                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                       People v. Westmoreland, 2013 IL App (2d) 120082




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    FRANK J. WESTMORELAND, JR., Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-12-0082


Filed                      September 24, 2013


Held                       Defendant’s conviction for armed violence based on beating a child with
(Note: This syllabus       a belt was reversed on the ground that the belt was not a category III
constitutes no part of     dangerous weapon, and the cause was remanded for sentencing on
the opinion of the court   defendant’s merged conviction for aggravated battery of a child.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Du Page County, No. 11-CF-218; the
Review                     Hon. Blanche Hill Fawell, Judge, presiding.



Judgment                   Affirmed in part and reversed in part; cause remanded.
Counsel on                 Thomas A. Lilien and Kathleen J. Hamill, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman and
                           Edward R. Psenicka, Assistant State’s Attorneys, of counsel), for the
                           People.


Panel                      JUSTICE HUTCHINSON delivered the judgment of the court, with
                           opinion.
                           Justices Schostok and Hudson concurred in the judgment and opinion.




                                            OPINION

¶1          Defendant, Frank J. Westmoreland, Jr., appeals his conviction of armed violence (720
        ILCS 5/33A-2(a) (West 2010)) in connection with the January 17, 2011, beating of a child
        with a belt. He contends that the evidence was insufficient to support his armed violence
        conviction because the belt was not a category III dangerous weapon under section 33A-
        1(c)(3) of the Criminal Code of 1961 (the Code) (720 ILCS 5/33A-1(c)(3) (West 2010)). He
        also contends that a misdemeanor that was enhanced to a felony for sentencing purposes was
        improperly used as the predicate felony for the armed violence conviction and that his
        counsel was ineffective for failing to impeach the victim’s mother with a time card showing
        that she was not at work on the day of the offense. We agree that, under the circumstances
        of this case, the belt was not a category III dangerous weapon. Accordingly, we reverse the
        armed violence conviction without addressing whether a misdemeanor that was enhanced to
        a felony can serve as the predicate felony for that offense. However, we hold that counsel
        was not ineffective. Thus, we remand for sentencing on a merged conviction of aggravated
        battery of a child (720 ILCS 5/12-4.3(a-5) (West 2010)) and otherwise affirm.

¶2                                      I. BACKGROUND
¶3          On February 24, 2011, defendant was indicted on multiple counts, including armed
        violence and multiple counts of aggravated battery of a child. The armed violence count
        alleged that defendant, while committing domestic battery, beat a household member, E.R.,
        with a belt, causing bodily harm. The belt was alleged to be a category III dangerous weapon
        under section 33A-1(c)(3). The charge further alleged that defendant had previously been
        convicted of aggravated battery of a child, which would enhance the domestic battery alleged
        in the indictment from a misdemeanor to a Class 4 felony. 720 ILCS 5/12-3.2(b) (West
        2010). Defendant had actually pleaded guilty to a reduced charge of aggravated battery, but
        that too would serve to enhance the domestic battery to a Class 4 felony. Id. On July 19,

