                         ILLINOIS OFFICIAL REPORTS
                                       Appellate Court




                         People v. Green, 2011 IL App (2d) 091123




Appellate Court          THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                  ROCHELLE GREEN, Defendant-Appellant.



District & No.           Second District
                         Docket No. 2-09-1123


Filed                    September 22, 2011


Held                     Defendant was properly convicted of domestic battery for making
(Note: This syllabus     physical contact of an insulting or provoking nature with her son,
constitutes no part of   notwithstanding her contentions that she was merely exercising her right
the opinion of the       to discipline her son for misbehaving and that no physical harm resulted,
court but has been       since she struck him multiple times with a snow brush and her conduct
prepared by the          exceeded the bounds of reasonableness, and, further, the appellate court
Reporter of Decisions    refused to establish a per se rule that physical discipline is reasonable as
for the convenience of   long as a child suffers no physical harm, and the order that defendant
the reader.)             make a contribution to “A Safe Place” was upheld over defendant’s
                         contention that the facility had nothing to do with a “local anti-crime
                         program” within the meaning of the Unified Code of Corrections.


Decision Under           Appeal from the Circuit Court of Lake County, No. 08-CM-6278; the
Review                   Hon. Luis A. Berrones, Judge, presiding.
Judgment                   Affirmed.


Counsel on                 Thomas A. Lilien and Kathleen Weck, both of State Appellate Defender’s
Appeal                     Office, of Elgin, for appellant.

                           Michael J. Waller, State’s Attorney, of Waukegan (Lawrence M. Bauer,
                           of State’s Attorneys Appellate Prosecutor’s Office, of counsel), and
                           Christopher M. Kanis, of Savoy, for the People.


Panel                      JUSTICE BURKE delivered the judgment of the court, with opinion.
                           Justices Zenoff and Schostok concurred in the judgment and opinion.




                                              OPINION

¶1          Following a bench trial, defendant, Rochelle Green, was convicted of domestic battery
        for making physical contact of an insulting or provoking nature with her son, Rafayel
        Mahomes, pursuant to section 12-3.2(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS
        5/12-3.2(a)(2) (West 2010)). The trial court sentenced defendant to one year of conditional
        discharge and ordered her to attend a parenting class, perform public service, and contribute
        $100 to “A Safe Place.” Defendant raises two arguments on appeal: (1) because her son
        sustained no bodily injuries, her actions as a parent constituted a reasonable use of corporal
        punishment, requiring reversal of her conviction; and (2) the trial court exceeded its statutory
        authority in ordering defendant to contribute $100 to “A Safe Place.” We affirm.

¶2                                             FACTS
¶3          On March 14, 2008, Christine Schmidt witnessed defendant and her son “fighting” inside
        a car, which was parked in the parking lot of St. John’s School in Libertyville, Illinois.
        Schmidt testified that defendant first was seated in the driver’s seat and was reaching back
        to her son in the backseat. Although the doors to defendant’s car were closed, Schmidt could
        see “arms *** kind of moving around” inside the car. Schmidt then saw defendant outside
        the car, holding a snow brush while she stood over Rafayel. The back of Rafayel’s head was
        inside the back passenger doorway of the car, but his body was on the ground, outside the
        car, in a supine position. The snow brush was about 2½ feet long with bristles on one end
        and a scraper on the other. Schmidt saw defendant beating the child with the snow brush




