                                          2019 IL App (3d) 170123

                                 Opinion filed July 26, 2019
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                     2019

     THE PEOPLE OF THE STATE OF                        )       Appeal from the Circuit Court
     ILLINOIS,                                         )       of the 12th Judicial Circuit,
                                                       )       Will County, Illinois,
            Plaintiff-Appellee,                        )
                                                       )       Appeal No. 3-17-0123
            v.                                         )       Circuit No. 14-CF-2504
                                                       )
     SANDRA P. MAGANA-ORTIZ,                           )       Honorable
                                                       )       Carla Alessio-Policandriotes,
            Defendant-Appellant.                       )       Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE McDADE delivered the judgment of the court, with opinion.
            Justices O’Brien and Wright concurred in the judgment and opinion.



                                                  OPINION

¶1          Defendant, Sandra P. Magana-Ortiz, appeals from her convictions for aggravated battery

     and child abduction. In this appeal she argues (1) the State failed to prove her guilty of child

     abduction beyond a reasonable doubt, (2) the State failed to prove her guilt of aggravated battery

     beyond a reasonable doubt, and (3) one of her aggravated battery convictions must be vacated

     because the convictions both derive from a single physical act. We affirm in part, reverse in part,

     and vacate in part.

¶2                                           I. BACKGROUND
¶3          The State charged defendant by indictment with two counts of aggravated battery (720

     ILCS 5/12-3.05(c), (d)(2) (West 2014)) and one count of child abduction (id. § 10-5(b)(1)).

     Count I of the indictment charged defendant with aggravated battery and stated that defendant

                    “without legal justification, knowingly made physical contact of an insulting or

                    provoking nature with Mariela Melendez, while Mariela Melendez was on or

                    about a public way, public property or public place of accommodation or

                    amusement, namely: the roadway at 320 Wheeler, Joliet, *** in that said

                    defendant dragged Mariela Melendez from a motor vehicle.” (Emphasis added.)

     Count II also charged defendant with aggravated battery and stated that defendant

                    “without legal justification, knowingly made physical contact of an insulting or

                    provoking nature with Mariela Melendez, in that said defendant dragged Mariela

                    Melendez from a motor vehicle, knowing Mariela Melendez to be pregnant.”

                    (Emphasis added.)

     Count III charged defendant with child abduction and stated that defendant

                    “intentionally violated the terms of a valid court order, dated September 17, 2014,

                    issued by the Circuit Court of Will County, granting sole custody of L.M., a child,

                    to Juan Melendez, by concealing L.M. in a motor vehicle.”

     The case proceeded to a bench trial. This recitation of facts is drawn from the trial testimony.

¶4          Mariela Melendez testified that she and Juan Melendez had been married since June 23,

     2013. In December 2014, Mariela, Juan, and their four children lived at 320 Wheeler Avenue in

     Joliet. Mariela explained that she was the biological mother of three of the children and

     defendant’s son, L.M., also resided in the home. L.M. had lived with Mariela and Juan since he




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     was four or five months old. He was two years old on the date of this incident. In 2014, Juan

     initiated legal proceedings to obtain sole custody of L.M.

¶5          Around 11 a.m. on December 23, 2014, defendant knocked on the door of 320 Wheeler

     Avenue. Mariela’s daughter, K.G., answered the door. Defendant asked to speak with Juan and

     explained that she was L.M.’s mother. At that time, Mariela approached the door and was

     surprised that defendant had found her house because Juan had not given defendant the address.

     Mariela shut the door and made a telephone call to Juan, who told her to let defendant into the

     house for five minutes. Mariela let defendant in, and defendant picked L.M. up. Mariela went to

     the kitchen to attend to her youngest child. While Mariela was away, defendant carried L.M. out

     the door and ran toward a silver Jeep. K.G. and Mariela, who was seven months pregnant, ran

     after defendant. Mariela saw defendant put L.M. into the front passenger seat of the Jeep. She

     leaned into the open driver’s side door and tried to remove the key from the ignition. While

     Mariela was still leaning into the car, defendant put the Jeep in drive and pulled away. Mariela

     held on to the Jeep as defendant drove for one or two minutes. At that point, Mariela let go of the

     Jeep. Mariela went to the emergency room, where she received treatment for an injury to her

     knee and bruising. Mariela’s baby was subsequently born healthy.