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     2011, the trial court conducted a bench trial.
¶4        Evidence at trial showed that, on January 31, 2011, officers responded to a call reporting
     that a child, E.R., was being whipped or beaten in an apartment. When officers arrived,
     E.R.’s sister, S.R., urged E.R. to come out of the apartment. E.R. indicated that he had been
     hit with a belt by defendant. E.R. went to the hospital to be treated, and defendant, who lived
     at the apartment and babysat E.R., was arrested. Physicians who treated E.R. testified about
     his injuries, his treatment, and statements he made to them about being hit with a belt.
¶5        E.R. testified that, on one day, defendant hit him hard four times with a belt and he went
     to the hospital. E.R. also testified about another day when he was home, his sister did not
     have school, and his mother was at work. He said that, on that day, defendant hit him really
     hard three or more times with a belt. S.R. testified that she did not have school that day
     because it was Martin Luther King, Jr., Day (January 17, 2011). She said that, while her
     mother was at work, she saw defendant hit E.R. a lot of times with a belt. E.R.’s mother,
     L.R., also testified that S.R. did not have school that day. L.R. said that she was at work that
     day. A studded belt was found at the apartment, hanging inside of a bedroom closet. A letter
     defendant wrote to his aunt was admitted into evidence. That letter stated in part: “Sents [sic]
     when was it illegal to give a child a whipping with a belt?” The parties stipulated that
     defendant had previously been convicted of aggravated battery.
¶6        At the end of the State’s case, defendant argued that the State failed to prove him guilty
     of armed violence beyond a reasonable doubt because a belt was not a category III dangerous
     weapon under section 33A-1(c)(3) of the Code. He did not argue that a misdemeanor
     domestic battery that has been enhanced to a felony for sentencing purposes could not be
     “any felony” under section 33A-2(a) of the Code (720 ILCS 5/33A-2(a) (West 2010)).
¶7        Defendant testified that, on January 31, 2011, E.R. had been provoking the family dog
     and defendant told E.R. to quit hurting the dog. Defendant said that E.R. laughed at him and
     that defendant took his belt off, grabbed E.R.’s arm, and hit him four or five times. However,
     he denied using the belt to hit E.R. Defendant said that he also made E.R. stand in a corner.
     He then left the apartment to get S.R. from the school bus stop. Defendant denied striking
     E.R. on Martin Luther King, Jr., Day and testified that he, the children, and their mother were
     all home together on that day.
¶8        As to the January 17 incident, the trial court found defendant guilty of armed violence
     and aggravated battery of a child, merging the latter conviction. Defendant was sentenced to
     seven years’ imprisonment for the armed violence conviction.
¶9        Defendant moved for a new trial, alleging ineffective assistance of counsel based on his
     counsel’s failure to impeach L.R. with a time card from her place of employment showing
     that she was not at work on Martin Luther King, Jr., Day. Defendant’s counsel admitted that
     he received the time card in discovery before trial and that his failure to use it to impeach
     L.R. was an oversight. The court denied the motion, finding that, even if L.R. was not at
     work on Martin Luther King, Jr., Day, all of the witnesses agreed that she was not present
     in the apartment. The court added that impeachment on the point would not have affected its
     ruling. Defendant timely appealed.



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¶ 10                                       II. ANALYSIS
¶ 11                   A. Use of a Belt as a Category III Dangerous Weapon
¶ 12        Defendant contends that the armed violence conviction must be reversed because a belt
       is not a category III dangerous weapon. Defendant concedes that, if the armed violence
       conviction is reversed, we should remand for him to be sentenced on the conviction of
       aggravated battery of a child that was merged into the armed violence conviction.
¶ 13        The armed violence statute provides: “A person commits armed violence when, while
       armed with a dangerous weapon, he commits any felony defined by Illinois Law ***.” 720
       ILCS 5/33A-2(a) (West 2010). Thus, the two essential elements of armed violence are being
       armed with a dangerous weapon and committing a felony. People v. Alejos, 97 Ill. 2d 502,
       506 (1983).
¶ 14        Under section 33A-1(c)(1) of the Code, a person is considered armed with a dangerous
       weapon when he or she carries on or about his or her person or is otherwise armed with a
       category I, category II, or category III weapon. 720 ILCS 5/33A-1(c)(1) (West 2010). In
       charging defendant with a Class 2 felony, the State classified the belt as a category III
       weapon. See 720 ILCS 5/33A-3(b) (West 2010). A category III weapon is defined as “a
       bludgeon, black-jack, slungshot, sand-bag, sand-club, metal knuckles, billy, or other
       dangerous weapon of like character.” 720 ILCS 5/33A-1(c)(3) (West 2010). “Because the
       interpretation of the armed violence statute presents a question of law, our review is de
       novo.” People v. Vue, 353 Ill. App. 3d 774, 777 (2004) (citing People v. Davis, 199 Ill. 2d
       130, 135 (2002)).
¶ 15        “Our purpose when construing a statute is to ascertain and give effect to the intent of the
       legislature.” Davis, 199 Ill. 2d at 135. “Courts should consider the statute in its entirety,
       keeping in mind the subject it addresses and the legislature’s apparent objective in enacting
       it.” Id. “The most reliable indicator of legislative intent is the language of the statute, which,
       if plain and unambiguous, must be read without exception, limitation, or other condition.”
       Id. “Moreover, criminal or penal statutes are to be strictly construed in favor of the accused,
       and nothing should be taken by intendment or implication beyond the obvious or literal
       meaning of the statute.” Id.
¶ 16        Under the doctrine of ejusdem generis, when a statutory clause specifically describes
       several classes of persons or things and then includes “other” persons or things, the word
       “other” is interpreted as meaning “other such like.” Id. at 138. “The fundamental principle
       of statutory construction known as the last antecedent doctrine provides that relative or
       qualifying words or phrases in a statute serve only to modify words or phrases which are
       immediately preceding. They do not modify those which are more remote.” Id.
¶ 17        In Davis, our supreme court, applying the above principles of statutory construction, held
       that a pellet/BB gun was not a dangerous weapon within the meaning of the 1992 armed
       violence statute. At that time, the statute had two categories of weapons, which defined a
       category I weapon as “a pistol, revolver, rifle, shotgun, spring gun, or any other firearm,
       sawed-off shotgun, a stun gun or taser ***, knife with a blade of at least 3 inches in length,
       dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or
       instrument of like character.” 720 ILCS 5/33A-1(b) (West 1992). A category II weapon was

