                                                           NO. 5-06-0514
                        N O T IC E

 Decision filed 04/07/08. The text of
                                                              IN THE
 this dec ision m ay b e changed or

 corrected prior to the              filing of a
                                                   APPELLATE COURT OF ILLINOIS
 P e t i ti o n   for     Re hea ring   or   the

 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                       ) Circuit Court of
      Plaintiff-Appellee,              ) Fayette County.
                                       )
v.                                     ) No. 06-CF-20
                                       )
ROBERT C. TAYLOR,                      ) Honorable
                                       ) S. Gene Schwarm,
      Defendant-Appellant.             ) Judge, presiding.
________________________________________________________________________

                  JUSTICE GOLDENHERSH delivered the opinion of the court:

                  After a jury trial in the circuit court of Fayette County, defendant, Robert C. Taylor,

was found guilty of domestic battery in violation of section 12-3.2(a)(1) of the Criminal Code

of 1961 (Criminal Code) (720 ILCS 5/12-3.2(a)(1) (West 2004)). He was sentenced to 60

days in the county jail, with credit for 5 days served, fined a total of $500 plus court costs,

ordered to obtain an alcohol substance-abuse evaluation and comply with any recommended

terms, and ordered to pay a $10-per-month probation fee. On appeal, defendant raises the

following issues: (1) whether the State proved defendant guilty of domestic battery beyond

a reasonable doubt and (2) whether defendant is entitled to a credit of $5 per day toward the

fine he was assessed for time he spent in custody prior to sentencing. We affirm in part and

remand.

                                                          BACKGROUND

                  On December 16, 2005, Officer Todd Emerick of the Vandalia police department

responded to a 9-1-1 call at defendant's house. Defendant told Officer Emerick that Lisha

Clary broke into his house and attacked him. After interviewing the parties and witnesses,


                                                                1
Emerick arrested defendant. Defendant was later charged by information with domestic

battery "in that said defendant, without legal justification, knowingly caused bodily harm to

Lisha Clary, a family or household member of the defendant, in that said defendant struck

Lisha Clary in the mouth with said defendant's hands" in violation of section 12-3.2(a)(1) of

the Criminal Code. Defendant was also charged with battery for striking Lisha Clary's

daughter, K.F., in the mouth.

        On August 17, 2006, both counts proceeded to a jury trial. K.F., age 15, testified that

she and defendant's daughter, A.M., are friends.        K.F. spent the night with A.M. at

defendant's house on the night of December 16, 2005. They were asleep in A.M.'s bedroom

when they were awakened by a loud noise in defendant's bedroom. They went to see what

caused the noise and found K.F.'s mother standing inside the room and defendant and Betty

Kophazy sitting on the bed.

        After seeing another woman on defendant's bed, K.F. ran out of the house, using the

back door. The door was intact when she ran out. She reentered and found defendant

throwing tables at her mother and saw defendant hit her mother in the face. K.F. then got

between defendant and her mother and hit defendant. Defendant hit K.F. back, cutting her

face.

        K.F. testified that at the time of the incident, she and her mother had been staying at

defendant's house for a couple of weeks and that her mom and defendant had been "going

out." During the weeks they were living at defendant's house, K.F. witnessed defendant and

her mother hugging and kissing. Both K.F. and A.M. encouraged the relationship between

their parents. K.F. testified that her mother slept in defendant's bedroom during the time they

stayed at defendant's house. K.F. kept her clothes in a bag in A.M.'s room. She was "pretty

sure" that her mom kept her clothes and a bag of pills in defendant's bedroom. After

defendant hit her, K.F. again fled the house via the back door. She broke the window out of


                                               2
the door attempting to get out of the house and cut her arm on some glass.

       Lisha Clary, age 42, testified that she had been staying at defendant's house for

approximately three weeks prior to the night in question. She said that she and defendant

"were dating" and that she slept in his bedroom. She stated that some of her clothes were in

a bag and that some of her clothes were in a closet alongside defendant's bed. She testified

that she kept her medication at defendant's house. She had been at defendant's house earlier

in the day, left, and returned around midnight. She initially testified that she did not have a

key to defendant's house. The door was unlocked. She later recalled that defendant left a key

for her to use. She entered the house, walked through the kitchen and living room, and went

to defendant's bedroom. She found defendant lying on his bed with his head in the lap of

another woman, Betty Kophazy. Betty was sitting on the bed and was wearing clothes, but

defendant was naked.

       Clary asked defendant if she could get her bag of clothes and medication, but

defendant refused. Defendant got off the bed, came at her, and started striking her with his

fists. She ran out of the bedroom and into the living room. Defendant picked up the coffee

table and hit her in the back with it, causing her to fall to the floor. She got up and went into

the kitchen, where defendant continued to hit her. K.F. intervened and hit defendant.

