                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Howard, 2012 IL App (3d) 100925




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    EVERETT L. HOWARD, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-10-0925


Filed                      May 29, 2012


Held                       Defendant’s conviction for aggravated domestic battery was reduced to
(Note: This syllabus       aggravated battery due to the State’s failure to establish that defendant
constitutes no part of     and the victim were involved in a dating relationship.
the opinion of the court
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Knox County, No. 09-CF-393; the Hon.
Review                     Stephen C. Mathers, Judge, presiding.



Judgment                   Affirmed as modified.
Counsel on                 Gabrielle Green, of State Appellate Defender’s Office, of Ottawa, for
Appeal                     appellant.

                           John T. Pepmeyer, State’s Attorney, of Galesburg (Terry A. Mertel and
                           Nadia L. Chaudhry, both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.


Panel                      JUSTICE HOLDRIDGE delivered the judgment of the court, with
                           opinion.
                           Justice O’Brien concurred in the judgment and opinion.
                           Presiding Justice Schmidt dissented, with opinion.


                                             OPINION

¶1          Defendant, Everett L. Howard, was convicted of aggravated domestic battery (720 ILCS
        5/12-3.3(a) (West 2008)), a Class 2 felony, and sentenced to 30 months’ probation and 60
        days in jail. He appeals his conviction, arguing that the evidence failed to establish that he
        was in a dating relationship with the victim and, therefore, his conviction should be reduced
        to aggravated battery (720 ILCS 5/12-4(a) (West 2008)), a Class 3 felony. We agree and
        reduce defendant’s conviction from aggravated domestic battery to aggravated battery.

¶2                                                FACTS
¶3          Defendant was charged with aggravated domestic battery (720 ILCS 5/12-3.3(a) (West
        2008)), unlawful restraint (720 ILCS 5/10-3(a) (West 2008)), and domestic battery (720
        ILCS 5/12-3.2(a)(1) (West 2008)). The cause proceeded to a bench trial.
¶4          At trial, the victim testified that on the night of the incident she met up with defendant
        and other friends at a local bar. While there, she agreed to meet defendant at his residence
        after they left the bar separately. At defendant’s house, the victim and defendant had a couple
        beers and then engaged in sexual intercourse. When they were finished, defendant went to
        the bathroom, and when he returned to the bedroom, he was angry. He grabbed the victim
        by the hair and pulled her off the bed. After a failed attempt to defend herself, defendant got
        on top of the victim and struck her numerous times with a closed fist.
¶5          Both the victim and defendant testified regarding the status of their relationship. When
        asked if they were in a dating relationship, both stated that they were not; however, they had
        had around 15 sexual encounters beginning approximately a year and a half before the
        incident. The victim stated that their relationship was strictly sexual in nature. Defendant
        considered the relationship to be a series of “one-night stands” and stated that he had never
        bought the victim flowers. The two had never spent an entire night together and did not
        spend much time in each other’s company outside the presence of their group of friends.


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¶6         The trial court found defendant guilty of aggravated domestic battery after concluding
       that he and the victim were in a dating relationship. Defendant was sentenced to 30 months’
       probation and 60 days’ incarceration. Defendant appeals.

¶7                                           ANALYSIS
¶8          Defendant argues that the evidence at trial failed to establish that he was in a dating
       relationship with the victim. When presented with a challenge to the sufficiency of the
       evidence, it is not the function of this court to retry defendant; 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 beyond a reasonable
       doubt. People v. Collins, 106 Ill. 2d 237 (1985). A conviction will only be overturned where
       the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt
       of defendant’s guilt. People v. Smith, 185 Ill. 2d 532 (1999).
¶9          In order to be convicted of domestic battery, the State must prove that the accused and
       the victim were family or household members. 720 ILCS 5/12-3.2(a)(1) (West 2008). Family
       or household members include persons who have or have had a dating or engagement
       relationship. 725 ILCS 5/112A-3(3) (West 2008). Here, the State attempted to prove that
       defendant and the victim had a dating relationship.
¶ 10        At trial, evidence established that defendant and the victim had numerous sexual
       encounters; however, it is not enough to show that defendant and the victim had an intimate
       relationship. The State must show that they had a dating relationship. People v. Young, 362
       Ill. App. 3d 843 (2005). The Second District has defined a dating relationship to mean
       serious courtship, which must be, at a minimum, an established relationship with a
       significant romantic focus. Id. While defendant and the victim clearly had an established
       relationship, we do not find that their relationship had a romantic focus. Both defendant and
       the victim testified that they were not dating and defendant stated that he never bought the
       victim flowers. Defendant and the victim were not exclusive, and the relationship did not
       contain any sort of shared expectation of growth. Rather, defendant and the victim engaged
       in random sexual encounters which were physical in nature, not romantic.
¶ 11        Based on the evidence, we find that the State did not establish a dating relationship and
       defendant cannot be convicted of the Class 2 felony of aggravated domestic battery. Thus,
       we reduce defendant’s conviction to the Class 3 felony of aggravated battery. While we
       reduce defendant’s conviction, we believe that the sentence imposed by the trial court is
       appropriate for the Class 3 felony of aggravated battery. See Ill. S. Ct. R. 615(b); 730 ILCS
       5/5-4.5-40(d) (West 2008). Therefore, we allow defendant’s sentence to stand.

¶ 12                                   CONCLUSION
¶ 13      The judgment of the circuit court of Knox County is affirmed as modified.

¶ 14      Affirmed as modified.



                                                 -3-
¶ 15       PRESIDING JUSTICE SCHMIDT, dissenting:
¶ 16       The issue before us, as the majority concedes (supra ¶ 9), is whether after viewing the
       evidence in the light most favorable to the prosecution, any rational trier of fact could have
       found that the defendant and his victim have or have had a dating relationship. People v.
       Collins, 106 Ill. 2d 237 (1985); 725 ILCS 5/112A-3(3) (West 2008).
¶ 17       The victim testified that sometime after meeting defendant through friends, her
       relationship with him evolved into more than just friends, although she testified she was “not
       really” dating defendant. Nonetheless, there is evidence that defendant and his victim “hung
       out” together, drank together, played pool together, talked on the phone and spent time at
       each other’s homes. They had sexual relations approximately 15 times, including the night
       of the incident. This relationship was not the “intimate friendship and intimate working
       relationship” referred to in People v. Young, 362 Ill. App. 3d 843, 851 (2005).
¶ 18       I am troubled by the majority’s apparent requirement that a dating relationship for
       purposes of section 112A-3(3) (725 ILCS 5/112A-3(3) (West 2008)) must include a “shared
       expectation of growth.” (Emphasis added.) Supra ¶ 10. I do not want to even guess what
       percentage of domestic relationships that requirement would exclude from coverage. It would
       seem that very often in a relationship expectations of growth are not mutual. Also, the
       majority finds it significant that defendant never sent flowers to the victim. Supra ¶ 10. Well,
       there goes at least another 80% of the relationships! Under the statute, the victim and the
       accused must simply have or have had a dating relationship. Because I believe reasonable
       people could find, based on the evidence presented, that this is or was a dating relationship
       regardless of what the participants called it, a rational trier of fact could have found the
       essential elements of the crime beyond a reasonable doubt. With all due respect, I submit that
       the majority has improperly engaged in a reweighing of the evidence.
¶ 19       I would affirm the trial court. Therefore, I respectfully dissent




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