¶6          On cross-examination, Mariela testified that defendant had run over her leg but the

     medical personnel had not diagnosed her with any bone fractures. Mariela also denied telling a

     police officer at the hospital that defendant had not run her over.

¶7          Ten-year-old K.G. testified that she was Mariela’s daughter. On the morning of

     December 23, 2014, K.G. heard a knock on the door, opened it, and saw defendant. Defendant

     asked to speak with K.G.’s stepfather, Juan. Mariela asked defendant “[w]ho are you?” When

     defendant responded that she was L.M.’s mother, Mariela closed the door, but she eventually let


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       defendant into the house. Defendant hugged L.M., and when Mariela left the room, defendant

       ran out of the house with L.M. K.G. screamed that defendant was taking L.M. and ran after

       defendant. When K.G. tried to block defendant from getting into her Jeep, defendant pushed her

       out of the way and put L.M. in the front passenger seat. When Mariela caught up to K.G., she

       tried to take the keys out of the Jeep. A woman seated in the backseat grabbed the steering

       wheel, and the Jeep started moving. According to K.G., Mariela’s hand slipped off the side of the

       Jeep, and the Jeep drove over Mariela’s stomach and knee.

¶8            Officer Terry Higgins testified that he responded to a child abduction dispatch. He saw

       the silver Jeep described in the dispatch stop near 602 Summit Street. There, defendant got out of

       the driver’s seat of the Jeep and walked toward Higgins’s police vehicle. Defendant told Higgins

       that she had picked up her child in Joliet. Higgins saw another adult and several children in the

       Jeep. Higgins identified the other adult as Margarita Saavedra.

¶9            Officer Eric Moyes testified that he also responded to the child abduction dispatch.

       Moyes drove to 602 Summit Street, where he saw defendant speaking with Higgins. Moyes also

       saw three children and an adult sitting in a Jeep. Moyes identified the adult as Saavedra and

       noted that she was sitting in the backseat.

¶ 10          Officer Fernando Urquidi testified that he interviewed defendant at the Joliet Police

       Department. Defendant made an unrecorded oral statement and a written statement. Defendant

       told Urquidi that she knocked on the door of the Summit Street address where her ex-boyfriend,

       Juan, had previously lived. Saavedra answered the door, and defendant convinced Saavedra to

       tell her where Juan currently lived. Saavedra got into defendant’s Jeep and directed her to

       Wheeler Street. There, Mariela told defendant that she would have to call Juan. Juan told Mariela

       to let defendant visit with L.M. Defendant then told Mariela that she was taking L.M. Mariela


                                                      -4-
       told defendant that she could not take L.M. because Mariela and Juan had custody of L.M.

       Defendant responded “That is okay. I’m taking my son.” Urquidi clarified that defendant told

       him that Mariela had said that she “had full custody of the child.” Mariela told defendant that she

       was going to call the police. Defendant got nervous, grabbed L.M. and ran out of the house.

       Defendant put L.M. in the Jeep as she was being chased by Mariela. Mariela reached into the

       Jeep to remove the key from the ignition. Defendant put the Jeep in drive and accelerated.

       Defendant saw Mariela fall as she drove away.

¶ 11          In the written statement, defendant said that she went to the Summit Street address, where

       her former brother-in-law’s wife (Saavedra) lived, to look for L.M. Saavedra showed defendant

       where Juan lived. Juan indicated that defendant could take L.M., but Mariela said no. Mariela

       said that she was going to call the police, and defendant grabbed L.M. and left.

¶ 12          Urquidi also interviewed Saavedra. Saavedra said that Mariela had chased defendant to

       the Jeep, reached inside, and tried to remove the key from the ignition. Defendant became

       nervous and placed the Jeep in drive and depressed the accelerator.

¶ 13          The court took judicial notice of the custody case that granted sole custody of L.M. to

       Juan. The case file included no indication that defendant received service of the September 17,

       2014, custody order. Juan was the only party shown in the court order to have been present when

       it was entered.

¶ 14          The State also introduced, and the court admitted, into evidence five photographs of

       Mariela’s injuries. The first photograph showed an abrasion to Mariela’s left underarm and some

       skin discoloration around her abdomen. The second photograph showed abrasions and bruising

       to Mariela’s right foot. The third photograph showed an abrasion to one of Mariela’s toes on her




                                                      -5-
       left foot. The fourth photograph showed a large abrasion to Mariela’s left knee. The fifth

       photograph showed a large bruise to the inside of Mariela’s left leg.

