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                               Appellate Court                             Date: 2019.05.28
                                                                           09:51:30 -05'00'



                   People v. Moore, 2019 IL App (3d) 160639



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



District & No.     Third District
                   Docket No. 3-16-0639



Filed              January 23, 2019
Rehearing denied   February 19, 2019



Decision Under     Appeal from the Circuit Court of Will County, No. 14-CF-44; the
Review             Hon. Amy M. Bertani-Tomczak, Judge, presiding.



Judgment           Affirmed and remanded with directions.


Counsel on         James E. Chadd, Peter A. Carusona, and Amber Hopkins-Reed, of
Appeal             State Appellate Defender’s Office, of Ottawa, for appellant.

                   James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, David
                   J. Robinson, and Mark A. Austill, of State’s Attorneys Appellate
                   Prosecutor’s Office, of counsel), for the People.



Panel              JUSTICE O’BRIEN delivered the judgment of the court, with
                   opinion.
                   Justices Lytton and McDade concurred in the judgment and opinion.
                                              OPINION

¶1       Defendant, Richard A. Moore, appeals his conviction for aggravated battery. Defendant
     argues that the evidence at his trial was insufficient to prove beyond a reasonable doubt that the
     victim suffered great bodily harm as a result of the battery. Defendant also argues that he is
     entitled to $5 in presentence incarceration credit for one partial day spent in presentence
     custody. We affirm and remand with directions.

¶2                                          I. BACKGROUND
¶3        Defendant was charged with aggravated battery (720 ILCS 5/12-3.05(a)(1) (West 2012)) in
     that he caused great bodily harm to Zachary Lofdahl by striking Lofdahl about the body with a
     metal object.
¶4        A bench trial was held. Lofdahl testified that he worked for Navistar National Harvester
     (Navistar) at the time of the incident. Defendant also worked at Navistar. On the day of the
     incident, Lofdahl told defendant that he was loading parts into a box incorrectly. Lofdahl told
     defendant “don’t be a dumb a*** and do it the right way.” Defendant told Lofdahl not to tell
     him how to do his job. Defendant walked away. Lofdahl did not remember what happened
     after that. Lofdahl said “the next thing you know I was in the hospital with a bunch of stitches
     inside my head.” The prosecutor asked Lofdahl if he lost consciousness. Lofdahl replied: “Yes,
     to my knowledge. Like, I don’t remember what happened after that.”
¶5        Lofdahl testified that he suffered a 3½-inch gash on the side of his head and a swollen right
     eye on the day of the incident. Lofdahl went to “quick care” that day, where he received
     stitches and medication. The next day, Lofdahl went to a hospital. He stayed in the hospital for
     four days and received a computerized tomography scan. Lofdahl testified that he was off work
     for three months after the incident.
¶6        Prior to going to the hospital the day after the incident, Lofdahl went to Navistar to give a
     written statement. Lofdahl testified that his girlfriend drove him there. Lofdahl said that she
     drove him everywhere for a month or two after the incident. Lofdahl acknowledged that the
     written statement said that he did not remember anything that happened at work on the day of
     the incident after he clocked in. Lofdahl explained that he was “still not in the right state of
     mind” when he wrote the statement because he “just got clocked in the head.” When asked if
     he could independently recall giving the written statement, Lofdahl replied: “It was here and
     there. *** I was still out of the state of mind when I went to the home after I signed that. Like I
     had people visit me, and I didn’t really remember them visiting me.”
¶7        Edward Stromik testified that he was employed at Navistar as a distribution supervisor. On
     the date of the incident, defendant and Lofdahl were employees that he was supervising. At
     some point, dock employees called for Stromik’s attention. Stromik observed Lofdahl walking
     away from the dock holding his head, which was bleeding. Stromik followed Lofdahl to the
     restroom. Stromik asked Lofdahl what was wrong, and Lofdahl said he was unsure. Stromik
     asked Lofdahl questions, but Lofdahl “was not really responding in any manner that [Stromik
     could] comprehend.” Stromik called for a first aid responder to attend to Lofdahl. Stromik
     returned to the area where the incident occurred and observed blood on the floor and on a box.
¶8        Adam Turner testified that he was employed at Navistar on the date of the incident. Turner
     heard Lofdahl and defendant arguing over the positioning of the content that went into the