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     while defendant stood over him.1 Schmidt estimated that defendant struck Rafayel on the
     upper part of his body around eight times. During the altercation, the school secretary,
     Christine Grasenick, attempted to stop defendant. Schmidt heard defendant say that Rafayel
     “was being disrespectful” and that he had tried to hit or kick out the car windows.
¶4        Schmidt called 911 at Grasenick’s request. As defendant drove off, Schmidt saw the boy
     turn around in the car, place “his hands out in the back window” and “flex his fingers,” as
     though he was saying “help me.” Schmidt believed that Rafayel looked sad.
¶5        During cross-examination, Schmidt stated that, when she first saw defendant and Rafayel
     fighting in the car, Rafayel was “hitting the windows in the car,” his arms were moving, and
     defendant and Rafayel were “talking or yelling.” Rafayel was wearing a down jacket.
¶6        Grasenick testified that, while looking out a second-story window of Saint John’s School,
     she saw a woman inside a car, swinging an object at a backseat passenger. After witnessing
     three swats, Grasenick rushed down to the parking lot to find defendant standing over
     Rafayel. Grasenick yelled to defendant to “stop that!” Defendant responded that Rafayel
     “was being disrespectful” and that he had tried to hit or kick out the car windows. Defendant
     continued to swing the snow brush 10 to 15 more times, striking Rafayel from his legs to his
     upper torso, before Grasenick told Schmidt to call the police. Grasenick saw defendant strike
     Rafayel “all over from the legs to the upper body” with multiple “hard blows.” After
     Grasenick told Schmidt to call 911, defendant put Rafayel in the backseat of the car and
     drove off. As defendant drove away, Grasenick saw Rafayel “in the back window with his
     arms stretched out saying [‘]help.[’] ”
¶7        After the report to 911, Libertyville police officer James Daniel stopped defendant’s car.
     Defendant told Daniel that she never struck Rafayel but that she had shaken the snow brush
     at him while he was in the car, because he was misbehaving. Rafayel told Daniel that
     defendant “got mad and hit him” on his arms and legs with the snow brush. He also told
     Daniel that he felt no pain. However, at the police station, Rafayel reported that the back of
     his calf hurt from being hit by the snow brush. After an inspection, Daniel could find no
     visible injuries to Rafayel.
¶8        Rafayel was 10 years old at the time of trial. Rafayel testified that he was upset that he
     could not go to a school dance and he was so upset that he slammed the car door. Rafayel
     acknowledged that he told Daniel that his mother struck him, but he stated that it was not true
     and that he said it because he was mad at her. He also denied that his mother yelled at him
     or hit him with a snow brush.
¶9        Defendant had been charged by information with two counts of domestic battery. Count
     I alleged that defendant knowingly caused bodily harm to Rafayel (720 ILCS 5/12-3.2(a)(1)
     (West 2010)). Count II alleged that defendant made physical contact of an insulting or
     provoking nature when she struck her son about the body (720 ILCS 5/12-3.2(a)(2) (West
     2010)). The trial court found that defendant did not cause bodily harm to Rafayel, and the
     court dismissed count I. However, as to count II, the court found defendant guilty. The court

             1
              The record does not indicate whether defendant struck her son with the brush side or the
     scraper side of the snow brush.

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       found that defendant’s actions constituted discipline, but the court had to determine whether
       defendant had the constitutional right to discipline her child in the manner that she did.
       Relying on People v. Roberts, 351 Ill. App. 3d 684 (2004), the court observed that parents
       have a common-law right to discipline their children, “even with the use of corporal
       punishment,” but that the corporal punishment must be reasonable given the circumstances.
       The court noted that the basis for the guilty finding was not that any corporal punishment is
       insulting by its very nature, but that striking the child “8 to 16” times with the snow brush
       was not reasonable under the circumstances.
¶ 10       Following the denial of defendant’s posttrial motions, defendant timely appeals.