¶ 15          The defense called 13-year-old M.M. to testify. M.M. said that he was Saavedra’s son.

       On December 23, 2014, defendant came to the Summit Street house looking for Juan. Saavedra

       told defendant that Juan had moved. Neither M.M. nor Saavedra knew Juan’s new address, but

       they were able to show defendant where Juan lived. Saavedra and M.M. rode with defendant to

       Juan’s house. There, M.M.’s aunt, Mariela, answered the door. A few minutes later, defendant

       ran out of the house with L.M. Mariela followed defendant and struggled with defendant for

       control of the key to the Jeep. Mariela made contact with defendant’s throat while trying to

       remove the key. M.M. saw Mariela lying on the ground after defendant drove away.

¶ 16          Defendant testified that she had six children and was pregnant with her seventh child.

       Five of defendant’s children lived with her, and L.M. lived with Juan. Juan had been L.M.’s

       primary caretaker since before September 2014. Defendant knew that Juan had filed a “paternity

       action,” but she did not attend the September 17, 2014, custody hearing. Defendant learned of

       the custody order after she was charged in the instant case and her criminal defense attorney

       showed it to her.

¶ 17          On December 23, 2014, defendant did not know that the court had awarded sole custody

       of L.M. to Juan, and she went to locate her son. Defendant had lost contact with Juan and did not

       know where L.M. was, but she knew that Juan had last resided at 602 Summit Street. When she

       went there, Saavedra and her two children entered defendant’s Jeep, and one of Saavedra’s sons

       gave defendant directions to Juan’s house. At Juan’s new house, defendant saw L.M. for the first

       time since September 2014. Defendant became emotional and ran out of the house with L.M.




                                                      -6-
       Defendant only intended to visit with L.M. and not take him. Mariela never mentioned that she

       and Juan had full custody or that she would call the police.

¶ 18          When defendant took L.M. to her Jeep, Mariela leaned inside the Jeep and tried to

       remove the key with one hand while she grabbed defendant’s hair with the other. Defendant

       feared for her safety, started the Jeep, and depressed the accelerator. As the Jeep accelerated,

       Mariela released defendant’s hair. Defendant did not intend to harm Mariela but rather to protect

       herself when she put the car in motion.

¶ 19          On cross-examination, defendant denied telling Urquidi that Mariela had full custody or

       that Mariela said defendant was there to take L.M. Defendant also denied pushing K.G.

¶ 20          The parties stipulated that Officer Thomas Schorie would testify that he interviewed

       Mariela at the hospital. Mariela told Schorie that defendant put the Jeep into drive and she fell as

       the Jeep moved forward. Mariela did not indicate that she was run over by the Jeep.

¶ 21          During closing arguments, the court asked the parties whether the State had to prove that

       defendant had actual knowledge of the custody order. The State argued that knowledge could be

       inferred from the circumstantial evidence, and defense counsel argued the State needed to prove

       that defendant had actual notice of the order to sustain the child abduction charge. The court

       found defendant guilty of all three counts. The court imposed sentences of 24 months’ probation

       on each charge, to run concurrently. The court also ordered defendant to have no contact with

       Juan, Mariela, or L.M. unless a family court found that defendant was fit for visitation.

       Defendant appeals.

¶ 22                                             II. ANALYSIS

¶ 23                                           A. Child Abduction




                                                       -7-
¶ 24           Defendant argues the State failed to prove her guilt of child abduction beyond a

       reasonable doubt because the evidence showed that she did not have knowledge of the custody

       order that she was charged with intentionally violating. The State argues that it proved

       defendant’s knowledge of the order by inference from circumstances of the abduction. We find

       that the evidence was insufficient to prove that defendant intentionally violated the terms of the

       custody order because she did not have actual notice of it.

¶ 25           In a challenge to the sufficiency of the evidence, “ ‘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.) People v. Collins, 106 Ill. 2d 237, 261 (1985) (quoting Jackson v. Virginia, 443 U.S.

       307, 319 (1979)). While the Collins standard affords the fact-finder’s decision great deference,

       that decision is not conclusive. People v. Cunningham, 212 Ill. 2d 274, 280 (2004).