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       boxes. Turner observed defendant pick up a bearing and throw it at Lofdahl. The bearing
       weighed approximately 10 pounds, and it struck Lofdahl near his temple. Lofdahl fell down
       and then “popped back up in a daze, a delirious state.” Turner testified that Lofdahl was not
       stable on his feet when he stood up. Lofdahl was “in pretty bad shape,” and there was blood on
       the floor.
¶9          Vernon Foster testified that he was employed at Navistar on the date of the incident. Foster
       observed defendant throwing parts into a box. Lofdahl and Turner told defendant to stop
       tossing the parts. Foster observed Lofdahl fall down and saw a brushing fall to the floor.1
       Foster explained that a brushing was “a little small heavy piece of metal” weighing
       approximately five pounds. Lofdahl had been hit with the brushing. Foster observed Lofdahl
       trying to stand up after he fell down. Foster tried to get Lofdahl to stay on the ground until the
       first responders came because Foster believed that Lofdahl “had to have been dizzy.” Lofdahl
       stood up anyway. Foster followed Lofdahl to the back of the warehouse. Foster tried to get
       Lofdahl to sit down. Lofdahl was “bleeding everywhere.”
¶ 10        The State rested.
¶ 11        Defendant testified that he did not throw anything at Lofdahl on the date of the incident.
       Instead, Lofdahl hit defendant in the leg several times with a box containing a metal part. This
       caused defendant to sustain a bruise on his leg. Defendant started running, and Lofdahl chased
       him. The door to the management office opened, and Lofdahl stopped chasing defendant.
       Lofdahl started running in another direction. Lofdahl was “crouching kind of low.” Lofdahl
       then turned his head and hit a pack mule. Lofdahl started bleeding. Lofdahl began walking
       toward his forklift, but he was swaying and stumbling. Foster made him sit down. Defendant
       heard Lofdahl say that he and Foster should say defendant threw something at him. Foster
       agreed. Turner told Lofdahl that he could get in trouble for starting a fight with defendant.
       Lofdahl said that he would not get in trouble if they said that defendant threw something at
       Lofdahl. Defendant testified that Lofdahl and Foster had made fun of him and called him
       names in the past. Turner laughed when Foster and Lofdahl made fun of defendant.
¶ 12        The court found defendant guilty of aggravated battery. The court sentenced defendant to
       24 months’ probation and ordered that he pay $1457 in monetary assessments.

¶ 13                                           II. ANALYSIS
¶ 14                                  A. Sufficiency of the Evidence
¶ 15       Defendant argues that his conviction should be reduced from aggravated battery to simple
       battery because the State failed to prove beyond a reasonable doubt that Lofdahl suffered great
       bodily harm. We find that, when viewed in the light most favorable to the State, the evidence
       was sufficient to show that Lofdahl suffered great bodily harm.
¶ 16       “When presented with a challenge to the sufficiency of the evidence, it is not the function
       of this court to retry the defendant.” People v. Collins, 106 Ill. 2d 237, 261 (1985). Rather,
       “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the
       prosecution, any rational trier of fact could have found the essential elements of the crime

           1
            Defendant later testified that the part in question was called a “bushing” or a “bearing.” Although
       various witnesses referred to the part as a “brushing,” a “bushing,” or a “bearing,” it was not clear that
       there was any disagreement as to what part they were referring to.

