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07/25/89 the People of the State of v. Robert Zarebski

July 25, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ROBERT ZAREBSKI, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

542 N.E.2d 445, 186 Ill. App. 3d 285, 134 Ill. Dec. 266 1989.IL.1146

Appeal from the Circuit Court of Du Page County; the Hon. Ronald B. Mehling, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Defendant, Robert Zarebski, was convicted following a jury trial on two counts of violating an order of protection entered pursuant to the Illinois Domestic Violence Act (Ill. Rev. Stat. 1985, ch. 40, par. 2301-1 et seq.). The jury concluded that defendant violated the order of protection by harassing and entering the residence of his estranged spouse, Leslie Zarebski. Defendant appeals his convictions, arguing that (1) the trial court erred in permitting two undisclosed witnesses to testify for the State; (2) the trial court erred by limiting defendant's cross-examination of Leslie; (3) defendant was denied a fair trial by questions propounded by the State and by the State's closing argument; (4) the trial court erred by denying defendant's motion for a directed verdict on count I of the complaint, which alleged that defendant harassed Leslie; (5) the State failed to prove defendant guilty beyond a reasonable doubt on the basis that defendant did not knowingly violate the order of protection; and (6) defendant was denied the effective assistance of counsel. We affirm.

On July 9, 1986, Leslie obtained an ex parte order of protection prohibiting defendant from "striking, threatening, harassing or interfering with Leslie R. Zarebski or any other family or household member." The order also granted Leslie possession of the parties' residence to the exclusion of defendant. The order was effective from July 9, 1986, to July 16, 1986. On July 13, 1986, defendant was involved in an incident at the premises during which he engaged in an argument with Everett Tracy, a family friend who was visiting Leslie at the time. Defendant left the premises but was later arrested and charged with violating the order of protection by harassing Leslie and entering the premises.

Prior to trial, defendant filed a motion for a bill of particulars requesting the State to describe the manner in which defendant harassed Leslie and entered the premises. The State responded by alleging that defendant "harassed Leslie Zarebski . . . by yelling profanities and threatening Everett Tracy who was present at the time in question." The State further alleged that defendant entered the premises "by unlocking the front door with a key" and entering the front hallway.

The trial commenced on September 30, 1987. Leslie testified that on July 13, 1986, she was at home with her four children and her eldest son's girlfriend. Everett Tracy and his minor daughter were also present. After finishing dinner, Tracy began installing chain locks on the doors of the house. Sometime after 7 p.m., Leslie's eldest son, Rick Zarebski, announced that defendant had parked his car in front of the house and was approaching the front door. Leslie testified that she also saw defendant exit his vehicle and approach the house. Leslie told her children to go into the basement while she telephoned the police. Defendant subsequently entered the house through the front door and confronted Tracy. Leslie stated that defendant swore at Tracy and ordered him out of the house. Leslie further testified that defendant ignored Tracy's request for defendant to leave and began to approach her instead. Defendant subsequently left the house. Leslie stated that she was terrified by the incident and was "scared that [her] life was over." On cross-examination, Leslie testified that she was involved in a contested divorce with defendant and that her relationship with him was hostile. Leslie denied that she had previously communicated any desire to speak to defendant on the date of the incident.

The State next called Deputy Robert Lesner of the Du Page County sheriff's department. Deputy Lesner testified that he served defendant with the order of protection, read it to him, and answered defendant's questions regarding its prohibitions. Deputy Lesner told defendant that he would be in violation of the order and subject to immediate arrest if he attempted to go to the residence.

The State next called Everett Tracy. Tracy testified that he was a friend of the Zarebskis and had frequent contact with them. Tracy testified that he was aware that an order of protection had been entered against defendant and witnessed Deputy Lesner serve and read defendant the order. Tracy stated that he was at the Zarebski residence on July 13, 1986, when defendant arrived. Tracy testified that defendant entered the residence through the front door, swore at him, and ordered him out of the house. Tracy also testified that defendant walked further into the house as Tracy attempted to talk him into leaving. Tracy stated that he could not recall whether defendant said anything to Leslie, who was on the phone with police at the time. Defendant subsequently left the premises. Tracy denied making any physical contact with defendant on that occasion.

The State next called Rick Zarebski. Rick testified that he was present at the Zarebski residence on July 13, 1986, when defendant arrived. Rick stated that at approximately 7:30 p.m., he saw defendant drive by the residence, turn around, park his car in front of the house, and approach the front door. Rick testified that he told the occupants of the house, including Leslie, that defendant was approaching the front door. Rick saw Leslie pick up the telephone and heard defendant insert a key into the lock and open the front door. Rick testified that defendant came through the front door and confronted Tracy by yelling obscenities and ordering him out of the house. Rick further stated that Tracy attempted to talk defendant into leaving but that defendant stepped past Tracy and began to approach Leslie. Defendant subsequently left the premises and was accompanied to his car by Tracy. On cross-examination, Rick stated that he did not witness defendant either speak to or strike Leslie at that time.

The State next called Deputy Robert Sebby of the Du Page County sheriff's department. Deputy Sebby testified that he was dispatched to the Zarebski residence in response to a domestic dispute on July 13, 1986. Deputy Sebby spoke to Leslie, who he characterized as "very distraught, almost near hysterical." Deputy Sebby further testified that it took approximately 20 to 30 minutes before Leslie calmed down enough to talk to him.

At the Conclusion of the State's case, defendant moved for a directed verdict on count I of the complaint, which alleged that defendant harassed Leslie. Defendant noted that there was no evidence that he even spoke to Leslie, and further argued that his conduct toward Everett Tracy did not constitute harassment of Leslie. The trial court ...


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