¶ 26           Implicit within defendant’s challenge to the sufficiency of the evidence is the legal

       question of whether her knowledge of the order is necessary to be found guilty of child

       abduction. Therefore, we conduct de novo review of this subissue and then consider whether the

       evidence was sufficient for the fact-finder to determine that defendant had intentionally violated

       the custody order. See, e.g., People v. Ward, 215 Ill. 2d 317, 324 (2005) (conducting a statutory

       interpretation analysis where defendant’s challenge to the sufficiency of the evidence devolved

       into an issue of statutory interpretation).

¶ 27           The State charged defendant with a violation of section 10-5(b)(1) of the Criminal Code

       of 2012 (720 ILCS 5/10-5(b)(1) (West 2014)). This subsection provides:

                       “A person commits the offense of child abduction when he or she does any one of

                       the following:


                                                       -8-
                              (1) Intentionally violates any terms of a valid court order granting sole or

                      joint custody, care, or possession to another by concealing or detaining the child

                      or removing the child from the jurisdiction of the court.” Id.

¶ 28          We begin with what we find to be a self-evident principle: no person can intentionally

       violate one or more terms of a valid court order when he or she has no knowledge that such order

       has actually been entered by the court and what its terms are. We hold, as a matter of law, that

       the plain language of the statute requires that, for a person to be guilty of this felony offense of

       child abduction, he or she must know that a valid order has been entered by the court, what that

       order holds, and what the terms are for compliance with the order. See id.

¶ 29          The evidence in the present case failed to establish that defendant intentionally violated

       any terms of a valid court order because it clearly showed that defendant was not served with

       notice of the custody order, did not have knowledge that any such order had validly issued, and,

       if one had, did not know what any of its terms were. Specifically, the custody case file indicated

       that defendant was not served with notice of the September 17, 2014, order. Additionally, the

       order itself states that defendant was not present for the hearing that preceded its entry.

       Consistent with the order, defendant testified that while she knew that Juan had initiated a

       “paternity action,” she did not attend the September 17, 2014, hearing and was unaware of the

       order at the time of the incident. Further, Urquidi’s testimony that defendant said Mariela had

       told her that Mariela and Juan had “full custody” of L.M. is uncorroborated. Neither Mariela nor

       K.G. nor defendant testified that Mariela told defendant that she and Juan had full custody of

       L.M., and defendant also specifically denied making this statement to Urquidi. Even if Mariela

       had made this essentially undocumented statement, there was no reason for defendant to believe

       a representation from a woman she did not even know. More importantly, such a statement is


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       not, as we have previously shown, a legally cognizable substitute for actual knowledge of the

       terms of the written and signed custody order. As a lay person with an adverse interest, Mariela

       would not be trusted to convey the weight and details of the court’s order, and defendant would

       reasonably view Mariela’s self-serving statement, if such statement had in fact been made, with

       suspicion. Overall, Mariela’s alleged statement would have been wholly insufficient to provide

       defendant with the notice required to find defendant “[i]ntentionally violate[ ] any terms of a

       valid court order.” Id.

¶ 30          Given the lack of evidence that defendant actually had knowledge of the custody order,

       the State did not satisfy its burden of showing that defendant intentionally violated it.

       Accordingly, we find that the State failed to prove defendant guilty of child abduction beyond a

       reasonable doubt, and we reverse this conviction.

¶ 31                                          B. Aggravated Battery

¶ 32          Defendant argues the State failed to prove her guilt of aggravated battery beyond a

       reasonable doubt where the State did not prove that defendant made physical contact with

       Mariela. We find that the evidence was sufficient to prove defendant guilty of aggravated battery

       beyond a reasonable doubt.

¶ 33          As with the first issue, we review defendant’s challenge to the sufficiency of the evidence

       under the Collins standard. Supra ¶ 25. Defendant argues that because it did not prove that

       defendant made physical contact with Mariela, the State failed to prove her guilt of either of the

       two aggravated battery charges beyond a reasonable doubt. As charged in this case, both

       aggravated battery charges required the State to prove that defendant made “physical contact of

       an insulting or provoking nature with” Mariela. See 720 ILCS 5/12-3, 12-3.05 (West 2014).




