                                       2016 IL App (1st) 140046


                                                                             FIFTH DIVISION
                                                                             March 18, 2016


No. 1-14-0046


                                                                 )   Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS,                             )   Circuit Court of
                                                                 )   Cook County
                Plaintiff-Appellee,                              )
                                                                 )
v.                                                               )   No. 12 CR 16053
                                                                 )
DANIEL GUJA,                                                     )
                                                                 )   Honorable
                Defendant-Appellant.                             )   Thaddeus L. Wilson,
                                                                 )   Judge Presiding.


       PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.
       Justices Gordon and Lampkin concurred in the judgment and opinion.


                                            OPINION

¶1     Following a bench trial in the circuit court of Cook County, defendant Daniel Guja was

acquitted of attempted first degree murder, aggravated criminal sexual assault, aggravated

criminal sexual abuse, burglary, and aggravated domestic battery, but was found guilty of

domestic battery and unlawful restraint. Defendant was sentenced to two concurrent two-year

terms in the Illinois Department of Corrections. On appeal, defendant argues: (1) defense

counsel was ineffective for failing to include the affirmative defenses of necessity and self-

defense in his answer to discovery in violation of Illinois Supreme Court Rule 413(d) (eff. July 1,

1982); (2) the trial court abused its discretion in denying his motion to amend the answer as a

sanction for the discovery violation; and (3) certain fees and fines should be vacated or reduced.
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Because we conclude defendant was not prejudiced by either defense counsel's failure to amend

his answer to discovery or the trial court's denial of defendant's request to amend his answer, we

affirm the judgment of the circuit court. We, however, modify the fees and fines assessed as

provided herein.

¶2                                    BACKGROUND

¶3     The evidence at trial established that in the early morning hours of December 30, 2011,

defendant and his then-girlfriend, Sandra Ortiz (Ortiz), began arguing. This argument escalated

into a physical altercation, which left Ortiz with injuries. Ortiz was thereafter taken by

ambulance to an emergency room where she was treated.

¶4     Defendant was subsequently indicted on 20 separate charges for attempted first degree

murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)), aggravated criminal sexual assault (720

ILCS 5/11-1.30(a)(4) (West 2010)), aggravated criminal sexual abuse (720 ILCS 5/11-1.60(a)(6)

(West 2010)), burglary (720 ILCS 5/19-1(a) (West 2010)), aggravated domestic battery (720

ILCS 5/12-3.3(a-5) (West 2010)), domestic battery (720 ILCS 5/12-3.2(a)(1) (West 2010)), and

unlawful restraint (720 ILCS 5/10-3(a) (West 2010)).

¶5     On September 13, 2012, the State filed a motion for pretrial discovery requesting in part

written notice of any defenses defendant intended to assert at trial. On June 20, 2013, defense

counsel filed an answer to the State's motion stating that defendant would "rely on the State's

inability to meet its burden of proof." The answer did not list any affirmative or nonaffirmative

defenses.

¶6     Defendant's bench trial commenced on September 18, 2013. During the opening

statements, defense counsel asserted that Ortiz "started a fight and became violent with

defendant." Defense counsel also stated that, while restrained by defendant, Ortiz attempted to



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strike him. Defense counsel further argued that the bruises sustained by Ortiz demonstrated that

she was restrained by defendant and that ultimately the evidence would demonstrate that

defendant was not guilty.

¶7     Ortiz testified that she was 40 years old. At the time of the altercation, she was living in

Chicago and dating defendant. The altercation occurred at a building owned by Ortiz located on

North Milwaukee Avenue in Chicago. The first floor of the building was a commercial space she

used to host parties, while the second floor was occupied by tenants. In the late evening of

December 29, 2011, Ortiz, defendant, and some of her friends prepared the first floor of her

building for a party.

¶8     At approximately 3 a.m. on December 30, 2011, Ortiz and defendant left the building to

go to a nightclub, where they met other friends. While there, Ortiz consumed "a few drinks."

When the nightclub closed at 4 a.m., Ortiz drove defendant back to her building. During the

ride, defendant accused Ortiz of being interested in other men.

¶9     Defendant and Ortiz were arguing as they exited her vehicle. Ortiz informed defendant

that he was not welcome in her building. Based on prior incidents, Ortiz believed the argument

would escalate further, so she telephoned the police. While Ortiz was making the phone call,

defendant seized the cell phone from Ortiz and removed the cell phone battery. According to

Ortiz, the police arrived at her building approximately five minutes later. She spoke with the

police and went inside. Defendant remained outside and continued to speak with the police.

¶ 10   When Ortiz believed defendant had departed, she went outside and walked across the

street to speak with a woman named Marta who sold tamales from a stand. During the

conversation, Ortiz observed defendant "popping his head out" from behind an automobile

parked one-quarter of a block from her building. Ortiz testified that she used Marta's cell phone



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to contact the police, but the police did not arrive.

