Appeal from the Circuit Court of Lake County. No. 97--CF--2982 Honorable George Bridges, Judge, Presiding.
The opinion of the court was delivered by: Justice Inglis
Following a jury trial, defendant, Paul C. Wett, was convicted of violating an order of protection (720 ILCS 5/12--30(a)(1) (West 1996)). He was sentenced to 18 months' probation and 9 months' periodic imprisonment. He appeals, arguing that (1) he was not proved guilty beyond a reasonable doubt; (2) he was denied a fair trial when the prosecutor asked him an improper question on cross-examination; and (3) his crime was improperly classified as a felony. We affirm.
Defendant was charged with violating an order of protection by making harassing contact by telephone. The indictment stated that his crime was enhanced by the fact that defendant had previously been convicted of violating an order of protection. See 720 ILCS 5/12--30(d) (West 1996).
At trial, the State introduced the following evidence. Joan Wett testified that she was married to defendant from 1983 to 1988. After their divorce in 1988, Joan and defendant reconciled and lived together until 1996. Joan had obtained custody of the couple's three children.
On August 28, 1997, Joan obtained an order of protection against defendant. She sought that order because defendant had repeatedly called, harassed, and threatened her. She was present when defendant was served with the order. The order stated that defendant was to have no contact with Joan. He was granted visitation with his children every other weekend and was permitted to call Joan's residence to speak with them at 8 p.m. on any day of the week. The order would be effective until August 28, 1999.
Joan testified that, on October 13, 1997, between 6:30 and 7 p.m., she received a telephone call from defendant. He screamed, "F------ whore, I want my kids," and, "I want my f------ kids, you f------ whore." Joan told him that she would call the police if he called again in violation of the order of protection, and she hung up. The next morning, defendant called again, screaming, "Listen, you f------ whore, I want to speak with my kids." Joan told him to stop calling and hung up. Again he called; he said, "whore," and Joan hung up. Defendant called three or four times more, and Joan finally disconnected her phone.
On cross-examination, Joan denied that it was her nine-year-old daughter, Katie, who called on the evening of October 13. Joan did not recall defendant mentioning anything about the purchase of insurance for their children. She acknowledged that the children were not insured. She did not recall whether the children were with her or with defendant on October 13.
Katie Wett, daughter of Joan and defendant, testified on defendant's behalf. She stated that she was at defendant's house on October 13, 1997. She called Joan that evening, and defendant told her to ask Joan if she had insurance. Katie did so. She then gave the phone to defendant and heard him ask Joan if she had insurance.
On cross-examination, Katie testified that she did not remember exactly what defendant said to Joan or how long he spoke. She did not remember anything else that happened on that day, during the previous weekend, or during the following weekend. Defendant told her that she was going to testify in court but did not tell her what he wanted her to say.
Judith Wett, defendant's mother, testified that defendant lived with her on October 13, 1997. At that time, defendant's children had no health insurance, and defendant had arranged for an insurance salesman to visit him at 7 p.m. At approximately 6:30 p.m., Katie called Joan, and defendant told Katie to ask Joan what kind of insurance he should order. Katie got "antsy" and handed the phone to defendant.
Judith heard defendant explain to Joan that he needed to know how much insurance she could afford, as she would be responsible for half of the cost. Defendant took the phone away from his ear, and Judith heard a loud voice coming through it. Defendant said, "Now, please calm down." Judith suspected that someone other than Joan was on the line because defendant said, "Well, I really wasn't talking to you." Defendant hung up. Judith did not hear defendant use profanity or raise his voice during the course of the call. Upon Judith's suggestion, defendant called the police.
Defendant testified that, on October 13, 1997, his children were at his house for their weekend visitation. He had scheduled a meeting for 7 p.m. with a representative of an insurance company to discuss the procurement of insurance for defendant's children. At approximately 6:30 p.m., Katie called Joan because she wanted to spend additional time with defendant. Defendant asked Katie to find out what Joan could afford to pay for an insurance policy. Katie did not understand his request and gave the phone to him.
Defendant explained to Joan the reasons for his inquiry. He heard Joan's boyfriend screaming in the background. Joan's boyfriend got on the line and asked why defendant was calling. Defendant said, "I wasn't talking to you," hung up, and called the police. Defendant testified that he was "very nice and polite" and "would never ...