¶ 11                                         ANALYSIS
¶ 12                    Physical Contact of an Insulting or Provoking Nature
¶ 13       We begin with defendant’s contention that the trial court erred by finding her guilty of
       domestic battery for making physical contact of an insulting or provoking nature with her
       son. Defendant asserts that the punishment she administered was reasonable and thus legally
       justified, as she had a parental right to discipline her son and Rafayel suffered no physical
       harm. The governing statute on this point is section 12-3.2(a)(2) of the Code, which provides
       that a person commits domestic battery if he or she “intentionally or knowingly without legal
       justification by any means *** [m]akes physical contact of an insulting or provoking nature
       with any family or household member.” 720 ILCS 5/12-3.2(a)(2) (West 2010).
¶ 14       A parent’s right to corporally punish his or her child is derived from the right to privacy,
       which is viewed as implicit in the United States Constitution. This right encompasses the
       right to care for, control, and discipline one’s own children. The “ ‘[d]iscipline’ ” allowed
       has been interpreted by courts “to extend to reasonable corporal punishment.” (Emphasis in
       original.) In re F.W., 261 Ill. App. 3d 894, 898 (1994). While parents have a general right to
       privacy in the manner in which they raise their children, this right must be balanced against
       the State’s legitimate interest in preventing and deterring the mistreatment of children. In re
       B.H., 389 Ill. App. 3d 316, 320 (2009); People v. Sambo, 197 Ill. App. 3d 574, 587 (1990)
       (State has legitimate interest in the welfare of juveniles and “protecting [them] from
       ‘unreasonable’ parental discipline”). A parent who inflicts corporal punishment “exceeding
       the boundaries of reasonableness” may, depending on the circumstances, be subject to
       prosecution for cruelty to children. F.W., 261 Ill. App. 3d at 898; see People v. Ball, 58 Ill.
       2d 36, 39 (1974); Roberts, 351 Ill. App. 3d at 690.
¶ 15       Initially, the parties disagree as to our standard of review. Defendant asserts that the
       questions of whether she had the parental right to use corporal punishment on her
       misbehaving child and whether such punishment could be characterized as “unreasonable”
       when her son sustained no injury at all are not factual issues but legal questions, which are
       reviewed de novo. Defendant further maintains that appellate review is de novo when, as in
       this case, the facts are undisputed and the legal question is whether the uncontested facts
       were sufficient to prove the elements of the offense. The State argues that whether the trial
       court erred in finding defendant’s method of discipline unreasonable is a factual question,
       which we review under the manifest-weight-of-the-evidence standard. We disagree with both

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       arguments.
¶ 16        Even though the parental right to discipline is not a statutory affirmative defense, the
       common-law rule that parents may take “ ‘reasonable steps to discipline their children when
       necessary’ ” is, like self-defense, a legal justification for an otherwise criminal act. See
       Roberts, 351 Ill. App. 3d at 688-89 (quoting F.W., 261 Ill. App. 3d at 901, and citing
       Restatement (Second) of Torts § 147(1) (1965)). In order to negate such a legal justification,
       the State must prove the defendant guilty beyond a reasonable doubt as to the affirmative
       defense together with all the other elements of the offense. See People v. Lee, 213 Ill. 2d 218,
       225 (2004) (discussing the State’s burden in the context of an analogous self-defense claim);
       720 ILCS 5/7-14 (West 2010); 720 ILCS 5/3-2(b) (West 2010) (where affirmative defense
       is raised, “the State must sustain the burden of proving the defendant guilty beyond a
       reasonable doubt as to [the affirmative defense] together with all the other elements of the
       offense”). To prove defendant guilty of the domestic battery of her son, the State had to
       prove beyond a reasonable doubt that defendant intentionally or knowingly without legal
       justification by any means made physical contact of an insulting or provoking nature with
       her son. See 720 ILCS 5/12-3.2(a)(2) (West 2010). In addition, to sustain a conviction of
       domestic battery where a claim of parental right has been asserted, the State must also prove
       beyond a reasonable doubt that the discipline used exceeded the standards of reasonableness.
       See Restatement (Second) of Torts § 147(1) (1965).
¶ 17        We reject defendant’s contention that the issue presents a question of law, subject to de
       novo review. In support of this contention, defendant cites to People v. Smith, 191 Ill. 2d 408,
       411 (2000), where our supreme court held that, where the facts of the case are not in dispute,
       the defendant’s guilt is a question of law, which should be reviewed de novo. Unlike in the
       present case, in Smith the court essentially was asked to construe the meaning of a statute as
       it applied to the undisputed facts of that case. Moreover, unlike in Smith, here the issue does
       not involve interpretation of the law but, rather, application of the law to the facts.
¶ 18        The State relies on this court’s opinion in People v. Davis, 88 Ill. App. 3d 728, 732
       (1980), in which we reviewed a school bus driver’s claim of reasonable discipline under the
       manifest-weight-of-the-evidence standard. However, we were not asked to resolve the
       question of which standard of review applied to the case. To the extent that we applied the
       manifest-weight standard of review in Davis, we depart from that position and hold that the
       question of whether a parent’s use of corporal punishment was reasonable and thus legally
       justified is a question of fact and subject to the beyond-a-reasonable-doubt standard.
¶ 19        When there is a challenge to the evidence, we look at all the evidence in a light most
       favorable to the State and ask if any rational trier of fact could find the elements of the
       charged offense to be proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
       319 (1979); People v. Minniweather, 301 Ill. App. 3d 574, 577 (1998). “This familiar
       standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in
       the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to
       ultimate facts.” Jackson, 443 U.S. at 319. We “impinge[ ] upon ‘jury’ discretion only to the
       extent necessary to guarantee the fundamental protection of due process of law.” Jackson,
       443 U.S. at 319. This standard of review applies regardless of whether the evidence is direct
       or circumstantial, and regardless of whether the defendant received a bench or jury trial.

