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People v. Fochs





APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH R. SCHWABA, Judge, presiding.


• 1, 2 Defendant, Dale Fochs, was charged by complaint with the offense of battery. (Ill. Rev. Stat. 1973, ch. 38, par. 12-3(a).) Following a jury trial, defendant was convicted as charged and was sentenced to one-year probation. It is from this conviction and sentence that defendant brings this appeal and presents the following issues for our review.

(1) Whether the amended complaint was sufficient to inform defendant of the time the offense occurred so as to allow him to prepare an adequate defense to the charge;

(2) Whether defendant was proven guilty beyond a reasonable doubt;

(3) Whether the admission into evidence of the black jacket worn by defendant at the time of his arrest unfairly prejudiced defendant;

(4) Whether a photo was unduly suggestive and therefore improperly admitted into evidence; and

(5) Whether certain remarks made by the prosecutor during closing argument denied defendant his right to a fair trial.

After discovering a hiatus in the record of the trial proceedings, running from just prior to the voir dire to the closing arguments, defendant prepared and then submitted a bystander's report of proceedings to the State and to the trial judge, who subsequently certified the report as true and correct. We believe that the bystander's report, prepared by defendant under Supreme Court Rule 323(c) (Ill. Rev. Stat. 1973, ch. 110A, par. 323(c)), is incomplete on its face. A trial court should properly refuse to certify a proposed report of proceedings which patently reveals the omission of material portions of the proceedings. (Feldman v. Munizzo, 16 Ill. App.2d 58, 147 N.E.2d 427.) However, the responsibility for the proper preservation of the record of the trial proceedings rests upon the appellant (People v. Smith, 42 Ill.2d 479, 248 N.E.2d 68; People v. Turner, 35 Ill. App.3d 550, 342 N.E.2d 158), and the remedy of Rule 323(c) prevents a defendant from claiming prejudice because of failure to record the trial proceedings (People v. Wilson, 32 Ill. App.3d 57, 335 N.E.2d 499). Therefore, where the record on appeal is incomplete, a reviewing court (1) will indulge in every reasonable presumption favorable to the judgment, order or ruling appealed from, including the presumption that the trial court ruled or acted correctly, and (2) will resolve any doubt arising from the incompleteness of the record against the appellant. (People v. Benford, 31 Ill. App.3d 892, 335 N.E.2d 106.) With these principles firmly in mind, our statement of facts represents a distillation of the entire record on appeal. This includes, in addition to the bystander's report of proceedings, a verbatim transcript of the hearing on defendant's motion to suppress "in-court identification of the defendant" and the closing arguments of counsel.

A 9-year-old girl, the complaining witness, testified that, on March 27, 1973, she left school at 3 or 3:05 p.m. The girl lived about 3 1/2 blocks from the school and stated that it usually took her about 20 minutes "to get home." After she was home for approximately one minute, she looked up from tying her shoe and saw a man at the door. She described the man as having brown hair with a brown stain on his front teeth, as if they were dirty. He was dressed in a hooded jacket or a sweatshirt. The girl thought he was about 19 years old.

The man asked if anyone was at home and then asked to use the telephone and the bathroom. After pointing out the bathroom, the girl was picked up by the man and thrown down onto her mother's bed. She asked him what he was going to do, to which he replied that "it was going to feel good." The youngster began to scream, but her assailant covered her mouth. At this time the phone began to ring and a dog began to bark. The man then fled. Sometime later, she saw her attacker at Ridgeville Park near her Evanston home. The girl told her mother that she saw her attacker at the park and her mother contacted the police. Following an investigation of her report, the police brought some photographs for her to view from which she identified the defendant. Defendant was arrested on April 26, 1973.

Defendant introduced the testimony of several of his co-workers who placed him at Ridgeville Park, a few blocks away from the girl's home, from 3 p.m. until about 3:20 p.m. on the day in question. He then left in a truck and returned approximately 20 minutes later, stating that he had been at a friend's apartment, a block away from the scene of the attack. Defendant's witnesses did not recall seeing him wear a hooded jacket or sweatshirt that day.

Defendant's initial argument on appeal is that the State failed to adequately inform him prior to the trial, by way of a bill of particulars, as to the "exact time of the occurrence which was essential for Defendant to prepare his defense." Defendant contends that such failure adversely affected a major element of his defense because he had witnesses to account for all but 15 minutes of his time that afternoon. He further asserts that the complaining witness said the incident took place "near 3:05 p.m. and Defendant had three alibi witnesses for this time."

• 3 This court believes that defendant has failed to support his claim from the record or even to point out that part of the record upon which he relies to support this argument. Though the statement of facts in defendant's brief asserts that the trial court ordered that a bill of particulars be filed and that the State never complied, this court has searched the record on appeal and can find nothing to indicate that such a bill was not in fact filed. The record is bare of any objection by defendant to the State's alleged failure and is devoid of any request for a sanction by the trial judge. We reiterate that "[r]esponsibility for preservation of a record that properly reflects the proceedings in the trial court rests on the appealing part." (People v. Benford, 31 Ill. App.3d 892, 894, 335 N.E.2d 106, 108.) The record does contain an amended complaint filed prior to the trial date and subsequent to the request for a bill of particulars. This complaint lists the time of the offense as approximately 3:25 p.m. The complaining witness testified that she left school at 3 or 3:05 p.m., that it usually took her about 20 minutes to arrive home, and that she was home for about one minute before seeing defendant. Therefore, even if this court were to accept defendant's contention that no bill of particulars was filed, defendant's preparation of a defense was in no way prejudiced because precise information was supplied prior to trial in the amended complaint.

Defendant next contends that he was not proven guilty beyond a reasonable doubt. Defendant maintains that he introduced evidence at trial showing that he was at Ridgeville Park District from 3 to 3:20 p.m. on the day in question and was wearing a white "T-shirt" and no jacket, that the complaining witness said her attacker wore a gray-hooded sweatshirt and sunglasses, and finally that the incident occurred at 3 p.m., thereby "making it impossible for Defendant to be there." According to the record on appeal, and as noted in defendant's statement of facts, the complaining witness did not leave school until 3 or 3:05 p.m. and then walked 3 1/2 blocks home. She testified that this usually took her about 20 minutes. It is not unreasonable to believe that it took an 8-year old child that length of time to ...

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