¶ 11   Ortiz went back to her building and 30 minutes later began loading personal items into

the automobile she planned to drive to her home in the suburbs. As Ortiz attempted to reenter

the building, defendant, who was hiding outside the door, pushed his way inside. In doing so,

defendant knocked Ortiz to the ground. Ortiz attempted to stand up, but defendant knocked her

down again, locked the door, and dragged her into the next room by her ankles. Ortiz kicked and

yelled, demanding that defendant leave the building. Defendant then struck her in the head and

face. On cross-examination, Ortiz clarified that defendant punched her with a closed fist and

slapped her on the side of the head, but not in the face. Ortiz attempted to flee from the building,

but defendant grabbed her, threw her over his shoulder, and slammed her body onto a granite

countertop. Ortiz further testified that she lost consciousness when her head struck the

countertop.

¶ 12   When Ortiz regained consciousness, defendant was on top of her. Defendant held her

down and placed his hands over her mouth, restricting her breathing. Ortiz then placed her hands

inside defendant's mouth to get him to stop choking her. Defendant got up while Ortiz remained

on the floor crying and yelling at him to leave.

¶ 13   As Ortiz then attempted to crawl away from defendant, he grabbed her by the feet, pulled

her towards him, and pulled her pants down. It was then that defendant "shoved" his fingers in

her anus. Defendant proceeded to rip her blouse and brassiere, and grab her breasts.

¶ 14   Ortiz attempted to escape through the back door when defendant kicked an interior door

down and it fell on her. Defendant then threw a metal table on top of her. As Ortiz was lying on

the ground begging him to leave, defendant tried to take Ortiz's keys out of the pocket of the vest

she was wearing. After a struggle, defendant obtained the keys, declared, "I give up," and left.



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¶ 15   Ortiz testified that after defendant left she went outside and yelled for help. One of her

tenants, a man named Benjamin, came out of the building and waited with Ortiz until the police

and an ambulance arrived and transported her to Norwegian American Hospital. Ortiz was

treated at the hospital, but did not have any broken bones and was discharged later that

afternoon.

¶ 16   According to Ortiz, during the struggle, which lasted from approximately 5 a.m. through

10:30 a.m., defendant grabbed her throat, pulled her hair, and "banged" her head into walls and

the floor several times. Ortiz identified photographs of her injuries, which included scratches on

her chest, and bruises on her face, lips, wrist, arms, hands, legs, and knees.

¶ 17   During her testimony Ortiz acknowledged that she did not immediately inform the

ambulance crew or the police that defendant had inserted his fingers into her anus because her

tenant was with her at the time and she was embarrassed. Ortiz, however, did inform them of

this fact at the hospital. She also acknowledged that she had loaned defendant approximately

$5,000 and had not been fully repaid. Ortiz denied consuming alcohol prior to visiting the

nightclub and reiterated that she consumed only two or three alcoholic beverages while at the

nightclub.

¶ 18   Ortiz additionally testified to two prior incidents of violence involving her and defendant

which occurred in September 2011. During the first incident, defendant pushed her, but did not

injure her. In the second incident, defendant struck her during an argument while they were

traveling from Las Vegas to Chicago, bloodying her nose. The State also introduced into

evidence a certified statement of defendant's December 2000 conviction for misdemeanor

domestic battery.

¶ 19   Andrew Mueller (Mueller), one of Ortiz's tenants on the date in question, testified he was



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awakened by a "commotion," including yelling, screaming and the sound of "the occasional

thing breaking." He, however, "didn't think anything of it." Thereafter, Mueller decided to leave

for work. He observed Ortiz standing across the street from the building conversing with "the

lady that sells tamales every morning."

¶ 20    The parties stipulated to the testimony of four witnesses. The parties stipulated that if

Francis Walsh (Walsh) was called as a witness, he would testify that he was employed by the

Chicago fire department as an emergency medical technician and that he spoke with Ortiz at

approximately 10:53 a.m. on December 30, 2011. According to Walsh, Ortiz reported that she

was battered by her boyfriend for approximately two hours, including being beaten with fists,

kicked, and dragged. Walsh would also testify that he did not record that Ortiz informed him

defendant grabbed and twisted her breasts in his incident report.

¶ 21    The parties also agreed that Dany Jose (Jose), if called as a witness, would testify he was

a registered nurse who treated Ortiz at Norwegian American Hospital on December 30, 2011.

Ortiz's chief complaints were of back pain and a headache and that her back pain was initially an

"8" on a scale of 0 to 10, but the pain later decreased to a "3." According to Jose, Ortiz stated

she was assaulted by her boyfriend for several hours in her house. Jose observed several bruises

to Ortiz's arms and chest. Ortiz indicated she was verbally and physically abused but initially

denied any rape. Ortiz reported to Jose that she had informed a doctor that her boyfriend had

penetrated her anus with his fingers. Jose observed contusions to Ortiz's left buttock, but did not

observe anal abrasions or bleeding. Ortiz was discharged from the hospital on December 30,

2011.

