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06/17/87 the People of the State of v. Mildred E. Rotuno

June 17, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MILDRED E. ROTUNO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

510 N.E.2d 463, 156 Ill. App. 3d 989, 109 Ill. Dec. 595 1987.IL.837

Appeal from the Circuit Court of Marion County; the Hon. E. C. Eberspacher, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. KARNS, P.J., and KASSERMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Defendant, Mildred Rotuno, was charged by information with two counts of aggravated battery and one count of resisting a peace officer. A pretrial psychiatric examination concluded she was fit to stand trial but that at the time of the alleged offenses she lacked substantial capacity to conform her conduct to the requirements of the law due to a mental disease. Following a bench trial on stipulated facts, the circuit court of Marion County found her not guilty by reason of insanity on all three charges. The court subsequently found her subject to involuntary admission to the Illinois Department of Mental Health and Developmental Disabilities and ordered her placed in the custody of the Department for an indeterminate period not to exceed five years. Defendant appeals contending (1) the State failed to prove bodily harm for purposes of aggravated battery, (2) the court erred in denying her a continuance in order to secure an independent psychiatric examination before proceeding with the hearing which resulted in her involuntary admission, and (3) the court erred in applying extended-term sentencing provisions in setting a treatment period. We affirm in part and reverse and remand in part.

Defendant was charged with one count of resisting a peace officer (Ill. Rev. Stat. 1985, ch. 38, par. 31-1), one count of aggravated battery alleging bodily harm to a police officer (Ill. Rev. Stat. 1985, ch. 38, par. 12-3(a)(1); Ill. Rev. Stat. 1985, ch. 38, par. 12-4(b)(6)), and one count of aggravated battery alleging physical contact of a provoking nature to a police officer (Ill. Rev. Stat. 1985, ch. 38, par. 12-3(a)(2); Ill. Rev. Stat. 1985, ch. 38, par. 12-4(b)(6)). Defendant was tried on October 2, 1985, before the court on stipulated facts. The parties stipulated that three police officers would testify in conformity with the police report prepared by Officer Jim Sullivan of the Centralia police department. That report states:

"Approx. 1:53 p.m. 112684 P.D. received a call that Mildred E. Rotuno was at Central Comprehensive Mental Health and refused to leave and they wanted to vacate the premises. Officers Ron Edmonson and Ray Simer responded to call and I was Back-up. Off. Edmonson and Simer had to leave Mental Health and Off. Ron Edmonson and I were still in the vicinity at approx. 2:15 p.m. when we observed suspect walking down the center of east bound lane of Hwy. 161 east in front of Mental Health and she had traffic backed up on both directions for a considerable distance (approx. 15-20 car lengths). Off. Edmonson and I pulled onto Hwy. 161 and I approached suspect Mildred Rotuno and advised her that she was under arrest for improper walking on highway. Suspect Mildred took off running and I grabbed the sleeve of the sweater she was wearing trying to detain her and suspect Rotuno fell to the highway and started kicking, kicking me on the leg several times. With Off. Ron Edmonson assisting, we had to partially lift and carry suspect to squad car. At door to squad car suspect grabbed onto the metal cage and braced her body so that she was wedged in such a manner that even with both officers pushing we couldn't get her into the car. Officer Edmonson had to go to other door and was trying to pull suspect in as I was pushing but suspect was kicking me on the legs and mid-section of my body and a citizen stopped by traffic came to assist and suspect was forced into car.

At P.D. suspect Rotuno had to be carried into station and after patdown suspect had to be carried to cell."

The parties also stipulated that Dr. S.D. Parwatikar would testify in conformity with his psychiatric evaluation of defendant. Dr. Parwatikar's report concluded that defendant has a mental disease, that she was fit to stand trial, but that she lacked substantial capacity to conform her conduct to the requirements of the law at the time of the offenses.

