APPEAL from the Circuit Court of Du Page County; the Hon.
GEORGE W. UNVERZAGT, Judge, presiding.
MR. JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendant, Robert W. Ward, was charged by a four-count information with unlawful restraint, intimidation, aggravated battery and battery. During the jury instructions conference, the State was given leave, over defendant's objection, to amend the aggravated battery information. Defendant was found guilty on all charges and was sentenced to concurrent terms of three years' imprisonment for unlawful restraint, five years' imprisonment for intimidation and five years' imprisonment for aggravated battery. Defendant appeals from these convictions.
The charges involved herein all arose out of an incident that occurred in Glen Ellyn, Illinois, on December 3, 1978. At trial, Margaret Marsden, the complaining witness, testified as follows. On December 2, 1978, shortly before midnight, she went to the lounge in the Glen Ellyn Holiday Inn, where she ordered a glass of wine. Shortly thereafter, the waitress brought her another glass of wine, which a man sitting at the bar had bought for her. Mrs. Marsden and the man then moved a seat closer to each other and talked for a half hour to 45 minutes. Mrs. Marsden described the man as white, slightly built, weighing less than 150 pounds, with longish hair, a receding hairline and dressed in a plaid flannel shirt and plaid pants. In court, she identified the defendant, Robert Ward, as the man she met in the Holiday Inn lounge.
Approximately 1 a.m., Mrs. Marsden left the lounge and returned to her automobile, which was in the parking lot of the Holiday Inn. After she had started the car, the defendant opened the passenger side door of the vehicle, got in the front seat and grabbed the keys out of the ignition. Mrs. Marsden testified that the defendant then put his hands on her neck, slapped her in the face, pulled her hair and told her to do what he said or she would be killed. The defendant then forced Mrs. Marsden to remove her pants and "play with herself." At 3 a.m., after being in the car for approximately two hours, Mrs. Marsden managed to free herself and ran into the Holiday Inn for help. At that time there were visible welts on her neck.
Glen Ellyn police officer Lawrence Ryan testified that on December 5, 1978, he went to defendant's residence, advised defendant of his Miranda rights and asked him if he had been at the Holiday Inn lounge at the date and time in question. Defendant responded that he had gone to the Holiday Inn that evening to have a drink and pick up some cigarettes. Officer Ryan further testified that defendant was wearing plaid pants and that his residence was approximately three-quarters of a block from the Holiday Inn.
The defendant's wife, Mary Ward, testified that her husband worked every Saturday from 3 p.m. to 1 a.m. and that on the evening in question, after getting home from work, her husband left the house to buy some cigarettes, but that he wasn't gone long. Defendant testified that on the day in question he was employed at the Beef and Barrel in Lombard, Illinois; that after getting home from work at about 1:30 a.m. he went to the Holiday Inn to get cigarettes; that he had one drink at the Holiday Inn and went home; and that he had never seen Mrs. Marsden before her appearance in court.
Three issues are presented for review:
(1) Whether the trial court erred in permitting the State to amend the aggravated battery information during the jury instructions conference;
(2) Whether the defendant was afforded effective assistance of counsel; and
(3) Whether the trial court erred in entering judgment on both the battery conviction and the aggravated battery conviction.
During the jury instructions conference, the State tendered a definitional instruction on the offense of aggravated battery, which described the place of the offense as "about public property." The trial judge refused to give the tendered instruction since, in his opinion, the alleged acts did not take place on "public property" but rather were at a place of "public accommodation." Although refusing the State's tendered instruction, the trial court did permit the State, over defendant's objection, to amend the aggravated battery information to state that the offense took place "about a public place of accommodation" rather than "about public property" as originally charged. An instruction defining the place of the offense as "about a public place of accommodation" was then given to the jury.
The resolution of this issue turns on our interpretation of section 111-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 111-5), which provides as follows:
"An indictment, information or complaint which charges the commission of an offense in accordance with Section 111-3 of this Code shall not be dismissed and may be amended on motion by the State's Attorney or ...