¶ 22    Elizabeth Sisler (Sisler), if called as a witness, would testify she was a forensic scientist

in the forensic biology section at the Illinois State Police Division of Forensic Sciences. She



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received Ortiz's clothing and buccal standards from Ortiz and defendant. She observed damage

to the construction of Ortiz's underwear and brassiere, but found no semen on either garment.

¶ 23   Lynnette Wilson (Wilson), a second forensic scientist in the same department, if called as

a witness, would testify that a stain on the brassiere was subjected to DNA testing that revealed a

mixture of DNA profiles consistent with having originated from two individuals. Wilson would

also testify that one DNA profile was consistent with Ortiz and that defendant could not be

excluded as a possible donor for the other DNA profile.

¶ 24   The State rested its case. Defense counsel moved for a directed finding, which the trial

court granted as to the charges of attempted first degree murder, aggravated sexual abuse, and as

to one count of aggravated criminal sexual assault. The trial was then continued by agreement

until October 18, 2013.

¶ 25   At the outset of defendant's case, the parties stipulated to the testimony of an additional

witness. The parties agreed that, if called as a witness, Chicago police officer Mark Kalamaris

(Kalamaris) would testify that he responded to a radio call for assistance on North Milwaukee

Avenue and spoke with Ortiz at approximately 10:41 a.m. on December 30, 2011. Officer

Kalamaris recalled that Ortiz stated defendant punched and slapped her. He did not recall Ortiz

informing him that she had been suffocated or choked. Officer Kalamaris also did not recall

Ortiz informing him that she had lost consciousness during the fight, or that defendant had

grabbed her breasts during the struggle.

¶ 26   Defendant testified on his own behalf that he was 35 years old. He met Ortiz in April

2011, while working at a nightclub where she was a patron. Defendant began working for Ortiz

as a bouncer at her "after hours" club on North Milwaukee Avenue, and commenced dating Ortiz

three weeks later. Defendant was aware that Ortiz did not have a liquor license for her "after



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hours" club.

¶ 27   According to defendant, he and Ortiz had "a few drinks" on the evening of December 29,

2011, while preparing Ortiz's club for a series of parties for the New Year's weekend. Defendant

testified he also consumed "a few drinks" at the nightclub he and Ortiz visited thereafter, adding

that Ortiz was also drinking alcoholic beverages. When the nightclub closed, Ortiz invited a few

patrons back to her "after hours" club.

¶ 28   Defendant further testified that while driving to Ortiz's building, he noticed that she

appeared too intoxicated to host the party. When they arrived at her building, defendant told

Ortiz that she was not "stable" enough to host the party. The couple began arguing. Ortiz

cancelled the party and continued to argue with defendant, ultimately telephoning the police.

Defendant, who was on misdemeanor probation, left the area and walked three blocks to a

nearby train station. According to defendant, he remained at the train station for between 30 to

60 minutes before telephoning and transmitting text messages to Ortiz because he did not have

his jacket or other belongings. Defendant further testified that Ortiz ultimately agreed to permit

him to return, collect his belongings and leave her building.

¶ 29   When defendant returned to the building, the police were outside. Defendant approached

the officers and explained the situation. According to defendant, the police, observing that Ortiz

was intoxicated and "acting crazy" and that he was also intoxicated, suggested that he leave the

area and return later. Defendant assured the police he would simply retrieve his belongings and

leave. He then knocked on the door of the building and was eventually admitted entry by Ortiz.

¶ 30   Defendant began packing his belongings, which included his clothing, DJ equipment, and

bottles of alcohol. Defendant testified his clothing was in 10 separate garbage bags and was

mixed in with Ortiz's clothes, and thus it took a longer time to gather his belongings. According



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to defendant, he was no longer consuming alcohol at this time, but Ortiz was still drinking.

¶ 31    Ortiz and defendant began arguing, with Ortiz accusing defendant of providing free

drinks to women at the nightclub. Defendant explained he did so to promote Ortiz's "after hours"

club. Defendant testified that Ortiz "exploded into a rage," and threw an ashtray and a candle at

him. Ortiz started hitting him, telling him to get his clothes and "get the hell out."

¶ 32    Defendant "cussed" at Ortiz and "called her some names," at which point "[s]he went in a

worst [sic] rage *** grabbed the Bicardi [sic] bottle and charged" at him with the bottle.

Defendant grabbed Ortiz's hand and "gently" took her down to the ground to restrain and calm

her. After approximately a minute of holding Ortiz down, defendant testified, "Then I told her

these exact words. I said, b***, you are not going to make another dollar in these after hours."

According to defendant, that meant he was going to inform the police of her unlicensed

operation. Defendant then left the building, informing Ortiz she could keep his clothes. On

cross-examination, defendant added that as he left the building, Ortiz replied that he "was going

to jail." Defendant further denied choking, punching, or kicking Ortiz. Defendant also denied

inserting his fingers into her anus.