Defendant then hit K.F. twice. K.F. got scared and tried to run out the back door. K.F. could

not get the door open and her arm went through the storm window.

       Defendant called the police from a telephone in his room. The police arrived on the

scene. The police first talked to Clary and K.F. The police then went into the bedroom and

talked to defendant. Defendant was handcuffed and taken out the back door. Clary denied

hitting defendant in the bedroom.

       On cross-examination, Clary admitted that she had been convicted of aggravated

battery on July 26, 2006, on an unrelated matter in Fayette County and had served a sentence


                                               3
of 30 days in the county jail. The State stipulated that Clary also had been convicted of theft

in a previous matter. Clary gave a written statement to police on the night in question. At

that time she listed her address as 621 North Fifth in Vandalia, which is not defendant's

address.

       On rebuttal, Clary said that she and defendant had engaged in sex. She recalled that

they had engaged in sex a "couple days before" the night in question.

       Todd Emerick, a police officer who responded to the domestic disturbance call at

defendant's house, testified that upon his arrival, he and his partner knocked on the door, but

no one answered. They walked around the house and found broken glass outside the kitchen

door. They heard yelling inside the house and could not get anyone's attention. Ultimately,

they identified themselves as police officers and walked inside. They observed K.F. in the

kitchen. Emerick described her as "very upset, crying," and "hysterical." After interviewing

the parties and the witnesses, they arrested defendant and transported him to jail.

       While defendant reported that Lisha Clary broke into his house, Emerick noted that

he and his partner found broken glass outside the kitchen door, which indicated that

something or someone broke the glass from the inside, pushing out. Emerick further noted

that there was broken glass in the living room and that a coffee table appeared to have been

thrown. Emerick originally charged defendant with battery and listed the victim as K.F.

       A.M ., age 15, testified for the defense. Defendant is her father and she resides with

him at his rental house, where the incident occurred. She said that at the time of the offense,

no one else lived with them. She has been friends with K.F. since fifth grade. K .F.

frequently spent the night at her house, and sometimes Lisha Clary would also spend the

night on the weekends, with Clary sleeping on the couch. A.M. admitted that Clary left some

clothes at the house, but she said that they always stayed in a green cloth bag in the living

room. She said that prior to the day in question, she never saw defendant kiss or hug Lisha


                                              4
Clary. According to A.M ., defendant and Clary were just friends.

       On December 16, 2005, A.M. and K.F. heard a thud, so they went into defendant's

bedroom to investigate. They saw defendant and Betty sitting on the bed. Clary was

standing across the room and was "yelling." A.M. went back to her bedroom and K.F. went

outside. A.M. saw Clary pick up a lamp but did not see what she did with it because A.M.

went back into her room. A.M. did hear glass breaking. At some point, Betty came into her

room and told her she could calm down because the police had arrived. The police tried to

interview A.M., but she told them she did not see much because she was in her room. She

did not tell the police that she saw Clary pick up a lamp.

       Betty Kophazy testified that she now lives with defendant and A.M. at the house in

which the incident occurred and that she is defendant's girlfriend. She moved in at the end

of February or early March 2006. On the night in question, she was fully clothed and sitting

on defendant's bed when she heard the sound of glass crashing. She told defendant,

"Somebody's just broke your window out." After a little more ruckus, she heard someone

banging on the bedroom door, which was shut. Clary then came into the room and asked

defendant where her pills were. Defendant told Clary he did not know. Clary then started

hitting defendant and cussing at him. According to Kophazy, defendant covered himself and

did not strike back. Clary then went after Kophazy. Kophazy tried to jump over the top of

defendant, at which time she kicked Clary in the chest, and Clary fell to the floor. Clary went

into the living room and started breaking things, while defendant called the police from a

phone in his bedroom.

       Kophazy went into the living room and found broken glass all over. Clary was in the

kitchen and K.F. was on the back porch. K.F. was pale and said she had cut her arm on the

door. Kophazy told K.F. to sit before she fainted. Clary told Kophazy to get away from her

daughter, so Kophazy went back to defendant's bedroom until the police arrived. Kophazy


                                              5
testified that defendant never hit Clary. Defendant just wanted Clary out of his house, but

the police ended up arresting defendant. Kophazy had seen Clary earlier in the evening at

a bar and believed that Clary was drunk when she arrived at defendant's house.

       On the night in question, Kophazy told the police she did not see anything. Kophazy

admitted that when defendant was arrested, she did not tell the police that they were making

a mistake. She said that her main concern was A.M. and that she had tried to calm her and

tell her that it would be okay because her father did not do anything wrong. Kophazy has a

felony conviction for possession of cannabis.

