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08/06/87 the People of the State of v. Charles Edward Lee

August 6, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

CHARLES EDWARD LEE, DEFENDANT-APPELLANT

(8) IS, OR THE PERSON BATTERED IS, ON OR ABOUT A PUBLIC WAY, PUBLIC PROPERTY OR PUBLIC PLACE OF ACCOMMODATION OR AMUSEMENT . . .." (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 12-4(B)(8).)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

512 N.E.2d 92, 158 Ill. App. 3d 1032, 111 Ill. Dec. 188 1987.IL.1132

Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. GREEN and McCULLOUGH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

After a jury trial, defendant was convicted of the offenses of battery, aggravated battery, and retail theft under $150. (Ill. Rev. Stat. 1985, ch. 38, pars. 12-3, 12-4(b)(8), 16A-39(a).) He was sentenced to concurrent terms of two years' imprisonment for aggravated battery and 180 days' imprisonment for retail theft, with 78 days' credit for time served in incarceration. Defendant appeals, arguing his conviction for aggravated battery must be reduced to battery because the evidence does not show that either he or the complaining witness were on or about a "public place of accommodation" within the meaning of section 12-4(b)(8) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 12-4(b)(8)) at the time the battery occurred. We affirm.

According to the evidence presented at trial, defendant entered Huck's convenience store, an establishment selling gas and oil as well as grocery items, located on Jasper Street at Cantrell in Decatur, Illinois, at about 2 a.m. on October 3, 1986. He cashed a winning $5 instant lottery ticket and then walked to the back of the store, where he took two 12-pack containers of Coors beer from a display. Defendant did not pay for the beer but attempted to walk out of the store with one of the 12-packs. The complaining witness, the only employee working at the store at the time of the incident, confronted defendant, who said he was going to take the beer. Defendant exited the store and walked onto the parking lot. The complaining witness followed defendant out of the store and -- in the parking lot -- grabbed defendant around the waist to try to keep him from leaving. Defendant then hit the complaining witness in the head several times with his left fist. During the incident, the 12-pack of beer opened and several cans rolled across the parking lot. Defendant broke loose from the complaining witness and left the parking lot on foot with the remainder of the beer. The complaining witness testified he knew defendant when defendant came into the store on October 3, 1986, because he went to school with defendant.

The complaining witness' testimony was corroborated by Marvin Cook, who testified he had known defendant for five years. Cook testified he saw defendant at about 1:45 a.m. on October 3, 1986, in the parking lot of the Corporation Lounge. Cook testified defendant asked him if he would take defendant to Huck's to cash an instant lottery ticket. Cook said he agreed, telling defendant he needed some gas. Cook testified he drove defendant and Joe Reed to Huck's and waited in his car while the two men went in. Cook testified Reed came out first, and then defendant came out carrying beer. Cook said the store clerk came out of the store and grabbed defendant around the waist, trying to get the beer back; and defendant started hitting the store clerk in the head with his fist. Cook said during the incident the package of beer defendant was carrying broke open and some cans rolled on the parking lot. Defendant carried the remainder of the beer to the car and wanted to leave. Cook said he told defendant he was not going anywhere and defendant thereafter walked off. The store clerk took down the car's license plate number and went back inside the store.

Defendant took the stand in his own defense and testified he did not go to Huck's convenience store on the night of October 3, 1986, and did not take a 12-pack of beer or struggle with the store clerk outside the Huck's store in the parking lot. Defendant also denied seeking Marvin Cook on October 3, 1986. Defendant did not recall where he was on the night of the incident.

Section 12 -- 4(b) of the Code provides in part:

"A person who, in committing a battery, commits aggravated battery if he either:

On appeal, defendant contends the statutory reference to "public place of accommodation" does not include the parking lot outside a store or business which falls within this statutory term.

In arguing the parking lot of a public place of accommodation is not a situs within the meaning of the statute, defendant relies on People v. Johnson (1980), 87 Ill. App. 3d 306, 308-09, 409 N.E.2d 48, 50. In Johnson, the defendant was convicted of aggravated battery under sections 12-4(a) and 12-4 (b)(1) of the Code (Ill. Rev. Stat. 1977, ch. 38, pars. 12-4(a), 12-4(b)(1)) based on stab wounds inflicted in the restroom of a lounge. On appeal, the defendant argued the trial court committed reversible error when it refused to instruct the jury on the use of deadly force to prevent the commission of a forcible felony, i.e., the right to defend against the commission of a forcible felony. Defendant argued his testimony and that of another witness showed the victim of the offense had committed an aggravated battery as defined in section 12-4(b)(8) of the Code (Ill. Rev. Stat. 1977, ch. 38, par. 12-4(b)(8)); defendant thereby sought to use the language of this subsection in support of the defense theory of the case and overturn his conviction. The Johnson court found the defendant's argument that the lounge restroom was public under this subsection untenable. The facts before us do not require us to comment on the result reached in Johnson. The Johnson court further stated, however:

"We believe the intent of the legislature, as expressed by the language of the statute, is not to include a tavern restroom within this subsection of the statute. A tavern is private property open to the public for a limited purpose. To include a tavern restroom within the definition of 'public property or public place of accommodation ...


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