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10/12/88 the People of the State of v. Elaine Clemons

October 12, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ELAINE CLEMONS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

529 N.E.2d 577, 175 Ill. App. 3d 7, 124 Ill. Dec. 596 1988.IL.1523

Appeal from the Circuit Court of Cook County; the Hon. Gene Wilens, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. McNAMARA and RIZZI, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

After a bench trial in the circuit court of Cook County, defendant, Elaine Clemons, was found guilty of misdemeanor battery and not guilty of solicitation to commit battery. The trial court sentenced defendant to one year's probation and imposed a $200 fine.

At trial, Debbie Anzelmo was the State's first witness. Anzelmo was sunbathing at Ardmore Beach in Chicago on the afternoon of Sunday, August 18, 1985. She noticed the victim of the battery, Nazier Khan, as he walked south past her while carrying a newspaper. Approximately 20 minutes later, she saw Khan walking back north. At the same time, she noticed two men with a radio sit down on the rocks nearby. As Khan walked right in front of Anzelmo, defendant walked up to Khan from behind Anzelmo. Defendant was not with the two men sitting on the rocks. Upon first approaching Khan, defendant touched his arm lightly in a "social" manner and they spoke a few words to one another. Suddenly, defendant screamed and yelled, "[This] is him, this is him," while she looked toward the two men sitting on the rocks. At that time, the two men approached the victim and beat him. Although defendant did not strike Khan, she did hold his arm "lightly" while the two men were beating him. Thereafter, the two men ran and defendant "took off with them." On cross-examination, Anzelmo testified that defendant lightly "grabbed" Khan's arm and that, while Khan did not express any pain, he did look at the defendant "real funny."

Nazier Khan also testified for the State. He had known defendant for about a year as of the time of trial and they had had a "casual dating relationship." At about 11 o'clock on the day of the attack he went to the beach to read the newspaper. Defendant approached him while he was sitting on a bench reading the newspaper. She immediately grabbed him, started hitting his face and chest, held onto his arms and called out, "[Here] is the one, hit him." Khan could not move at this time because he had a key chain in one hand and the newspaper in the other. While defendant held him, two men started beating him. Later in the direct examination, Khan admitted that he was not sure about the defendant having struck him but stated that she did hold him. Khan required 42 stitches, spent two days in intensive care, was away from work for two weeks and at the time of trial still suffered from blurred vision as a result of the attack. He also underwent surgery two days before trial to correct the scarring on his head.

On cross-examination, defense counsel attempted to ask Khan whether defendant had been hospitalized in June 1985 and whether he had ever struck defendant. Objections to both questions were sustained. Defense counsel then made an offer of proof that Khan had struck defendant in June and July 1985 as a result of which defendant sustained serious eye injuries. Defense counsel offered this evidence as proof that defendant did not grab Khan's arm at the beach because she was afraid of him. The court sustained the objections to this line of questioning on the ground that defendant's contention was "a little far-fetched." Defense counsel then attempted to show that after the dating relationship between Khan and defendant ended, Khan began harassing defendant. The court also sustained objections to this line of questioning.

On her own behalf, defendant testified that she was going to the beach on August 18, 1985, when she ran into a friend of hers named Michael, who was with someone she had seen "many times." When they got to the beach, defendant saw Khan and decided to ask him to stop knocking on her door and calling her "with threats." When defense counsel sought to have defendant testify to what Khan had done to bother her, the court sustained the State's objection on the ground that the prior difficulty between defendant and Khan was not a defense to the battery charge and thus had no probative value. Defendant testified that when she approached Khan he stood up, told her to shut up and pushed her. At that time, Michael and his friend rushed over because they knew how defendant "had been harmed before" and thought Khan was harming defendant again. Defendant did not know whether Khan had hit them first or vice versa. Finally, defendant testified that she did not strike or hold Khan because she only weighed 80 pounds, did not know he was at the beach when she went there, and that she was frightened when Khan pushed her.

Finally, Stuart Brown, a friend of defendant's, testified that, while he was looking out of a window in a high-rise building across from the beach on the day of the attack, he saw defendant and Khan speaking and then saw Khan push defendant. He then saw two men step between defendant and Khan. He did not see defendant touch Khan before Khan pushed her.

On appeal, defendant first contends that the inconsistencies in the State's evidence prevented the State from proving her guilt beyond a reasonable doubt. She notes Anzelmo's testimony that the attack occurred in the afternoon, that Khan was walking when defendant approached him, that she did so in a "social" manner and touched him lightly on the arm and that defendant did not strike Khan. Khan, in contrast, testified that the attack occurred at approximately 11 o'clock in the morning, that he was sitting on a bench when defendant approached him, and that defendant began striking him immediately upon approaching him. Defendant argues, inter alia, that these inconsistencies make her testimony and that of Stuart Brown more likely. Defendant does concede, however, that both Anzelmo and Khan testified that defendant called out to the two male assailants and held Khan while they beat him.

After reviewing the record, we do not believe that the inconsistencies in the testimony of the State's witnesses were so egregious as to have created a reasonable doubt of defendant's guilt. Rather, the inconsistencies are relatively minor and relate to collateral matters. It has so often been stated as to require no citation of authority that the weight and credibility of testimony is for the trier of fact and its determination will not be disturbed on appeal unless it is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of guilt. It is also well established that minor inconsistencies or discrepancies in the State's evidence do not create a reasonable doubt of guilt. People v. Porter (1981), 96 Ill. App. 3d 976, 982, 422 N.E.2d 213.

Even the major inconsistency in the State's evidence regarding whether defendant struck Khan does not raise a reasonable doubt of defendant's guilt. Even if the trial court, as the trier of fact, disbelieved Khan's testimony that defendant struck him, Khan's and Anzelmo's testimony that defendant held Khan while he was being beaten by the two male assailants was more than sufficient to support defendant's conviction for battery under a theory of accountability. Moreover, neither defendant's testimony that she weighed only 80 pounds on the date of the offense nor Khan's testimony that he was sitting and was holding a key chain in one hand ...


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