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                              Appellate Court                             Date: 2017.06.28
                                                                          11:01:10 -05'00'




                  People v. Williams, 2017 IL App (3d) 140841



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           KIMBERLY J. WILLIAMS, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-14-0841



Filed             April 3, 2017



Decision Under    Appeal from the Circuit Court of Will County, No. 13-CF-401; the
Review            Hon. Edward A. Burmila, Jr., Judge, presiding.



Judgment          Affirmed in part and vacated in part.


Counsel on        Michael J. Pelletier and Sean W. Collins-Stapleton, of State Appellate
Appeal            Defender’s Office, of Chicago, for appellant.

                  James W. Glasgow, State’s Attorney, of Joliet (Gary F. Gnidovec, of
                  State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                  People.



Panel             JUSTICE SCHMIDT delivered the judgment of the court, with
                  opinion.
                  Justices Carter and McDade concurred in the judgment.
                                               OPINION

¶1       Defendant, Kimberly J. Williams, appeals from her two convictions for aggravated battery.
     Defendant argues (1) the State failed to prove beyond a reasonable doubt that defendant’s use
     of force was not justified, (2) defendant was deprived of her due process right to a fair trial, and
     (3) one of defendant’s convictions must be vacated under the one-act, one-crime rule. We
     affirm in part and vacate in part.

¶2                                              FACTS
¶3       The State charged defendant by indictment with two counts of aggravated battery (720
     ILCS 5/12-3.05(a)(1), (f)(1) (West 2012)) and one count of battery (720 ILCS 5/12-3(a)(1)
     (West 2012)). At trial, the court granted a directed finding for defendant on the battery charge.
     Defendant does not raise an issue regarding this charge on appeal. Count I alleged:
             “[D]efendant, in committing a battery, *** without legal justification and by use of a
             deadly weapon, to wit: a bat, knowingly made physical contact of an insulting or
             provoking nature with Theresa Washington, in that said defendant struck Theresa
             Washington about the body with a bat.”
     Count II alleged:
             “[D]efendant, in committing a battery, *** knowingly and without legal justification
             caused great bodily harm to Theresa Washington, in that said defendant struck Theresa
             Washington about the body with a bat.”
     Prior to trial, defendant disclosed that she intended to raise the affirmative defense of
     self-defense. The case proceeded to a bench trial.
¶4       The undisputed facts establish that defendant was in a relationship with an individual in
     Vietnam whom she referred to as “master.” Defendant called herself “slave” in the
     relationship. “Master” asked defendant to take nude photographs while performing
     housework. “Master” recommended that defendant use the internet website collarme.com to
     find an individual to take the photographs. Defendant contacted Theresa Washington on this
     website and arranged a meeting at TGI Fridays on the afternoon of January 15, 2013. At the
     restaurant, defendant and Washington conversed and consumed alcoholic beverages. Around
     5:30 p.m., defendant and Washington left the restaurant to go to defendant’s house. Along the
     way, defendant purchased two bottles of wine.
¶5       At defendant’s house, Washington waited inside while defendant walked her dogs. When
     defendant returned, she and Washington got into an altercation. As a result of the altercation,
     Washington received treatment for a broken arm, contusions, and abrasions. Defendant also
     received scratches and contusions but declined treatment.
¶6       Defendant and Washington do not agree on the events that led to the altercation or the
     course of the altercation. Washington testified that when defendant returned from walking the
     dogs, she yelled at Washington for breaking the cork in a wine bottle. Defendant removed the
     broken cork, then she and Washington drank the wine and conversed for several hours in the
     living room. At one point, defendant called a male acquaintance and asked him to come to the
     house. The male did not come over, and defendant became agitated, removed her clothing, and
     sat naked on the floor. Washington asked if defendant wanted to pose for the nude
     photographs, but defendant could not find her camera. Defendant then began acting sexually