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       People v. Cooper, 194 Ill. 2d 419, 431 (2000).
¶ 20        Defendant cites Fletcher v. People, 52 Ill. 395 (1869), for the proposition that the legal
       system will not punish a parent for disciplining his or her child as long as the parent does not
       commit wanton and needless cruelty upon the child. Contrary to defendant’s assertion,
       parental rights of discipline are limited by a standard of reasonableness, not malice. Ball, 58
       Ill. 2d at 38-39. As far back as 1869, the supreme court in Fletcher recognized that parental
       authority over children must be exercised within “the bounds of reason and humanity.”
       Fletcher, 52 Ill. at 397.
¶ 21        Defendant argues that courts have uniformly found that corporal punishment exceeds the
       bounds of reasonableness only when the child sustains some type of physical injury.
       Defendant cites F.W., 261 Ill. App. 3d at 903 (injuries from parent’s use of two-foot-long
       board with protruding metal brackets was unreasonable use of discipline); Sambo, 197 Ill.
       App. 3d at 587-88 (parent’s conduct of kicking child, hitting her with hands, a plastic
       baseball bat, and a belt, throwing liquor in her face, and pulling her hair resulting in bruises
       could not be legally justified); and People v. Tomlianovich, 161 Ill. App. 3d 241, 242 (1987)
       (paddling was unreasonable discipline when it severely bruised child’s buttocks).
¶ 22        Defendant notes that in other scenarios courts have found that the punishment imposed
       was reasonable even when the child sustained physical injury. See In re J.P., 294 Ill. App.
       3d 991, 1004-06 (1998) (mother’s use of wooden spoon to spank child not excessive corporal
       punishment, although it caused bruising on at least one occasion); People v. DeCaro, 17 Ill.
       App. 3d 553, 556 (1974) (punishment not excessive when teacher used 12-inch ruler to spank
       two students on buttocks and back of legs, resulting in bruises). Defendant further observes
       that no case has held that a parent exercised unreasonable discipline when the child sustained
       no injury at all, as was the case here.
¶ 23        While the cases relied on by defendant are instructive, none of them dealt with the
       standard of exceeding the bounds of reasonableness in the context of the offense of domestic
       battery by making physical contact of an insulting or provoking nature. 720 ILCS 5/12-
       3.2(a)(2) (West 2010). The domestic battery statute’s plain language defines the offense in
       terms of contact that insults or provokes the victim, and the contact does not need to cause
       physical injury. People v. DeRosario, 397 Ill. App. 3d 332, 334 (2009).
¶ 24        Moreover, the degree of injury inflicted upon a child is not the exclusive or determinative
       factor in evaluating whether the discipline exceeded the bounds of reasonableness. See F.W.,
       261 Ill. App. 3d at 903. Other factors to consider include the likelihood of future punishment
       that might be more injurious, the psychological effects of the discipline on the child, and
       whether the parent was calmly attempting to discipline the child or whether the parent was
       lashing out in anger. F.W., 261 Ill. App. 3d at 903. Additionally, when corporal punishment
       is administered there is no assurance that a child will not suffer psychological effects or that
       the discipline will be inflicted moderately or responsibly. In the heat of anger, some parents
       are likely to exceed the bounds of reasonableness despite the lack of physical harm.
       However, both the reasonableness of, and the necessity for, the punishment is to be
       determined by the finder of fact, under the circumstances of each case. See People v. Ball,
       15 Ill. App. 3d 143, 149 (1973) (Moran, J., dissenting) (citing People v. Curtiss, 300 P. 801,


