               - 15 -
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.




                                               - 16 -
              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 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



                                                - 17 -
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.




                                              - 18 -
                 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?

                 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



                                           - 19 -
       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?



                                       - 20 -
                      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 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."




                                             - 21 -
¶ 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




                                              - 22 -
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.

¶ 65                  2. The Supposed Improbability That a Battered Woman
                      Would Try To Protect the Perpetrator, Her Boyfriend

¶ 66           "[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.

¶ 67           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

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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.

¶ 68                   3. The Supposed Unreliability of Communicating
                        With Jackson Without a Sign Language Interpreter

¶ 69           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] ***."

¶ 70           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.

¶ 71           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

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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.

¶ 72           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.

¶ 73                                 4. The Antecedent of "He"

¶ 74           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.

¶ 75           5. The Probative Value of Defendant's Drunken Statements in the Squad Car

¶ 76           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?"




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¶ 77           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.

¶ 78                                   6. The "Ironclad Alibi"

¶ 79           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.

¶ 80           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.




                                                - 26 -
¶ 81           In sum, looking at all the evidence in the light most favorable to the prosecution,

we 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.

¶ 82           B. The Alleged Shifting of the Burden of Proof to the Defense

¶ 83                                  1. Our Standard of Review

¶ 84           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.

¶ 85           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.




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¶ 86           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.

¶ 87           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.

¶ 88           2. The Impossibility of Shifting the Burden of Proof By Asking What
                   Defendant Did Not Say in a Pretrial Statement to the Police

¶ 89           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).

¶ 90           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

                                               - 28 -
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).

¶ 91           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).

¶ 92           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



                                               - 29 -
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.

¶ 93                                    III. CONCLUSION

¶ 94           For the foregoing reasons, we affirm the trial court's judgment, and we award the

State $50 in costs against defendant.

¶ 95           Affirmed.




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