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07/22/88 the People of the State of v. Philip Pennington

July 22, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

PHILIP PENNINGTON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

527 N.E.2d 76, 172 Ill. App. 3d 641, 122 Ill. Dec. 704 1988.IL.1136

Appeal from the Circuit Court of De Kalb County; the Hon. Rex F. Meilinger, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. INGLIS and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Following a bench trial, defendant, Philip Pennington, was convicted of aggravated battery and sentenced to 60 days' imprisonment, probation for a period of two years, and to undertake psychiatric counseling. The sole issues on appeal are whether the grounds of a privately owned dormitory are "on or about a public way" as defined in section 12-4(b)(8) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 12-4(b)(8)) and whether his sentence is excessive.

Cary Booth testified at trial that at approximately 4 p.m., on March 31, 1986, defendant attacked her. Booth, a college student, was walking on a sidewalk near the door of her dormitory when defendant, a stranger, began grabbing her buttocks and pulling her sweater, placing his hand on her left breast. Defendant attempted to push her to the ground, but Booth resisted by hitting him with her book bag and pushing him away. Defendant stated to Booth, "C'mon. You're gorgeous. I want you." Booth got away from the defendant and ran into the building. Booth testified that she observed defendant on a second occasion on April 7, 1986, near her classroom when he approached her holding a camera. Booth ran to telephone the police, and she heard the camera click.

Booth stated on cross-examination that the sidewalk of the dormitory where the attack occurred was privately owned and was also used by nonresidents. The dormitory had washrooms, a cafeteria, and a store which nonresidents also patronized, and the nonresidents could buy a ticket to present to the cafeteria for meals.

Susan Grant, a friend and also a student at the college, testified that on March 31, 1986, at about 4 p.m., she was inside the University Plaza dormitory walking through a corridor. Grant noticed the complainant approaching the building and a man walking behind her. The man, whom she identified in court as defendant, blocked about half of Booth's body and, although a glass revolving door partially obstructed her view, Grant observed defendant turn to Booth and Booth move to block or strike him with her backpack. Grant observed defendant raising his arm and noticed his profile and saw Booth walk quickly toward the building. The witness further testified that the University Plaza was situated between the university apartments and the campus and that university apartment residents would cut through the university plaza building in order to get to the campus.

Officer Dick Zenzen testified that Booth described defendant to him when she filed her complaint on March 31, 1986. Officer Zenzen filed a second report on April 7, 1986, when defendant took Booth's picture with a 35-millimeter camera outside a classroom, and the officer apprehended defendant later that day in the commons area. Zenzen transported defendant to the police station, advised him of his Miranda rights, and found a camera on his person. Defendant admitted grabbing Booth and indicated that he had done similar acts previously.

Officer Zenzen also testified that he ate meals at the University Plaza as a nonresident for approximately two years, attended club meetings in the building, attended a wedding reception, used the restrooms, and shopped in the store. Although he had friends living in the building, he was unaware of any rule that limited access to those visiting someone in the building. Zenzen also stated that parts of the building were locked and access was provided only to residents and their guests.

For the defense, Stuart Stern, the manager of the University Plaza dormitory, testified that the building was privately owned and access to it was limited to residents and guests, but it was not enforced. If people cut through the walkway or played on the lawn, he did not tell them to vacate the premises.

The trial court found that since the attack occurred in an area accessible to the public, the "public way" requirement of section 12 -- 4(b)(8) was met.

At the sentencing hearing, evidence was presented in aggravation that Booth could not return to school for a month due to the trauma related to the incident. Vita Pennington, defendant's mother, testified in mitigation that defendant was a serious classical music student who worked in a retail shop and intended to return to school after the trial. Jerard Conroy, a family friend for many years, testified that defendant did not have a tendency ...


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