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01/19/89 the People of the State of v. Donald E. Bratton

January 19, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DONALD E. BRATTON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

533 N.E.2d 572, 178 Ill. App. 3d 718, 127 Ill. Dec. 700 1989.IL.53

Appeal from the Circuit Court of Vermilion County; the Hon. John P. O'Rourke, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. SPITZ and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

On March 14, 1988, defendant Donald Bratton was charged by amended information with home invasion, residential burglary, and unlawful restraint. The charges stemmed from a domestic dispute between defendant and his ex-wife, who were dating at the time. The dispute occurred on August 2, 1987, in Danville. Defendant pleaded not guilty, and a jury trial commenced on March 14, 1988.

The State's chief witness was complainant Kim Bratton. The chief witness for the defense was defendant. Their testimony established they were married on August 4, 1986. Their marriage bore a son. They were divorced on June 8, 1987, although several matters were pending final resolution. After their divorce, the couple continued to see one another on occasion.

Complainant testified on August 2, 1987, defendant telephoned at her home in the early morning hours and they discussed their marriage. Complainant stated she thought defendant may have been drinking, and they talked "for quite a while." Because she felt defendant had been drinking, complainant told him not to visit her at that time. Nevertheless, defendant called her several times requesting to visit with her, and she finally called the police. Michael Tranchant, deputy sheriff for the Vermilion County Sheriff's Department, testified he arrived at complainant's home and talked with someone he believed was defendant over the telephone, and told defendant not to visit complainant that evening.

After Officer Tranchant left the premises, complainant heard a loud noise at the front door. She approached and observed defendant break through one of the door's wooden panels, reach through and unlock the door, and enter complainant's home. She grabbed a telephone and called the police. She testified defendant came toward her and jerked the telephone cord out of the wall. He then threw her on the floor and held her there. She felt an object at her throat she thought was a pocketknife. She stated defendant asked her why she was trying to get him in trouble with the police. At that point, she struggled free and left her home. Outside, she met Officer Tranchant, who stated she was distraught and sobbing. Officer Tranchant entered the home, saw defendant there, and arrested him.

Officer Tranchant testified he observed the broken panel in the wooden door and a floor rug in disorder. He stated he did not find a knife on defendant, at the scene, or in the vicinity. Also, he did not observe any damage to the telephone or telephone cord, or any damage to the telephone connection to the wall. He also said he observed a rug burn on complainant's left knee.

Defendant admitted he broke the panel on the front door and entered complainant's home. He stated he intended to talk with complainant concerning his love for her and the rearing of their son. He claimed he did not force complainant to the floor or harm her in any manner. Defendant denied he was in possession of a knife and stated the only pocketknife he owned was left at his apartment when he went to visit complainant. Defendant's sister testified she discovered the pocketknife at his apartment a day after his arrest.

At the Conclusion of the trial, the jury acquitted defendant of home invasion. The jury returned verdicts of guilty for residential burglary and unlawful restraint. A sentencing hearing was held on May 13, 1988. After presentation of evidence, the trial court imposed concurrent terms of five years' imprisonment for residential burglary and one year's imprisonment for unlawful restraint. Notice of appeal was timely filed on May 31, 1988.

On appeal, defendant argues the prosecutor made improper comments during closing argument of the trial, and defendant was convicted improperly of both residential burglary based upon unlawful restraint and unlawful restraint, because unlawful restraint is an included offense of residential burglary. We hold the first issue has been waived and, as to the second, we conclude both convictions cannot stand.

Defendant argues during his closing argument the prosecutor presented unsworn testimony of his own actions in contrast to those of the defendant, and the prosecutor vouched for the credibility of his chief witness. According to defendant, on several occasions during his ...


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