¶ 33    On cross-examination, Defendant acknowledged he and Ortiz had arguments, including

prior incidents where Ortiz had contacted the police, but denied he had ever been physically

violent with her. Defendant admitted he and Ortiz argued while traveling from Las Vegas to

Chicago, but denied intentionally bloodying her nose. According to defendant, he struck Ortiz

with his elbow while trying to remove the keys from the automobile's ignition while he was

seated in the rear of the vehicle.

¶ 34    Regarding the argument on December 30, 2011, defendant testified that he and Ortiz

began arguing as they were exiting the automobile. Defendant acknowledged he continued to



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argue with Ortiz despite her history of contacting the police and his probationary status. He

denied grabbing Ortiz's cell phone. Defendant clarified that after Ortiz charged at him, he took

her down to the ground "not so gently," but he did not "slam" her to the ground.

¶ 35   Defendant further acknowledged that he spoke to a police detective following his arrest

on July 29, 2012. Defendant did not recall whether he informed the detective that Ortiz threw an

ashtray and a candle at him. Defendant also did not recall whether he informed the detective that

Ortiz charged at him with a liquor bottle.

¶ 36   At the conclusion of the defense case, defendant's counsel moved to amend his answer to

discovery to include the affirmative defenses of necessity and self-defense. The State objected,

arguing that defense counsel had given the State no notice of the affirmative defenses although

counsel had communications with defendant and would have known of the potential defenses.

Defense counsel replied that the State could adduce evidence in rebuttal of the affirmative

defenses. The trial court denied the defense motion to amend the answer, stating that "when

there has been no affirmative defense alleged in the answer, then there would be an unfair

surprise to the State in preparing its case to deal with an affirmative defense." The trial court

added that the court also reviewed the answer before trial to prepare for the type of proof

anticipated at trial. The defense rested.

¶ 37   In rebuttal, the State called Chicago police detective Joan Burke, who testified that she

spoke with defendant on the date of his arrest. According to Detective Burke, defendant stated

that the argument with Ortiz became "a bit physical," and that he held Ortiz down because she

was going to contact the police. Detective Burke did not recall defendant stating that Ortiz threw

an ashtray or charged at him with a liquor bottle, but she did recall defendant mention a

candlestick. Detective Burke also testified that defendant stated he seized Ortiz's cell phone and



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removed the battery to prevent her from contacting the police.

¶ 38       Following closing arguments, the trial judge found defendant guilty on the charges of

domestic battery and unlawful restraint. The trial judge, however, acquitted defendant of the

remaining charges of aggravated domestic battery, burglary, and aggravated criminal sexual

assault.

¶ 39       On November 5, 2013, defendant filed a posttrial motion for a new trial. The posttrial

motion asserted: (1) the evidence was insufficient to convict; and (2) the trial judge erred by

denying the motion to amend the answer to discovery "to allege the affirmative defense of self-

defense and defense of another." On December 11, 2013, the trial judge denied defendant's

posttrial motion and proceeded to a sentencing hearing. After hearing arguments in aggravation

and mitigation of the offense, the trial judge sentenced defendant to serve two concurrent terms

of two years in the Illinois Department of Corrections. In addition, the trial judge imposed

several fees and fines, including a $20 preliminary hearing fee and a $100 fine for the Violent

Crime Victims Assistance Fund. On December 12, 2013, defendant filed a timely notice of

appeal to this court.

¶ 40                                            ANALYSIS

¶ 41       On appeal, defendant argues: (1) defense counsel was ineffective for failing to include the

affirmative defenses of necessity and self-defense in his answer to discovery in violation of

Illinois Supreme Court Rule 413(d) (eff. July 1, 1982); (2) the trial court abused its discretion in

denying his motion to amend the answer as a sanction for the discovery violation; and (3) certain

fees and fines should be vacated or reduced. We address each issue in turn.

¶ 42                             Ineffective Assistance of Counsel

¶ 43       Defendant asserts defense counsel was ineffective when he failed to file an answer



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notifying the State of the affirmative defenses he intended to raise. According to defendant, this

failure to comply with Illinois Supreme Court Rule 413(d) (eff. July 1, 1982) fell below the level

of reasonable representation. Defendant maintains that defense counsel intended to assert these

defenses, as demonstrated by counsel's opening statement, but that he failed to properly notify

the State of his intent. Defendant contends he was prejudiced by defense counsel's deficient

performance because, as a result, the trial court excluded his affirmative defenses of necessity

and self-defense.

¶ 44   In response, the State argues that defense counsel's failure to give notice of the

affirmative defenses constituted reasonable trial strategy, particularly where he stated in his

answer to discovery that he intended to rely on the State's inability to prove its case. The State

remarks that defense counsel's strategy was, in fact, successful in achieving acquittal on all but

two of the counts asserted against defendant. According to the State, even if defense counsel's

performance was deficient, defendant was not prejudiced as there was ample evidence in support

of his domestic battery and unlawful restraint convictions.