                                                       -3-
       beyond a reasonable doubt.’ ” (Emphasis in original.) Id. (quoting Jackson v. Virginia, 443
       U.S. 307, 319 (1979)). “A criminal conviction will not be set aside unless the evidence is so
       improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.” Id.
¶ 17        To prove defendant guilty of aggravated battery, the State was required to prove beyond a
       reasonable doubt that, in committing a battery, defendant knowingly caused great bodily harm
       to Lofdahl. 720 ILCS 5/12-3.05(a)(1) (West 2012). On appeal, defendant does not dispute that
       a battery took place. Rather, defendant argues that Lofdahl’s injuries did not rise to the level of
       great bodily harm as opposed to mere bodily harm. “Whether the victim’s injuries rise to the
       level of great bodily harm is a question for the trier of fact.” People v. Cisneros, 2013 IL App
       (3d) 110851, ¶ 12.
¶ 18        We find that the evidence in this case, when viewed in the light most favorable to the State,
       was sufficient for a rational trier of fact to find that the State had proven beyond a reasonable
       doubt that Lofdahl suffered great bodily harm as a result of the battery. The testimony at trial
       indicated that the item that struck Lofdahl’s head weighed approximately 5 to 10 pounds.
       Lofdahl testified that he incurred a 3½-inch gash on the side of his head and a swollen right
       eye. Stromik, Foster, and Turner testified that Lofdahl was bleeding significantly as a result of
       his injury. Lofdahl testified that he received stitches for his laceration and an unspecified
       medication.
¶ 19        While there was no evidence of Lofdahl receiving a specific head injury, the evidence was
       sufficient for the court to infer that Lofdahl suffered memory loss as a result of the incident.
       Lofdahl testified that he could not remember anything that happened on the day of the incident
       from the time defendant started walking away from him until the time he received stitches. The
       day after the incident, Lofdahl could not remember anything that happened on the day of the
       incident after he clocked in at work. Lofdahl explained that he “was still not in the right state of
       mind” at the time he gave the statement because he had “just got clocked in the head.” Lofdahl
       also testified that people visited him after the incident, and he did not remember their visits.
       Stromik testified that he asked Lofdahl what happened immediately after the incident, but
       Lofdahl was unsure. Stromik said that Lofdahl did not respond to his questions “in any manner
       that [Stromik could] comprehend.” Turner testified that Lofdahl was in a “daze” or a “delirious
       state” after the incident.
¶ 20        We reject defendant’s argument that “the most that can be said from the evidence presented
       is that Lofdahl had a swollen eye and received a laceration during an incident” and that these
       injuries constituted mere bodily harm rather than great bodily harm. Defendant relies on In re
       J.A., 336 Ill. App. 3d 814, 817 (2003), for the proposition that “ ‘great bodily harm’ is more
       serious or grave than lacerations, bruises, or abrasions that characterize ‘bodily harm.’ ” See
       also People v. Figures, 216 Ill. App. 3d 398, 401 (1991); In re T.G., 285 Ill. App. 3d 838, 846
       (1996).
¶ 21        First, we disagree with defendant’s assertion that the evidence showed only that Lofdahl
       suffered a laceration and a swollen eye. We previously found that the evidence was sufficient
       to support an inference that Lofdahl also suffered memory loss as a result of his injury.
¶ 22        Moreover, we previously rejected a similar argument that injuries limited to lacerations
       could not qualify as great bodily harm in Cisneros, 2013 IL App (3d) 110851, ¶ 14. In
       Cisneros, we concluded that Figures, T.G., and J.A. were largely based on a misreading of the
       Illinois Supreme Court’s decision in People v. Mays, 91 Ill. 2d 251 (1982). Cisneros, 2013 IL
       App (3d) 110851, ¶¶ 15, 19. We found that there was sufficient evidence to show that the

                                                    -4-
       Cisneros victim had suffered great bodily harm where the victim’s injuries were limited to
       lacerations. Id. ¶ 13.
¶ 23       We also reject defendant’s reliance on factual similarities in T.G. and J.A. Defendant
       contends that the courts in T.G. and J.A. found similar evidence to be insufficient to establish
       great bodily harm. In T.G. and J.A., the only evidence of the victims’ injuries is that they
       received stab wounds that felt like a poke and a pinch, respectively. T.G., 285 Ill. App. 3d at
       846; J.A., 336 Ill. App. 3d at 818. The victim in J.A. also testified that an unnamed individual at
       the hospital advised him to have his wound stitched, but he refused. J.A., 336 Ill. App. 3d at
       818.
¶ 24       We find that T.G. and J.A. are factually distinguishable from the instant case. In this case,
       Lofdahl testified that he sustained a 3½-inch gash that required stitches as a result of the
       battery. Lofdahl also testified that he spent several nights in the hospital after the incident.
       Lofdahl and other witnesses testified that Lofdahl’s wound was bleeding significantly after the
       incident. There was also evidence that Lofdahl suffered memory loss as a result of his injury.
       Thus, this case is not comparable to T.G. or J.A., where the evidence showed only that the
       victims received stab wounds that felt like a poke or a pinch. T.G., 285 Ill. App. 3d at 846; J.A.,
       336 Ill. App. 3d at 818.
¶ 25       Defendant also urges us to follow the decision of the court in In re Vuk R., 2013 IL App
       (1st) 132506. In Vuk R., the victim testified that the respondent struck him several times with
       his fist, which broke his nose and caused him to lose consciousness. Id. ¶ 4. The record showed
       that the victim suffered a broken nose and cheek bone and an eye socket injury. Id. ¶ 9.
       Photographs of the victim’s injuries showed swelling and discoloration. Id. The appellate court
       reasoned that this evidence was insufficient to establish great bodily harm because the victim
       and his father “testified in summary fashion about his injuries.” Id. The court further reasoned
       that “[t]here was no evidence presented regarding any pain suffered by the victim (other than
       he was given pain medication), the details of the victim’s treatment for his injuries or how long
       after the incident he suffered the effects of those injuries.” Id. However, we are not required to
       follow the decision of the Vuk R. court, and we decline to do so. See People v. Canulli, 341 Ill.
       App. 3d 361, 370 (2003) (“Courts are not bound to follow decisions of equal or inferior
       courts.”).
¶ 26       Finally, we note that several courts have found that seemingly less severe injuries
       constituted great bodily harm. See People v. Matthews, 126 Ill. App. 3d 710, 714 (1984)
       (holding that there was sufficient evidence that the victim suffered great bodily harm where the
       victim testified that she only suffered a bruise on her head); People v. Olmos, 67 Ill. App. 3d
       281, 289-90 (1978) (holding that there was sufficient evidence that the victim suffered great
       bodily harm where the victim was bleeding from his eye and sustained three or four welts on
       his back that were 12 to 18 inches long).