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       defined as “a bludgeon, blackjack, slungshot, sand-bag, sand-club, metal knuckles, billy or
       other dangerous weapon of like character.” 720 ILCS 5/33A-1(c) (West 1992).
¶ 18        The Davis court noted that pellet/BB guns were not specifically included in the detailed
       list of firearms. Thus, the court concluded that it was reasonable to assume that the
       legislature did not view pellet/BB guns as “firearms” and, consequently, did not intend those
       devices to be included under the clause “any other firearm” in the armed violence provision.
       Davis, 199 Ill. 2d at 136-37. Applying the doctrine of ejusdem generis and the last-
       antecedent rule, the court also determined that pellet/BB guns did not fit within the clause
       “any other deadly or dangerous weapon or instrument of like nature.” The court observed that
       that clause came at the end of the list of blade-type weapons and was intended to refer only
       to weapons “like” the blade-type weapons that immediately preceded it, i.e., weapons or
       instruments that are sharp and able to cut or stab. The court believed that the clause was not
       intended to modify all of the named weapons and therefore was not intended to include
       pellet/BB guns or any other weapons that are not firearms but are of like nature. Id. at 139.
       The court further noted that, even if there were some ambiguity in the statute, it would be
       required to interpret it in a lenient manner. Id. at 140.
¶ 19        For the same reasons, the Davis court also held that a pellet/BB gun was not “a bludgeon,
       blackjack, slungshot, sand-bag, sand-club, metal knuckles, billy or other dangerous weapon
       of like character.” 720 ILCS 5/33A-1(c) (West 1992). The court stated:
            “Again, pellet and BB guns are not specifically named in this listing. Furthermore,
            although a metal pellet/BB pistol might be capable of being used as a bludgeon, it is not
            typically identified as such and, under the doctrine of ejusdem generis, cannot be
            interpreted to be ‘of like character’ to the bludgeon-type weapons included in the
            category II listing.” Davis, 199 Ill. 2d at 141.
¶ 20        In Vue, we applied Davis and held that a metal flashlight was not a category III dangerous
       weapon. In doing so, we specifically rejected the State’s argument that, while a flashlight’s
       principal purpose was not to bludgeon, it had a similar shape and could readily be used as
       a bludgeon-type weapon. Vue, 353 Ill. App. 3d at 780.
¶ 21        We began by noting that the word “bludgeon” was not defined by the statute.
       “Dictionaries generally describe a bludgeon as being a short stick used as a weapon usually
       having one thick, heavy, or loaded end.” Id. (citing Webster’s Third New International
       Dictionary 240 (1993), and People v. Fink, 94 Ill. App. 3d 816, 817 (1981)). We then
       observed that section 33A-1(c)(3) directed that the item must be a “ ‘dangerous weapon of
       like character.’ ” (Emphasis in original.) Id. (quoting 720 ILCS 5/33A-1(c)(3) (West 2000)).
       In particular, we stated:
            “It does not state that an item qualifies as a bludgeon if it shares physical characteristics
            with a bludgeon and is used in a bludgeon-like manner to harm the victim. Otherwise,
            the Davis court would have found the pellet/BB gun to be a bludgeon within the meaning
            of the statute. We believe that the legislature intended that the item used in category III
            under the armed violence statute be an inherently dangerous weapon. Although a metal
            flashlight shares physical characteristics with a bludgeon and may be capable of being
            used as a bludgeon, it is not commonly identified as a dangerous weapon or commonly