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     provocative. Washington told her to stop, and defendant asked Washington to “put her through
     some paces as far as [Washington] being a dominatrix and [defendant] being a slave.”
     Washington told defendant that she was no longer a dominatrix. However, defendant acted
     increasingly aggressive until Washington agreed to be her dominatrix. Defendant refused to
     comply with Washington’s command to crawl. Washington told defendant that she had to
     cooperate and “smacked [defendant] on her butt,” grabbed defendant’s hair, and told defendant
     to crawl. Defendant crawled to her bedroom. In the bedroom, defendant started laughing and
     refused to comply with Washington’s commands. Washington told defendant she could not
     continue and left the bedroom. Washington put on her boots and sweater and told defendant
     that she wanted to leave. Defendant became aggressive and got “in [Washington’s] face.”
     Washington was “petrified,” and she pushed defendant. Defendant stumbled, returned to her
     prior position, and continued to yell. Washington again pushed defendant, and a small table
     broke during defendant’s fall. Defendant used one of the broken table legs to hit Washington in
     her shoulders and back. Washington yelled for defendant to stop and told defendant to leave
     her alone. In the frenzy, Washington lost consciousness. Washington next recalled lying on the
     floor while defendant stood over her with a baseball bat. Defendant moved to swing the bat,
     and Washington yelled that defendant had broken her arm. Washington told defendant to let
     her go, and defendant screamed at Washington to get out of the house. Defendant continued to
     hit Washington, which prevented Washington from leaving. Eventually, Washington wrested
     the baseball bat from defendant, but she did not have enough strength to swing the bat, and
     defendant recovered it.
¶7        During the altercation, defendant tried to drag Washington out of the house by her hair.
     Washington resisted because she did not have her coat or purse. Defendant shouted for
     Washington to leave but impeded Washington’s exit by blocking the door. Eventually,
     defendant forced Washington out the front door without her purse. On the porch, Washington
     grabbed defendant’s baseball bat to stop defendant from hitting her. Defendant broke free and
     hit Washington seven or eight additional times. Washington sat on the porch stairs to avoid
     falling and asked defendant to stop hitting her because she was attempting to leave. Defendant
     stopped hitting Washington, and Washington used her right arm to move down the stairs.
     Washington then ran to a neighboring house for help.
¶8        On cross-examination, Washington said she took the medications Wellbutrin, Prozac,
     Xanax, and Celebrex. Washington’s doctors said that it was safe to drink a small amount while
     taking these medications. Washington acknowledged that she had exceeded this
     recommendation prior to the altercation.
¶9        Defendant testified that around 7:30 p.m., she changed out of her work clothes in an area
     where Washington could see her. After putting on fresh clothes, defendant and Washington
     continued to drink wine and converse. As the night progressed, Washington became more
     relaxed and told defendant that she was a dominatrix. Defendant was shocked, as Washington
     stated in her Internet posting that she was a “slave” or submissive person. Defendant and
     Washington continued to converse and made a few telephone calls. Thereafter, Washington
     made sexual advances toward defendant. Defendant felt threatened and uncomfortable, as their
     agreement did not involve sexual relations. Defendant asked Washington to stop or leave, but
     Washington continued her advances. Washington told defendant that she was too inebriated to
     leave. Defendant arranged for Washington to sleep on the couch and went to her bedroom to
     sleep.

                                                -3-
¶ 10       After midnight, Washington woke up defendant by pulling defendant by her hair down the
       hallway. Defendant feared that Washington intended to sexually assault her and she bit,
       scratched, and kicked Washington. Washington pushed defendant three times. On the third
       push, Washington grabbed defendant and they fell onto a table, breaking it. Washington
       continued to attack defendant, and defendant retrieved a baseball bat. Defendant hit
       Washington with the baseball bat several times. Washington tried unsuccessfully to take the
       baseball bat from defendant, but defendant opened the door and ordered Washington to leave.
       Defendant chased Washington out of the house with the baseball bat. According to defendant,
       “[Washington] fell down the stairs, she slipped down the stairs like on her bottom.”
       Washington then “stood up and turned like she was going to attack [defendant] again.”
       Defendant hit Washington one or two additional times, at which point she felt safe enough to
       go into the house.
¶ 11       When the police arrived, defendant told an officer that Washington had attacked her and
       she acted in self-defense. After defendant acknowledged she had hit Washington, the officer
       placed defendant under arrest.
¶ 12       On cross-examination, the State asked defendant:
                    “Q. Isn’t it true that when she was on the porch of your home, that she was
               screaming and crying for help?
                    A. She was screaming for and crying for help but it was after she slid down the
               stairs. I was also crying and screaming for help the whole time because I was being
               attacked as well.”
       After Washington fell down the stairs, defendant stated:
               “I was at the landing at the edge of the landing, and it all happened so fast. She turned
               around, stood up, and I thought she was coming after me again, so I stepped down, hit
               her, hit her, and went in my house and I locked the door.”
¶ 13       The court found that Washington and defendant’s stories were similar and the resolution of
       the case turned on its determination of who was the aggressor. The court found that
       defendant’s use of a baseball bat to strike Washington constituted deadly force and defendant’s
       belief that Washington intended to sexually assault her was unreasonable. The court further
       found:
               “[E]ven if [it] were to believe the defendant’s story that she was in a fight for her life
               and she was trying to defeat the commission of a forcible felony, the defendant testified
               to something that occurred out on the porch that the Court believes really is
               determinative of this case. She said after *** Washington had fallen down to the
               ground and slipped down the stairs, that she then began to cry for help.
                    So once *** Washington reached the bottom of those stairs and she started to call
               for help, she surely knew, if her version of the event was accurate, that the assault had
               ended, that any attempt on *** Washington’s part to come after her had ended. She was
               out of the residence. She had an opportunity, although she doesn’t have a legal duty in
               Illinois to retreat, she did have an opportunity to retreat.
                    She didn’t go back into her home. And she told us that what she did, she thought
               that *** Washington was going to get up again so she went and she hit her a few more
               times with the baseball bat.