¶ 27                               B. Presentence Incarceration Credit
¶ 28       Defendant argues that he is entitled to a total of $5 in presentence incarceration credit for
       one partial day spent in presentence custody. Section 110-14(a) of the Code of Criminal
       Procedure of 1963 (Code) (725 ILCS 5/110-14(a) (West 2012)) provides: “Any person
       incarcerated on a bailable offense who does not supply bail and against whom a fine is levied
       on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated upon
       application of the defendant.”

                                                    -5-
¶ 29       “A defendant held in custody for any part of the day should be given credit against his
       sentence for that day.” People v. Smith, 258 Ill. App. 3d 261, 267 (1994). Courts have awarded
       presentence incarceration credit in situations where defendants posted bail shortly after being
       arrested. People v. Stahr, 255 Ill. App. 3d 624, 627 (1994) (holding that the defendant was
       entitled to presentence incarceration credit where he was arrested and released on bail in the
       same day); Smith, 258 Ill. App. 3d at 268 (holding that the defendant was entitled to per diem
       monetary credit for the day he was arrested even though he posted bail the same day); People v.
       Kuhns, 372 Ill. App. 3d 829, 838 (2007) (holding that the defendant was entitled to presentence
       incarceration credit where he was held in custody for less than three hours).
¶ 30       In the instant case, the record indicates that a warrant for defendant’s arrest was served on
       January 24, 2014. A presentence investigation report indicates that defendant also posted bond
       on January 24, 2014. Thus, the record shows that defendant was in custody for one partial day.
       Accordingly, defendant is entitled to a credit of $5 to be applied against his applicable fines.
¶ 31       We reject the State’s argument that the record does not show that defendant was ever
       actually incarcerated as opposed to merely being in custody. The State cites People v. Riley,
       2013 IL App (1st) 112472, ¶ 11, for the proposition that section 110-14(a) of the Code “only
       allows a per diem monetary credit to be awarded for each day that a defendant is physically
       incarcerated and not merely in custody.” However, we believe that it can be inferred from the
       fact that defendant was arrested and supplied bail that he was incarcerated at least for a short
       time. We also note that Riley is factually distinguishable from the instant case because the
       Riley defendant was seeking per diem monetary credit for time spent on home confinement,
       whereas defendant in the instant case was seeking credit for time spent in police custody
       following his arrest. Id. ¶ 6. Finally, we note that for purposes of section 110-14(a) of the Code,
       courts have considered defendants to be incarcerated once they have been arrested by the
       police. Kuhns, 372 Ill. App. 3d at 838; see also Stahr, 255 Ill. App. 3d at 627; Smith, 258 Ill.
       App. 3d at 268.

¶ 32                                         III. CONCLUSION
¶ 33       The judgment of the circuit court of Will County is affirmed. The cause is remanded to the
       circuit court with directions that the court apply a presentence incarceration credit of $5 against
       defendant’s applicable fines.

¶ 34      Affirmed and remanded with directions.




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