                                                       - 10 -
¶ 34          The evidence in the instant case established that defendant’s Jeep made physical contact

       with Mariela when defendant put the Jeep in drive and drove away while Mariela clung to the

       side of the Jeep. The movement of defendant’s Jeep caused Mariela to fall. Mariela testified that

       the Jeep ran over her leg as defendant drove away. The State’s photographic exhibits showed

       bruises and abrasions to her leg that a fact-finder could have found consistent with Mariela’s

       testimony. These photographs were consistent with the fall and vehicle strike that Mariela and

       K.G. described. Moreover, Mariela’s location as she leaned into the area between the open

       driver’s side door and interior of the Jeep could have made defendant aware that any movement

       of the Jeep could cause Mariela to fall, and a fall could have resulted in Mariela being struck by

       the Jeep. Therefore, this evidence was sufficient to establish that defendant made physical

       contact with Mariela, via the vehicle strike.

¶ 35          In People v. Cameron, 189 Ill. App. 3d 998 (1989), the Fourth District was faced with a

       similar challenge to the sufficiency of the evidence of aggravated battery. A state trooper stopped

       Cameron’s truck and initiated a vehicle search. Id. at 1001. Before commencing the search, the

       trooper allowed Cameron to reenter the truck to shut off the engine. Id. Instead of turning the

       engine off, Cameron drove from the scene. In his flight, the door of the truck struck the trooper,

       causing him to fall and suffer injuries that required medical treatment. Id. From this evidence, a

       jury found defendant guilty of aggravated battery. Id. On appeal, Cameron argued the evidence

       was insufficient to prove his guilt of aggravated battery beyond a reasonable doubt. Id. at 1006.

       The Fourth District found that the evidence was sufficient and explained:

                              “The evidence the passenger side door was open and that [the trooper] was

                      standing next to the truck in the open doorway when defendant suddenly started

                      the truck and sped away is crucial to our decision that the evidence supported the


                                                       - 11 -
                      verdict finding defendant guilty of aggravated battery. When this evidence is

                      considered along with the other surrounding circumstances the jury could have

                      found to exist, we conclude a reasonable jury could find beyond a reasonable

                      doubt that defendant was (1) ‘consciously aware’ the passenger side door was

                      open [citation]; and (2) ‘consciously aware’ [the trooper] was ‘practically certain’

                      to be hit by some portion of the vehicle when defendant drove off [citation].” Id.

                      at 1008.

¶ 36          While Cameron does not directly address the physical contact element of aggravated

       battery, it implicitly finds this element to be sufficiently proven by the evidence that Cameron

       drove off while the trooper stood near the open door of the truck and Cameron’s act caused the

       trooper to suffer injuries. The same kind of facts played out in this case when defendant drove

       away while Mariela clung to the doorframe of the Jeep before she lost her grip, fell to the

       ground, and was run over by the Jeep. Therefore, like Cameron, the evidence was sufficient to

       permit a finding that defendant made physical contact with Mariela, via the vehicle strike, and

       the State proved defendant’s guilt of aggravated battery beyond a reasonable doubt.

¶ 37                                        C. One Act, One Crime

¶ 38          Defendant argues, alternatively, that one of her aggravated battery convictions must be

       vacated because the two offenses were based on the single physical act of making contact of a

       provoking nature with Mariela. The State concedes that defendant’s aggravated battery

       convictions are based on the same physical act. Upon review of the record, we accept the State’s

       concession that defendant’s two aggravated battery convictions violate the one-act, one-crime

       rule. Both of defendant’s aggravated battery convictions derive from the same physical act—

       making physical contact of an insulting or provoking nature by dragging Mariela from a motor


                                                      - 12 -
       vehicle. See People v. King, 66 Ill. 2d 551, 566 (1977) (multiple convictions cannot arise from a

       single physical act). Accordingly, we vacate defendant’s aggravated battery conviction entered

       under count I of the indictment.

¶ 39                                          III. CONCLUSION

¶ 40          The judgment of the circuit court of Will County is affirmed in part, reversed in part, and

       vacated in part.

¶ 41          Affirmed in part, reversed in part, and vacated in part.




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                                  No. 3-17-0123


Cite as:                 People v. Magana-Ortiz, 2019 IL App (3d) 170123


Decision Under Review:   Appeal from the Circuit Court of Will County, No. 14-CF-2504;
                         the Hon. Carla Alessio-Policandriotes, Judge, presiding.


Attorneys                James E. Chadd, Peter A. Carusona, and Kelly M. Taylor, of
for                      State Appellate Defender’s Office, of Ottawa, for appellant.
Appellant:


Attorneys                James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino,
for                      Thomas D. Arado, and Richard T. Leonard, of State’s Attorneys
Appellee:                Appellate Prosecutor’s Office, of counsel), for the People.




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