                                                   -4-
                  Now, even as I said, if I believed her version of the event, she certainly did not have
              the right to use deadly force against *** Washington when she had fallen down the
              stairs, was at the bottom of the stairs calling for help.
                  So on the basis of the facts that are before the Court, the State did prove beyond a
              reasonable doubt that the defendant did not act in self-defense and she’s guilty of both
              counts of aggravated battery.”
¶ 14      Defendant filed a motion to reconsider. The motion referenced the court’s factual findings
       and testimony regarding the altercation on the porch. The court denied defendant’s motion.
       The court sentenced defendant to concurrent terms of 54 months’ imprisonment on the two
       aggravated battery charges. Defendant appeals.

¶ 15                                              ANALYSIS
¶ 16                                    I. Sufficiency of the Evidence
¶ 17        Defendant argues the evidence is insufficient to sustain her aggravated battery convictions
       because the State failed to prove that she did not act in self-defense. Upon review, we accept
       the court’s credibility findings and find the evidence, when viewed in the light most favorable
       to the State, disproved defendant’s defense of self-defense.
¶ 18        In a challenge to the sufficiency of the evidence, we view all of the evidence in the light
       most favorable to the prosecution to determine whether any rational trier of fact could have
       found the elements of the crime were proven beyond a reasonable doubt. People v. Collins, 106
       Ill. 2d 237, 261 (1985). Determinations regarding the credibility of witnesses, the weight to be
       given to testimony and evidence, and the reasonable inferences to be drawn from the evidence
       are the responsibility of the trier of fact. People v. Holman, 2014 IL App (3d) 120905, ¶ 56. A
       defendant’s conviction is subject to reversal only where the evidence is so improbable,
       unsatisfactory, or inconclusive that it leaves reasonable doubt as to defendant’s guilt. Id.
¶ 19        Defendant’s challenge to the sufficiency of the evidence is limited to the State’s proof that
       she did not act in self-defense. Defendant does not challenge the sufficiency of the evidence of
       the elements of aggravated battery.
¶ 20        When a defendant raises the defense of self-defense, to secure a conviction, the State must
       disprove defendant’s claim beyond a reasonable doubt. 720 ILCS 5/7-14 (West 2012);
       Holman, 2014 IL App (3d) 120905, ¶ 57. The elements of self-defense include that
       (1) unlawful force was threatened against a person, (2) the person threatened was not the
       aggressor, (3) the danger of harm was imminent, (4) the use of force was necessary, (5) the
       person threatened actually and subjectively believed a danger existed that required the use of
       force, and (6) the beliefs of the person threatened were objectively reasonable. People v. Lee,
       213 Ill. 2d 218, 225 (2004) (citing 720 ILCS 5/7-1 (West 1998), and People v. Jeffries, 164 Ill.
       2d 104, 127-28 (1995)). Negation of any of these elements defeats defendant’s claim of
       self-defense. Id.
¶ 21        In the instant case, defendant’s use of a baseball bat constituted deadly force, as it was
       intended or likely to cause great bodily harm. The use of deadly force is justified only if the
       user “reasonably believes that such force is necessary to prevent imminent death or great
       bodily harm to himself or another, or the commission of a forcible felony.” 720 ILCS 5/7-1(a)
       (West 2012).