Based upon these stipulated facts, the court found defendant not guilty by reason of insanity on all three charges on October 2, 1985, and ordered defendant committed to a mental health institution for evaluation. After receiving an evaluation on October 23, 1985, the court scheduled a hearing under section 5-2-4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-2-4(a)) to determine whether defendant was in need of mental health services and if so, the nature of those services. This hearing was scheduled for November 13, 1985. On November 12, 1985, defendant moved for appointment of an independent expert to examine her regarding the need for future mental health treatment, and on November 13, 1985, defendant moved for a continuance in order to obtain the independent expert's opinion. On November 13, 1985, the court denied the motion for appointment of an independent expert. At the hearing on that date, the only witness was Dr. Saber Girgis, a psychiatrist at the Alton Mental Health Center. Dr. Girgis recommended long-term inpatient treatment for defendant. He found that she has destructive behavior, is likely to inflict harm upon others in the future, and has little understanding of the consequences of her acts. After hearing the testimony of Dr. Girgis, the court found that defendant was subject to involuntary admission to the Illinois Department of Mental Health and Developmental Disabilities and was to be placed in the custody of the Department for an indeterminate period not to exceed five years.

Defendant first contends she should have been acquitted on the aggravated battery count alleging bodily harm to a police officer instead of being found not guilty by reason of insanity because there was insufficient evidence of bodily harm. The underlying battery supporting this charge is based upon section 12-3(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par.12-3(a)(1)), which states that "[a] person commits battery if he intentionally or knowingly without legal justification and by any means, . . . causes bodily harm to an individual." The State sought to enhance the charge to aggravated battery based upon section 12-4(b)(6) of the Criminal Code (Ill. Rev. Stat. 1985, ch. 38, par. 12-4(b)(6)), which states that a person commits aggravated battery if, in committing a battery, he knows the individual harmed to be a peace officer. Defendant argues an outright acquittal was required on this charge because there was no evidence that Officer Sullivan suffered any bodily harm.

This court has found that there need not be direct evidence of injury to sustain a conviction of battery based upon bodily harm. In People v. Taylor (1977), 53 Ill. App. 3d 810, 368 N.E.2d 950, the evidence showed the defendant had kicked a police officer in his groin and head areas while the two were in close proximity. We concluded that "[this] evidence, combined with the jury's common knowledge, is sufficient to establish that defendant's conduct caused bodily harm." (53 Ill. App. 3d 810, 816, 368 N.E.2d 950, 955.) We adopted the reasoning from Taylor in our decision in People v. Tripp (1978), 61 Ill. App. 3d 507, 378 N.E.2d 273, where a defendant struck a police officer in the face with his fist and struck him in the side with a stapler. We found that while the resulting injuries may have been relatively minor, the evidence was sufficient for the court to conclude the officer suffered actual bodily harm. 61 Ill. App. 3d 507, 510, 378 N.E.2d 273, 274.

In the present case, the evidence showed defendant kicked Officer Sullivan on his legs and mid-section while he and another officer were trying to push defendant into a police car. Sullivan's report states that "even with both officers pushing, we couldn't get her into the car." It was not until a citizen stopped to assist that defendant was finally forced into the car. Clearly defendant was strongly resisting the officers and was attempting to free herself from them. This evidence, combined with the fact finder's common knowledge, constituted sufficient evidence that Officer Sullivan suffered bodily harm when defendant kicked him on the legs and mid-section as she tried to escape. (See People v. Taylor (1977), 53 Ill. App. 3d 810, 816, 368 N.E.2d 950, 955.) Our supreme court has stated that "[although] it may be difficult to pinpoint exactly what constitutes bodily harm for the purposes of the statute, some sort of physical pain or damage to the body, like lacerations, bruises or abrasions, whether temporary or permanent, is required." (People v. Mays (1982), 91 Ill. 2d 251, 256, 437 N.E.2d 633, 635-36.) The evidence in the present case was sufficient to prove circumstantially that Officer Sullivan suffered some physical pain. We believe the facts here are much stronger than those in People v. McBrien (1986), 144 Ill. App. 3d 489, 494 N.E.2d 732, relied upon by defendant, ...


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