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07/27/89 the People of the State of v. Donald Swartz

July 27, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DONALD SWARTZ, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

542 N.E.2d 515, 186 Ill. App. 3d 399, 134 Ill. Dec. 336 1989.IL.1159

Appeal from the Circuit Court of Macon County; the Hon. James A. Hendrian, 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

At the trial on June 22, 1988, the complainant, Constance Feger, testified that on January 23, 1988, she asked the defendant, Donald Swartz, to take her to the K mart in Decatur, Illinois. Defendant arrived at Feger's house in Monticello around 8:30 p.m. Defendant appeared to have been drinking. When they arrived in Decatur, defendant began driving too fast and without his hands on the wheel, causing Feger to feel it was necessary for her to steer the vehicle. When defendant turned onto a dark side road saying it was too late to go to K mart, Feger attempted to exit the car. Defendant became verbally abusive and refused to stop the vehicle. In an attempt to escape, Feger turned off the car and removed the keys. Defendant then grabbed Feger by the hair and jerked her back into the car while demanding the keys. The scuffle ended when defendant obtained the keys and Feger exited the vehicle.

Officer James Stenger testified he answered a complaint from Feger that defendant had injured her neck when he jerked her head back by pulling on her hair. Feger reported some of her hair had been pulled out. The officer noticed red marks on Feger's neck. When Stenger questioned defendant, he explained he drove Feger to Decatur from Monticello at her request so she could buy some medication at K mart. When the two arrived in Decatur, defendant advised Feger he needed gas. Since he thought K mart would be closed, he suggested she stay at his apartment overnight and get the medicine the next day. Feger began to scream and removed the keys from the ignition. Defendant admitted pulling her hair and grabbing her neck and leg in order to get the keys. He then kicked and pushed her out of the car. Defendant said he pulled out some of Feger's hair in the struggle, but no hair was found in defendant's vehicle.

After his motion for a directed verdict was denied, defendant testified he drove Feger to Decatur on January 23, 1988, because she wanted to go to K mart. Upon arriving in Decatur, defendant turned onto a side street, at which time Feger became agitated, grabbed the steering wheel and demanded to know why they were not headed toward their destination. Defendant elbowed her back to the passenger's seat and explained that the car was out of gas and he did not have any money. When defendant stopped the car, Feger removed the keys from the ignition. A struggle ensued, during which Feger struck defendant in the nose, causing it to bleed, and defendant grabbed Feger by the hair. Defendant said he also suffered a cut to his stomach, which was caused by Feger when she grabbed the keys. Feger got out of the car as soon as defendant was able to wrench the keys from her hands.

Officer Stenger was resworn and testified he did not notice any injuries to defendant, nor did defendant complain of any pain when he was arrested in connection with the battery of Feger.

At the close of the trial testimony, the court instructed the jury on the elements of battery. (Ill. Rev. Stat. 1987, ch. 38, par. 12-3(a)(1).) Among others, the court refused the instruction tendered by defendant on the use of force in defense of property. (Ill. Rev. Stat. 1987, ch. 38, par. 7-3.) Defendant appeals, arguing the trial court failed to so instruct the jury.

The court gave, over the objection of defendant, Illinois Pattern Jury Instructions, Criminal, No. 11.06, at 209 (2d ed. 1981) (IPI Criminal 2d), which states in part:

"To sustain the charge of battery, the State must prove the following proposition:

That the defendant intentionally [and] without legal justification caused bodily harm to [Connie Feger]."

The defense of property instruction tendered by defendant and refused by the court was IPI Criminal 2d No. ...


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