                                                   -5-
¶ 22       Here, the State proved defendant’s use of deadly force was unreasonable. Defendant’s
       testimony that she feared Washington intended to sexually assault her was supported by no
       other facts in the record. Specifically, the parties had agreed that their meeting and
       arrangement to take the photographs involved no sexual activities. No testimony was proffered
       that Washington attempted to remove defendant’s clothes or commit an act of penetration. The
       evidence only established that defendant and Washington got into a physical altercation that
       started in the house and ended on the porch. Washington’s testimony further undermined the
       reasonableness of defendant’s belief that deadly force was required. Washington stated that
       after she broke her arm, defendant continued to strike her with the baseball bat. At that point, it
       was highly unreasonable for defendant to believe that such force was necessary to prevent
       imminent death or great bodily harm, as Washington was unarmed and injured. Ultimately, the
       court implicitly found Washington to be credible and that defendant’s belief that Washington
       intended to commit a forcible felony to be unreasonable. We defer to the court’s determination
       on these findings of fact and issues of credibility, and we do not find the court’s judgment to be
       improbable based on the evidence. Therefore, viewed in the light most favorable to the State,
       the evidence disproved beyond a reasonable doubt that defendant acted in self-defense.

¶ 23                                        II. Right to Fair Trial
¶ 24        Defendant argues that she was deprived of her due process right to a fair trial when the
       court based its guilty finding on the belief that the undisputed evidence showed defendant
       struck Washington while Washington was passively sitting on the porch. Defendant contends
       that she actually testified that Washington stood and turned as if to attack her. The State argues
       defendant forfeited review of this issue. We find defendant forfeited this issue, and plain-error
       review is not warranted because the court did not err.
¶ 25        To preserve an issue for appellate review, a defendant must object to the claimed error at
       trial and raise it in a posttrial motion. In re Samantha V., 234 Ill. 2d 359, 368 (2009). Here,
       defendant did not object to the court’s comment on the evidence. Defendant argues that we
       should relax this partial forfeiture because the issue concerns the conduct of the circuit court.
       See People v. Davis, 185 Ill. 2d 317, 343 (1998). Defendant essentially seeks application of the
       Sprinkle doctrine, which relaxes the forfeiture rule in situations where counsel’s objection
       would be rendered futile because it would fall on deaf ears. People v. Thompson, 238 Ill. 2d
       598, 612 (2010); see also People v. Sprinkle, 27 Ill. 2d 398 (1963). However, the Sprinkle
       doctrine applies only in “extraordinary circumstances,” and absent compelling circumstances,
       the forfeiture rule shall apply. Thompson, 238 Ill. 2d at 612. In this case, we do not find that
       extraordinary circumstances warrant relaxation of the forfeiture doctrine. Nothing in the record
       indicates that an objection to the court’s ruling would have been futile. Therefore, this issue
       may only be reviewed for plain error.
¶ 26        The plain-error doctrine provides a limited exception to the forfeiture rule, which allows a
       reviewing court to consider an unpreserved error. People v. Sebby, 2015 IL App (3d) 130214,
       ¶ 34. The plain-error doctrine allows a reviewing court to consider an unpreserved error where
       a clear or obvious error occurred, and either (1) “the evidence is so closely balanced that the
       error alone threatened to tip the scales of justice against the defendant” or (2) “[the] error is so
       serious that it affected the fairness of the defendant’s trial and challenged the integrity of the
       judicial process.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). The first step of plain-error
       review is to determine whether error occurred. People v. Hudson, 228 Ill. 2d 181, 191 (2008).