¶ 45   A defendant has a sixth amendment right to effective assistance of counsel. U.S. Const.,

amends. VI, XIV; Ill. Const. 1970, art. I, § 8. An accused is entitled to capable legal

representation at trial. People v. Wiley, 165 Ill. 2d 259, 284 (1995). To establish a claim of

ineffective assistance of counsel, a defendant must prove both (1) deficient performance by

counsel and (2) prejudice to defendant. People v. Smith, 195 Ill. 2d 179, 187-88 (2000) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). To satisfy the first prong of the Strickland

test, a defendant must demonstrate his counsel's performance fell below an objective standard of

reasonableness, as measured by prevailing norms. Smith, 195 Ill. 2d at 188. "To establish

deficient performance, the defendant must overcome the strong presumption that counsel's action



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or inaction was the result of sound trial strategy." People v. Perry, 224 Ill. 2d 312, 341-42

(2007). To satisfy the second prong, prejudice is demonstrated if there is a reasonable

probability that, but for counsel's deficient performance, the outcome of the proceeding would

have been different. People v. Albanese, 104 Ill. 2d 504, 525 (1984); People v. Echols, 382 Ill.

App. 3d 309, 312 (2008). A probability rises to the level of a " 'reasonable probability' " when it

is " 'sufficient to undermine confidence in the outcome' " of the proceeding. People v. Peeples,

205 Ill. 2d 480, 513 (2002) (quoting Strickland, 466 U.S. at 694). The failure to satisfy either the

deficiency prong or the prejudice prong of the Strickland test precludes a finding of ineffective

assistance of counsel. Strickland, 466 U.S. at 697; Peeples, 205 Ill. 2d at 513. If it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course

should be followed. Albanese, 104 Ill. 2d at 527.

¶ 46   Regardless of whether trial counsel's failure to assert the affirmative defenses of necessity

and self-defense was deficient, we do not believe that defendant incurred any prejudice at trial as

a result of the claimed error. In order to raise an affirmative defense, the defendant is required to

present some evidence on the issue unless the State's evidence raises the issue. 720 ILCS 5/3-

2(a) (West 2010). Once an affirmative defense has been raised, the State must sustain the burden

of proving the defendant guilty beyond a reasonable doubt as to that issue. 720 ILCS 5/3-2(b)

(West 2010). The record discloses the State did not present evidence as to the affirmative

defenses of necessity and self-defense. Therefore, defendant must present "some evidence" in

support of his claim. People v. Kratovil, 351 Ill. App. 3d 1023, 1033 (2004). While the

threshold of establishing some evidence is relatively low (see People v. Kite, 153 Ill. 2d 40, 45

(1992)), the evidence deemed to be adequate to raise an affirmative defense must be evidence

sufficient to raise a reasonable doubt as to the defendant's guilt. People v. Govan, 169 Ill. App.



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3d 329, 336 (1988) (citing People v. White, 78 Ill. App. 3d 979, 981 (1979)).

¶ 47   Here, defense counsel, at the close of defendant's case, sought to amend the answer to

include the defenses of necessity and self-defense. The defense of necessity involves the

following elements: (1) the person claiming the defense was without blame in occasioning or

developing the situation; and (2) the person reasonably believed that his conduct was necessary

to avoid a greater public or private injury than that which might have reasonably resulted from

his own conduct. 720 ILCS 5/7-13 (West 2010); Govan, 169 Ill. App. 3d at 336. The defense of

necessity applies when the threat of harm was immediate, and defendant's conduct was the sole

option to avoid injury. People v. Azizarab, 317 Ill. App. 3d 995, 998-99 (2000); see Kratovil,

351 Ill. App. 3d at 1034 ("Conduct that would otherwise be illegal is justified by necessity only

if the conduct was the sole reasonable alternative available to the defendant under the

circumstances." (citing People v. Henderson, 223 Ill. App. 3d 131, 136 (1991))). The defense of

necessity "is viewed as involving the choice between two admitted evils where other optional

courses of action are unavailable, and the conduct chosen must promote some higher value than

the value of literal compliance with the law [citation]." People v. Janik, 127 Ill. 2d 390, 399

(1989). In our view, the record does not contain even "some evidence" which would satisfy

these requirements.

¶ 48   Under the first prong of the necessity defense, there was no evidence that defendant was

without blame in occasioning the situation. Defendant himself testified that he "cussed" at Ortiz

and "called her some names" causing her to go into a "rage." Defendant further testified that,

while holding Ortiz down on the floor, he called her a b*** and threatened to tell the authorities

about her unlicensed "after hours" club. The evidence, including defendant's testimony,

established that over the course of the argument defendant was not just an innocent bystander,



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but also prompted the escalation of the argument and the physical altercation.

¶ 49   Defendant further fails to satisfy the second prong of the necessity defense. In reviewing

this element of the defense we consider whether defendant's conduct constitutes the "sole

reasonable alternative" available to him under the circumstances. See People v. Perez, 97 Ill.