       During deliberations, the jurors sent a question to the judge that asked whether they

should convict defendant of battery if they believed that defendant had hit K.F. accidentally

when she was intervening between Clary and defendant. The judge responded: "Your

question is contained in the instructions. Please refer to your instructions." The jury found

defendant guilty of domestic battery regarding Clary but not guilty of battery regarding K.F.

Defendant was sentenced to 60 days in the county jail and fined $500. Defendant now

appeals.

                                        ANALYSIS

       The first issue we are asked to address is whether defendant was proven guilty of

domestic battery. Defendant argues he was not proven guilty beyond a reasonable doubt

because the State failed to prove that Lisha Clary was a household member or involved in

a dating relationship with defendant. He asks that his conviction be reduced to simple

battery. The State replies that it presented sufficient evidence to prove that defendant and

Clary were in a dating relationship and shared a common dwelling and that, thus, he was

proven guilty beyond a reasonable doubt of domestic battery. We agree that the State

presented sufficient evidence to show that Clary and defendant were in a dating relationship.

       Section 12-3.2 of the Criminal Code provides in pertinent part as follows:


                                             6
              "(a) A person commits domestic battery if he intentionally or knowingly

       without legal justification by any means:

                       (1) Causes bodily harm to any family or household member as defined

              in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of

              1963, as amended[.]" (Emphasis added.) 720 ILCS 5/12-3.2(a)(1) (West

              2004).

Subsection 3 of section 112A-3 of the Code of Criminal Procedure of 1963, which is

referenced in section 12-3.2 of the Criminal Code, defines "Family or household members"

and provides that these terms include not only "spouses, former spouses, parents, children,

stepchildren[,] and other persons related by blood or by present or prior marriage" but also

"persons who share or formerly shared a common dwelling" and "persons who have or have

had a dating or engagement relationship." 725 ILCS 5/112A-3(3) (West 2004). Subsection

3 of section 112A-3 further provides that "neither a casual acquaintanceship nor ordinary

fraternization between 2 individuals in business or social contexts shall be deemed to

constitute a dating relationship." 725 ILCS 5/112A-3(3) (West 2004).

       When a defendant challenges the sufficiency of the evidence, it is not the function of

a reviewing court to retry the defendant. People v. Evans, 209 Ill. 2d 194, 209, 808 N.E.2d

939, 947 (2004). Rather, a reviewing court must consider 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. People v. Ward, 215

Ill. 2d 317, 322, 830 N.E.2d 556, 559 (2005). Here, defendant was convicted following a

jury trial; therefore, it was the province of the jury to determine the credibility of witnesses,

evaluate the evidence, and resolve any inconsistencies therein. People v. Penrod, 316 Ill.

App. 3d 713, 721, 737 N.E.2d 341, 350 (2000). A conviction should not be reversed "unless

the evidence is so unreasonable, improbable[,] or unsatisfactory that it raises a reasonable


                                               7
doubt of defendant's guilt." Evans, 209 Ill. 2d at 209, 808 N.E.2d at 947.

       In the instant case, we agree with the State that the evidence, when viewed in the light

most favorable to the prosecution, shows that defendant and the victim, Lisha Clary, were

involved in a "dating relationship." Clary specifically testified that she and defendant "were

dating." She described her relationship with defendant as more than platonic and revealed

that she and defendant had engaged in sex as recently as two days prior to the date in

question. Both she and her daughter testified that they had been living at defendant's house

for approximately three weeks prior to the incident in question. Clary kept both clothes and

medications at the defendant's house. She testified that she slept in defendant's bed. Clary's

daughter testified that she believed that her mother and defendant were "going out," because

she saw them hugging and kissing during the weeks they lived at defendant's house. Clary's

and K.F.'s testimony showed that the parties' relationship was neither a casual acquaintance

nor ordinary fraternization, but a romantic relationship between two adults who were living

in the same household.

       Defendant relies on People v. Young, 362 Ill. App. 3d 843, 840 N.E.2d 825 (2005),

in support of his contention that the evidence failed to show he and Clary were "family or

household members" as required for a domestic battery conviction. However, Young is

distinguishable from the instant case. First, the Young court found that the complainant and

the defendant did not have a fixed residence and resided in homeless shelters and that there

was no evidence that they had formed a household. Young, 362 Ill. App. 3d at 850, 840

N.E.2d at 830. The Young court specifically stated that "for two people to 'share a common

dwelling' is for them to stay in one place together on an extended, indefinite, or regular

basis." Young, 362 Ill. App. 3d at 849, 840 N.E.2d at 830. Here, Clary and defendant stayed

together at defendant's rental property, not a homeless shelter.        According to Clary's

testimony and her daughter's testimony, Clary lived with defendant for three weeks prior to


                                              8
December 16, 2005.

       Second, in Young, the complaining witness actually denied the existence of a dating

relationship with the defendant, claiming instead that the two had only a social relationship.