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           used as one and, under the doctrine of ejusdem generis, cannot be interpreted under the
           statute to be ‘of like character’ to the bludgeon-type weapons included in the category
           III listing. Moreover, contrary to the State’s argument, common sense dictates that a
           broken beer bottle or a shard of glass is similar to a blade-type weapon because it has no
           legitimate use other than as a dangerous weapon. On the other hand, a flashlight is not
           inherently a dangerous weapon and has a legitimate use. As such, it should not be
           considered a dangerous weapon for purposes of the armed violence statute.” (Emphasis
           in original.) Id. at 780-81.
¶ 22       Finally, we noted that there was no evidence that defendant had modified the flashlight
       to make it more “bludgeon-like” so that it could be used as a weapon. Id. at 781.
       Accordingly, we found that the flashlight was not a category III dangerous weapon and we
       vacated the defendant’s armed violence conviction.
¶ 23       Vue applies here. Just like the flashlight in Vue, a belt is not normally used as a dangerous
       weapon of a bludgeon-like character, nor is it inherently a dangerous weapon. Although it
       may be capable of being used as a bludgeon, it is not commonly identified as a weapon.
       Further, in this case, the State presented no evidence that the belt was altered to make it more
       bludgeon-like or for specific use as a weapon. See id. Instead, the evidence was that,
       although the belt had metal studs, it was simply an article of clothing. Thus, in this particular
       case, the belt was not a category III dangerous weapon.
¶ 24       The State argues that Vue was wrongly decided, asserting that it was improper to fail to
       consider how the object was used. But Vue applied well-settled principles of statutory
       construction and adopted the analysis from Davis, which held that, while an object might be
       used as a bludgeon, it must typically be identified as such to be interpreted as “of like
       character” to the bludgeon-type weapons included in the category III listing. The State also
       points to a pre-Davis case from the Third District, which held, without statutory
       interpretation, that the evidence was sufficient to support a conviction based on the use of
       a cane as a dangerous weapon. People v. Lee, 46 Ill. App. 3d 343, 348 (1977). The State also
       cites a First District case that noted that a baseball bat was a dangerous weapon when that
       determination was not at issue. People v. Dunlap, 315 Ill. App. 3d 1017, 1032 (2000). We
       do not find those cases persuasive as reasons to depart from the precedent set in Vue.
       Accordingly, we reverse the armed violence conviction and remand for sentencing on the
       merged conviction of aggravated battery of a child.

¶ 25                           B. Ineffective Assistance of Counsel
¶ 26       Defendant next alleges, however, that he is entitled to a new trial because his trial counsel
       was ineffective for failing to impeach L.R. with the time card showing that she was not at
       work on Martin Luther King, Jr., Day.
¶ 27       A claim of ineffective assistance of counsel requires a defendant to establish that (1) his
       attorney’s performance fell below an objective standard of reasonableness and (2) there is
       a reasonable probability that, but for counsel’s unprofessional errors, the result of the
       proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694
       (1984). “A reasonable probability means a probability sufficient to undermine confidence in

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       the outcome.” People v. Rosemond, 339 Ill. App. 3d 51, 66 (2003). “The issue of whether a
       defendant has received ineffective assistance of counsel is a mixed question of fact and law.”
       People v. Sharifpour, 402 Ill. App. 3d 100, 116 (2010). “We defer to the trial court’s factual
       findings but review de novo whether counsel’s omission supports an ineffective-assistance
       claim.” Id.
¶ 28       Here, even if L.R. was not at work that day, the point at issue was whether she was at
       home, and all the witnesses against defendant agreed that she was not. Whether L.R. was at
       work or was otherwise away was tangential. See People v. Guerrero, 2011 IL App (2d)
       090972, ¶¶ 40, 87 (affirming trial court’s finding that the fact that victim’s stepmother “was
       away someplace other than work” was tangential and did not render victim’s report of sexual
       abuse incredible). Accordingly, the trial court specifically found that impeachment with the
       time card would not have mattered. We cannot say that there is a reasonable probability that
       the outcome would have been different, and counsel thus was not ineffective.

¶ 29                                  III. CONCLUSION
¶ 30      Under the circumstances of this case, the belt was not a category III dangerous weapon.
       As a result, we reverse the armed violence conviction and remand for sentencing on the
       merged conviction of aggravated battery of a child. Defendant’s counsel was not ineffective.
       Thus, we otherwise affirm the judgment of the circuit court of Du Page County.

¶ 31      Affirmed in part and reversed in part; cause remanded.




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