App. 3d 278, 281 (1981). The evidence here established defendant did not have a reasonable

belief that his actions were the "sole reasonable alternative." Under the circumstances, defendant

had available other courses of action that were less harmful. The record reveals that the

argument between defendant and Ortiz lasted over several hours, providing defendant with

ample opportunity to withdraw from the argument. Additionally, when the argument escalated to

where, according to defendant, Ortiz "charged" at him with a Bacardi bottle, defendant could

have left the building. In fact, defendant could have heeded the officers' advice and not returned

to the building at all that evening. In sum, because defendant had reasonable alternatives other

than bringing Ortiz down to the ground and restraining her, the defense of necessity was

therefore unavailable to him as a matter of law. See Kratovil, 351 Ill. App. 3d at 1034.

¶ 50   In further support of the lack of evidence to establish the second prong of the necessity

defense, the record discloses that defendant actually caused more harm to Ortiz than he sought to

prevent. Ortiz testified that after their struggle on the ground, defendant kicked an interior door,

which fell on top of her, and that defendant threw a metal table at her. In fact, the evidence

indicated Ortiz was taken by ambulance to the emergency room and treated for the injuries she

sustained. In contrast, defendant testified that Ortiz physically struck him and threw an ashtray

and candle at him. Defendant, however, did not produce any evidence that the ashtray or candle

struck him or that he was injured as a result of Ortiz's conduct. The trial court, in finding

defendant guilty of domestic battery and unlawful restraint, found Ortiz more credible than



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defendant. See People v. McGrath, 193 Ill. App. 3d 12, 28 (1989) (determinations involving the

credibility of the witnesses, the weight their testimony should be given, and the reasonable

inferences to be drawn from the evidence presented are the responsibilities of the circuit court at

a bench trial). Thus, according to Ortiz's testimony, the injuries defendant inflicted upon Ortiz

caused her greater harm than defendant's act of "restraining" Ortiz on the floor.

¶ 51   As the defense of necessity was unavailable to defendant as a matter of law, it therefore

follows that defendant was not prejudiced by defense counsel's failure to assert the defense. See

Kratovil, 351 Ill. App. 3d at 1034. Consequently, there is no evidentiary support for this claim of

ineffective assistance of counsel. See People v. Davis, 16 Ill. App. 3d 846, 849 (1974) (finding

no ineffective assistance of counsel where no evidence of the defense of necessity existed).

¶ 52   Defendant was also not prejudiced by trial counsel's failure to amend the answer to

include the affirmative defense of self-defense. The Illinois self-defense statute states that "[a]

person is justified in the use of force against another when and to the extent that he reasonably

believes that such conduct is necessary to defend himself or another against such other's

imminent use of unlawful force." 720 ILCS 5/7-1(a) (West 2010). In order for a claim of self-

defense to be proper, "the defendant must establish some evidence of each of the following

elements: (1) force is threatened against a person; (2) the person threatened is not the aggressor;

(3) the danger of harm was imminent; (4) the threatened force was unlawful; (5) he actually and

subjectively believed a danger existed which required the use of the force applied; and (6) his

beliefs were objectively reasonable." People v. Jeffries, 164 Ill. 2d 104, 127-28 (1995); People

v. Holman, 2014 IL App (3d) 120905, ¶ 57. If the State negates any of these elements, the

defendant's claim of self-defense must be rejected. People v. Lee, 213 Ill. 2d 218, 225 (2004).

Further, if the defendant responds to a confrontation with such excessive force that he is no



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longer acting in self-defense but in retaliation, the excessive use of force renders the defendant

the aggressor, even if the other person involved actually commenced the confrontation. People

v. Belpedio, 212 Ill. App. 3d 155, 161 (1991).

¶ 53   In this case, Ortiz's testimony established that she was not the initial aggressor.

Defendant, who had been instructed by police officers to leave the area, instead hid outside

Ortiz's door, pushed his way inside and in doing so knocked her to the ground. When Ortiz

attempted to stand up, defendant pushed her down again and then dragged her into the next room

by her ankles. It was then that defendant began slapping Ortiz in the head and punching her with

a closed fist. Ortiz's testimony, which was corroborated by photographs of Ortiz and of the

rooms where the incident occurred, established that defendant was the aggressor and Ortiz was

the victim. See People v. Grayson, 321 Ill. App. 3d 397, 402 (2001).

¶ 54   Furthermore, even if Ortiz was the initial aggressor, the right of self-defense does not

permit one to pursue and inflict injury upon even an initial aggressor after the aggressor

abandons the quarrel. Holman, 2014 IL App (3d) 120905, ¶ 58; Belpedio, 212 Ill. App. 3d at

161. "If one responds to a confrontation with such excessive force that one is no longer acting in

self-defense but in retaliation, the excessive use of force renders one the protagonist; a

nonaggressor has a duty not to become the aggressor." Belpedio, 212 Ill. App. 3d at 161.