Young, 362 Ill. App. 3d at 845, 840 N.E.2d at 827. The court found that because the

complaining witness chose the word "social" to describe the parties' relationship, there was

direct evidence that she did not think the focus of the relationship was romantic. Young, 362

Ill. App. 3d at 852, 840 N.E.2d at 832. Here, on the other hand, the complaining witness

believed her relationship with defendant was romantic. She had lived with defendant for

three weeks prior to the date in question. During that time, she slept in defendant's bed and

engaged in sex with defendant. Her daughter confirmed that the nature of the relationship

was romantic. According to K.F. both she and defendant's daughter encouraged the romantic

relationship between their parents. K.F. said she saw defendant and her mother hugging and

kissing during the weeks she and her mother lived at defendant's house.

       The Young court noted particular changes to the statute in question that indicate the

General Assembly's intention to address particular problems of abuse within intimate

relationships:

       "Until 1993, the section encompassed only people who would fall within the ordinary

       understanding of former and current family and household members: ' "Family or

       household members" includes spouses, former spouses, parents, children,

       stepchildren[,] and other persons related by blood or marriage, persons who share or

       formerly shared a common dwelling, and persons who have or allegedly have a child

       in common.' 725 ILCS 5/112A-3(3) (West 1992). Effective 1993, the General

       Assembly added to the definition 'persons who have or have had a dating or

       engagement relationship, [and] persons with disabilities and their personal assistants.'

       Pub. Act 87-1186, eff. January 1, 1993. These are tw o groups that one might not


                                              9
       naturally include in a class with family or household members, but for which the

       problems of abuse are similar to those in more strictly domestic relationships. By

       broadening the definition this way, the General Assembly made it reach most intimate

       relationships." Young, 362 Ill. App. 3d at 850-51, 840 N.E.2d at 831.

While the relationship in Young was not the type of intimate relationship our General

Assembly envisioned, the relationship here is.

       We agree with the Young court to the extent that just because persons share lodgings

does not necessarily mean that they share a common dwelling. Young, 362 Ill. App. 3d at

849, 840 N.E.2d at 830. However, we need not reach the issue of whether Clary and

defendant shared a common dwelling, because they clearly shared a dating relationship. Not

only did they live in the same house, but also they shared the same bed for three weeks prior

to the incident. Their relationship was a kind in which problems of abuse might arise.

Overall, we find the evidence sufficient to support a finding that defendant and Clary were

family or household members within the meaning of the statute, so we will not reduce

defendant's conviction to the lesser-included offense of battery.

       The second issue we are asked to address is whether defendant is entitled to a credit

of $5 per day toward the fine he was assessed for time spent in custody prior to sentencing.

Defendant argues he served five days in custody prior to sentencing and that, thus, he is

entitled to a credit of $25 toward his $500 fine. The State concedes that defendant is entitled

to a credit of $5 per day for the time he spent in pretrial custody, but it asserts that defendant

was in jail only for two days prior to posting bail and, accordingly, is entitled to a credit of

only $10. We give defendant the benefit of the doubt that he is entitled to a $25 credit

toward his fine. This case is remanded with directions to modify the mittimus to reflect a $25

credit toward the $500 fine.




                                               10
                                        CONCLUSION

       For the foregoing reasons, defendant's conviction and sentence are affirmed. The

cause is remanded with directions to modify the mittimus to reflect a $25 credit toward the

$500 fine imposed by the trial court.



       Affirmed in part; cause remanded with directions.



       DONOVAN and WEXSTTEN, JJ., concur.




                                            11
                                           NO. 5-06-0514

                                               IN THE

                                APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                            ) Circuit Court of
           Plaintiff-Appellee,              ) Fayette County.
                                            )
      v.                                    ) No. 06-CF-20
                                            )
      ROBERT C. TAYLOR,                     ) Honorable
                                            ) S. Gene Schwarm,
           Defendant-Appellant.             ) Judge, presiding.
___________________________________________________________________________________

Opinion Filed:        April 7, 2008
___________________________________________________________________________________

Justices:           Honorable Richard P. Goldenhersh, J.

                 Honorable James K. Donovan, J.,
                 Honorable James M. Wexstten, J.,
                 Concur
___________________________________________________________________________________

Attorneys        Daniel M . Kirwan, Deputy Defender, Paige Clark Strawn, Assistant Defender,
for              Office of the State Appellate Defender, Fifth Judicial District, 117 North Tenth
Appellant        Street, Suite 300, Mt. Vernon, IL 62864
___________________________________________________________________________________

Attorneys        Hon. Steve Friedel, State's Attorney, Fayette County Courthouse, Vandalia, IL 62471;
for              Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, David Murrell,
Appellee         Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730 E. Illinois
                 Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________________