                                                    -6-
¶ 27       Defendant argues the court committed plain error under either prong when it failed to
       correctly recall and consider critical defense evidence in finding her guilty. Where a circuit
       court sits as trier of fact, the court’s failure to remember and consider testimony that is the crux
       of the defense deprives defendant of her right to receive a fair trial. People v. Mitchell, 152 Ill.
       2d 274, 324 (1992).
¶ 28       We find that the court’s recollection of the testimony regarding the events that occurred on
       the porch is not error. First, the court’s finding that Washington began to cry after sliding down
       the stairs is supported by the record. On cross-examination, defendant said Washington cried
       for help after she slid down the stairs. As defendant argues, she also testified that Washington
       assumed an attack position after sliding down the stairs, which prompted defendant to hit
       Washington. In its ruling, the court did not discuss this portion of defendant’s testimony.
       Considering the court’s ruling as a whole, we find this omission to be an implicit rejection of
       defendant’s contention that Washington continued to act aggressively after she slid down the
       stairs. Second, the court’s failure to expressly consider defendant’s statement that Washington
       assumed an attack position is not error, as it did not form the crux of the case. In its ruling, the
       court initially found defendant’s claim of self-defense was defeated by her unreasonable belief
       that deadly force was required. After making this finding, the court said “even if [it] were to
       believe defendant’s story,” defendant did not have the right to use deadly force. The court’s
       phrasing indicates that the subsequent findings provided an alternative basis for the guilty
       verdicts. As an alternate basis, it cannot be considered to form the crux of the case because,
       assuming we found the alternate basis to be error, the court’s primary argument remains sound.
       Therefore, the court did not deprive defendant of her due process right to a fair trial.

¶ 29                                      III. One-Act, One-Crime
¶ 30       Defendant argues that one of her aggravated battery convictions must be vacated under the
       one-act, one-crime rule because both convictions are premised on the same physical act of
       striking Washington with a baseball bat. We find that one of defendant’s aggravated battery
       convictions must be vacated, as the State did not express intent to treat defendant’s conduct as
       two separate offenses in the indictment or at trial.
¶ 31       The one-act, one-crime rule involves a two-step analysis: (1) determine whether
       defendant’s conduct involved multiple acts or a single act, and (2) if defendant’s conduct
       involved multiple acts, multiple convictions are improper only if one offense is a
       lesser-included offense of another. People v. Miller, 238 Ill. 2d 161, 165 (2010). In this case,
       we limit our review to the first part of the analysis, as neither of the parties raises a
       lesser-included offense argument. We review de novo the issue of whether defendant’s
       convictions violate the one-act, one-crime rule. People v. Artis, 232 Ill. 2d 156, 161 (2009).
¶ 32       Generally, a defendant may not be convicted of multiple offenses that are based on the
       same physical act. People v. Almond, 2015 IL 113817, ¶ 47. However, multiple convictions
       and concurrent sentences are permitted where a defendant has committed several interrelated
       acts. Id. An act is defined as “ ‘any overt or outward manifestation that will support a separate
       offense.’ ” People v. Crespo, 203 Ill. 2d 335, 341 (2001) (citing People v. King, 66 Ill. 2d 551,
       566 (1977)). To obtain multiple convictions for related acts, the State must provide defendant
       notice of its intent to treat the conduct as separate by apportioning the conduct among the
       charged offenses. Id. at 345. For example, in Crespo, the supreme court held the charging
       instruments and argument of the prosecution at trial revealed that the State intended to treat

                                                    -7-
       defendant’s conduct as a single act. Id. at 342, 344. Specifically, the charging instrument failed
       to differentiate between the separate stab wounds inflicted during defendant’s commission of
       the offenses of armed violence and aggravated battery. Id. at 344-45. At trial, the State
       generically argued that defendant stabbed the victim three times. Id. at 343-44. The State did
       not apportion each act of stabbing to the two charges. Id. The supreme court held the State did
       not express an intent to treat the conduct as separate acts, and therefore, the stab wounds could
       not support multiple convictions. Id. at 345.
¶ 33       The instant case is factually analogous to Crespo. Here, the indictment alleged in count I
       that defendant “knowingly made physical contact of an insulting or provoking nature with ***
       Washington, in that said defendant struck *** Washington about the body with a bat.”
       (Emphasis added.) Similarly, count II alleged defendant “knowingly and without legal
       justification caused great bodily harm to *** Washington, in that said defendant struck ***
       Washington about the body with a bat.” (Emphasis added.) The State did not attempt to
       apportion these offenses by providing distinct striking locations or resulting injuries.
       Additionally, the State did not argue at trial that each count was directed at a different blow or
       injury location. Therefore, defendant lacked the requisite notice that the State intended to treat
       her conduct as two separate acts, and multiple convictions cannot be sustained. Accordingly,
       we vacate the conviction and sentence for aggravated battery entered on count II of the
       indictment.

¶ 34                                       CONCLUSION
¶ 35      For the foregoing reasons, we affirm in part and vacate in part the judgment of the circuit
       court of Will County.

¶ 36      Affirmed in part and vacated in part.




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