¶ 55   Here, the evidence demonstrated that from the moment Ortiz lost consciousness, she was

lying on the ground until defendant left the building. Ortiz's testimony established: that

defendant was on top of her with his hands over her mouth; that when she attempted to crawl

away, defendant grabbed her; and that defendant threw a metal table on top of her. Throughout

the altercation Ortiz consistently demanded that defendant leave the building, but instead he

continued to attack her. There was absolutely no evidence that defendant sustained any injuries



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during the incident. Thus, the record establishes that Ortiz had abandoned the quarrel after being

knocked unconscious and that defendant, in retaliation, used excessive force. As the evidence

fails to support the affirmative defense of self-defense, defendant was not prejudiced at trial

where his counsel failed to assert the affirmative defense. See People v. Wells, 346 Ill. App. 3d

1065, 1074 (2004) (defendant not prejudiced by trial counsel's failure to fully develop a self-

defense theory where the evidence did not support such a defense).

¶ 56     In sum, defendant has failed to establish that there is a reasonable probability that the

result of the trial would have been different had he been allowed to assert the affirmative

defenses of necessity and self-defense. Accordingly, his claim of ineffective assistance of

counsel fails.

¶ 57                                    Abuse of Discretion

¶ 58     Defendant argues the trial court erred when it "completely barred" him from raising any

affirmative defenses due to his attorney's failure to include those defenses in his answer to

discovery. At oral argument before this court defendant clarified his position, asserting that the

trial court's error was its failure to consider whether he was legally justified in his actions against

Ortiz.

¶ 59     The Illinois Supreme Court Rules require a defendant to disclose to the State any

defenses that he intends to present at trial. Specifically, Illinois Supreme Court Rule 413(d) (eff.

July 1, 1982) provides in pertinent part that, "[s]ubject to constitutional limitations and within a

reasonable time after the filing of a written motion by the State, defense counsel shall inform the

State of any defenses which he intends to make at a hearing or trial." The Illinois Supreme Court

Rules also provide the trial court with the authority to impose sanctions against a defendant who

fails to disclose his affirmative defenses. Specifically, Illinois Supreme Court Rule 415(g)(i)



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(eff. Oct. 1, 1971) permits the court to impose sanctions for violations of the discovery rules.

According to that rule, if at any time during the proceedings it is brought to the attention of the

court that a party has failed to comply with an applicable discovery rule, "the court may order

such party to permit the discovery of material and information not previously disclosed, grant a

continuance, exclude such evidence, or enter such other order as it deems just under the

circumstances." Id.

¶ 60   "A trial court's decision as to the appropriate sanction for a discovery violation is subject

to review for abuse of discretion." People v. Ramsey, 239 Ill. 2d 342, 429 (2010). "An abuse of

discretion exists only where the trial court's decision is arbitrary, fanciful, or unreasonable, such

that no reasonable person would take the view adopted by the trial court." Id. The exclusion of

undisclosed evidence or defenses does not necessarily constitute an abuse of the trial court's

discretion. See People v. Wright, 2013 IL App (1st) 103232, ¶ 68 (citing cases upholding

exclusion as a sanction). The defendant has the burden of demonstrating prejudice as a result of

the imposition of an improper sanction. Ramsey, 239 Ill. 2d at 428; see People v. Brown, 89 Ill.

App. 3d 852, 857 (1980).

¶ 61   As previously discussed, defendant was not prejudiced by trial counsel's failure to assert

his affirmative defenses. See Brown, 89 Ill. App. 3d at 857 (a trial court's discretion "will only

be reviewed upon defendant's showing of prejudice"). In so concluding, we stated defendant

failed to set forth even "some" evidence to establish such defenses. See 720 ILCS 5/3-2 (West

2010); Jeffries, 164 Ill. 2d at 127. Accordingly, defendant cannot demonstrate prejudice where

no evidence was presented to support the affirmative defenses the trial court ultimately excluded.

Because defendant has failed to demonstrate he was prejudiced, this claim on appeal fails.

¶ 62   Moreover, defendant's assertion that the trial court did not consider the evidence that he



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was legally justified in his actions is belied by the fact the trial court is presumed to know the

law and follow it accordingly. See People v. Thorne, 352 Ill. App. 3d 1062, 1078 (2004). In

addition, the defense was not prohibited from presenting any evidence as a result of the trial

court's denial of the motion. In fact, in a bench trial it is presumed that the trial judge has

considered the evidence in reaching his verdict. People v. Gilbert, 68 Ill. 2d 252, 258 (1977).

While this presumption may be rebutted where the record affirmatively demonstrates the

contrary (id. at 258-59), we are of the opinion that the record before us does not contain such a

showing.

¶ 63   Defendant relies on the cases of People v. Houser, 305 Ill. App. 3d 384 (1999), People v.

Gracey, 104 Ill. App. 3d 133 (1982), and People v. Foster, 271 Ill. App. 3d 562 (1995); however,

these cases are factually distinguishable from the case at bar. In Houser, defense counsel sought

to add a necessity defense on the morning of jury selection. Houser, 305 Ill. App. 3d at 388.