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       803 (Cal. App. Dep’t Super. Ct. 1931)), rev’d, 58 Ill. 2d 36 (1974).
¶ 25       Here, the trial court, sitting as the trier of fact, considered the following evidence in
       finding that defendant exercised unreasonable discipline and was guilty of domestic battery:
       (1) defendant struck her son with multiple hard blows about his body, striking at his torso
       and legs, over the course of several minutes, with an object approximately 2½ feet long; (2)
       defendant stood over her son, striking downwards at him while he lay face up in a supine
       position, his head on the threshold of the car and his legs on the school parking lot; (3)
       during the attack, Rafayel had his arms up and was crying and “trying to defend himself”;
       (4) a witness went to the parking lot and pleaded with defendant to stop striking the boy; (5)
       defendant continued striking her son despite the pleas; (6) after one witness called the police,
       defendant drove away; and (7) as she drove off, Rafayel stuck his hands out of the vehicle,
       looked at the witnesses, and flexed his fingers as if he were asking for help. Although
       Rafayel did not suffer any physical injuries, the evidence was sufficient to find that
       defendant’s conduct exceeded the bounds of reasonableness and that she was guilty of
       domestic battery by making physical contact of an insulting or provoking nature.
¶ 26       We decline to hold that, as a matter of law, when no bodily harm results from the parent’s
       conduct, he or she cannot be found guilty of exceeding the bounds of reasonableness under
       the domestic battery statute as written. It is the province of the legislature to create a parental
       discipline exception to the offense of domestic battery by insulting or provoking physical
       contact.2 We will not establish a per se rule that it is reasonable for parents to physically
       discipline their children in any conceivable manner as long as the children suffer no physical
       harm. Judges must “take care not to create a legal standard from our personal notions of how
       best to discipline a child.” J.P., 294 Ill. App. 3d at 1005. That is best left to the trier of fact
       under the unique, factual circumstances of the case.

¶ 27                           Order to Contribute to “A Safe Place”
¶ 28       We next address defendant’s contention, which she raises for the first time on appeal, that
       the trial court exceeded its authority by ordering her to contribute $100 to “A Safe Place.”
       Defendant attached to the appendix of her appellate brief information from the Internet
       “home page” for “A Safe Place,” and she argues, among other things, that the facility is a
       women’s shelter that has nothing to do with a “local anti-crime program” within the meaning
       of sections 5-6-3(b)(12) and (b)(13) of the Unified Code of Corrections. 730 ILCS 5/5-6-
       3(b)(12), (b)(13) (West 2010). Defendant acknowledges that the contribution to “A Safe
       Place” was not challenged in the trial court, but she asserts that, because the trial court
       exceeded its statutory authority in ordering it, the order was void, and thus she did not forfeit
       the issue.
¶ 29       The State filed a motion to strike the Internet content about “A Safe Place” from
       defendant’s appendix for improperly supplementing the record with information dehors the


               2
               In the order-of-protection statute, the legislature has created an exception to the definition
       of “abuse” for “reasonable direction of a minor child by a parent or person in loco parentis.” 725
       ILCS 5/112A-3(1) (West 2010).

                                                    -7-
       record. We granted the motion and ordered that this information be stricken from the record.
       Any argument pertaining to material stricken from the record must be disregarded. See, e.g.,
       Stokes v. Colonial Penn Insurance Co., 313 Ill. App. 3d 202, 204 (2000). Defendant does not
       cite to any other evidence to substantiate any of her arguments, including the claim that “A
       Safe Place” does not qualify as a “local anti-crime program” within the meaning of the
       Unified Code of Corrections. Without any facts in the record to support defendant’s
       arguments, we must assume that the trial court properly ordered the contribution. See, e.g.,
       People v. Ortiz, 313 Ill. App. 3d 896, 900 (2000).

¶ 30                                   CONCLUSION
¶ 31      For the preceding reasons, we affirm the judgment of the circuit court of Lake County.

¶ 32      Affirmed.




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