The reviewing court noted that the defendant had already asserted the defense of compulsion,

which were "closely linked, sharing the same factual basis" and, thus, held under the

circumstances unfair prejudice to the State was "not a foregone conclusion." Id. at 392.

¶ 64   In Gracey, at the conclusion of the State's case-in-chief, the trial court granted the State's

motion to preclude the defense from raising any affirmative defenses at trial. Gracey, 104 Ill.

App. 3d at 135. The court, however, allowed the defendant to present evidence on the issues of

intoxication and self-defense, but refused to instruct the jury concerning those issues. Id. The

reviewing court found no fault with the actions taken by the trial court, but found defendant was

substantially prejudiced "because the jury was not instructed as to the legal significance of any

findings it might make based on this evidence." Id. at 137.

¶ 65   In Foster, on the morning of a jury trial, the State objected to any affirmative defenses



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that the defendant might raise due to his failure to comply with a prior discovery order. Foster,

271 Ill. App. 3d at 564. The trial court barred the defendant from presenting a defense and, as a

result, the defendant presented no evidence. Id. at 565-66. On appeal, the Foster court stated the

trial court's sanction "literally stopped him from presenting any defense for the jury's

consideration" and found the sanction to be too harsh warranting a new trial. Id. at 567, 569-70.

In addition, the Foster court found defense counsel's "chronic failure to comply with discovery

orders" constituted a "willful violation" of Rule 415(g) and that the trial court should have

considered these facts and sanctioned defense counsel personally instead of barring the

defendant's defense. Id. at 567-68.

¶ 66    Houser, Gracey, and Foster all involved jury trials where the issue of whether defendant

could assert affirmative defenses occurred on either the day of trial or at the close of the State's

case. See Houser, 305 Ill. App. 3d at 391; Gracey, 104 Ill. App. 3d at 137; Foster, 271 Ill. App.

3d at 564. Additionally, in Gracey, the defendant was prejudiced because the jury was not

apprised of the legal significance of their findings. Gracey, 104 Ill. App. 3d at 137. Because the

evidence here was heard and considered by the trial judge, and not a jury, there was no concern

that the legal significance of the evidence presented would be missed. See Thorne, 352 Ill. App.

3d at 1078 (the trial court is presumed to know the law and follow it accordingly). Thus, due to

defendant's decision to proceed with a bench trial, the trial judge's ruling did not implicate jury

instructions or necessarily impact the legal significance of defendant's testimony. See cf.

Gracey, 104 Ill. App. 3d at 137. Furthermore, the court in Foster found defense counsel's

discovery violation was willful. Foster, 271 Ill. App. 3d at 568-69. There was no such finding

here.

¶ 67    While defendant argues that Houser, Gracey, and Foster all stand for the general



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principle that, before imposing a sanction the trial court has a duty to consider other, less

restrictive alternatives, the record here discloses the trial court did consider other such

alternatives. During arguments on this motion, defense counsel asserted that instead of

prohibiting the defenses, the State be allowed to put on evidence in rebuttal. Defense counsel,

however, conceded that "the only other witness that would serve to rebut the defense" was Ortiz

who had already testified. Having already heard all of the evidence in the State's and the

defense's cases-in-chief, the trial court was well aware that the only witnesses to the altercation

were defendant and Ortiz. With defense counsel's suggestion in mind, the trial court, in its

discretion, denied defendant's motion. In sum, we are unable to find error where defendant failed

to demonstrate he was prejudiced. Accordingly, the trial court did not abuse its discretion in

denying defendant's motion to amend the answer as a sanction for the discovery violation.

¶ 68                                   Fees and Fines

¶ 69   Defendant argues his preliminary hearing fee (55 ILCS 5/4-2002.1(a) (West 2010))

should be vacated and the Violent Crime Victims Assistance Fund fine (725 ILCS 240/10(b)

(West 2010)) should be reduced from $100 to $28. The State agrees. The propriety of the

imposition of fines and fees by the trial court is a question of law, which we review de novo.

People v. Anthony, 2011 IL App (1st) 091528-B, ¶ 19. It is undisputed that defendant was

indicted and, therefore, did not receive a probable cause hearing. See People v. Smith, 236 Ill. 2d

162, 174 (2010) (preliminary hearing fee was improperly charged where probable cause hearing

was never conducted). Additionally, the statute authorizing a $100 fine for the Violent Crime

Victims Assistance Fund was not in effect when defendant committed the offense. See 725

ILCS 240/10(b) (West 2012) (authorizing a $100 fine effective July 16, 2012, for offenses

committed on or after July 1, 2012). Accordingly, we vacate the preliminary hearing fee and



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order the Violent Crime Victims Assistance Fund fee be reduced to $28. See People v. Jamison,

229 Ill. 2d 184, 193 (2008).

¶ 70                                 CONCLUSION

¶ 71   For all of the aforementioned reasons, we affirm the judgment of the circuit court of

Cook County and order the fines and fees to be modified in accordance with this order.

¶ 72   Affirmed as modified.




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