The opinion of the court was delivered by: Justice Wolfson
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DANIEL G. WELTER, JUDGE PRESIDING.
In People v. Krstic, 292 Ill. App. 3d 720, 723, 686 N.E.2d 692 (1997), we held the collateral estoppel doctrine did not bar the State from prosecuting a domestic battery charge after a trial judge had dismissed a pro se petition for an order of protection, "because the State was not a party to the initial civil proceeding."
In this case, we now confront the question left unanswered in Krstic: Does collateral estoppel prevent the State from prosecuting a domestic battery charge after a hearing judge dismisses an order of protection petition brought and tried by the State? Our answer is no, and we affirm the defendant's conviction.
During acrimonious divorce proceedings, Paul Wouk (Paul) was charged with domestic battery against his ex-wife Sandra Wouk (Sandra) following an incident on August 11, 1998.
Before trial, the prosecution filed a petition seeking an order of protection for Sandra. At the hearing on this petition, Sandra testified Paul arrived at the marital residence on August 11: "He went to use the phone and I asked him not to. I just switched it in my name, and I went to hang up the phone, and he hit me." Sandra said Paul hit her in the arm. Sandra also testified about a prior, unreported incident of domestic violence three years earlier, shortly before the divorce. Sandra believed Paul would commit further acts of domestic violence if the court did not issue an order of protection.
Paul testified he arrived at the marital residence on August 11 and immediately went to the kitchen to use the telephone, when Sandra entered the room: "She said not to use the phone. That it was hers." Paul resumed dialing and turned toward the wall, away from Sandra:
"As I was talking on the phone, I had my head down ***, and I heard her come up behind me. And as I started to look up, I saw an arm coming over my left shoulder.
I reacted by trying to block it by my arm going up. As my arm went up and my head went up, I saw she was reaching to turn the phone off."
According to Paul, he did not punch or hit Sandra. He saw her reaching over his shoulder to shut off the telephone and merely blocked her arm, making contact with her.
The judge denied the petition, saying to Sandra: "Your testimony, ma'am, is that when he came home from work, he came in there to use the phone. And you told him not to use the phone. And either hung it up or tried, and he hit you on the arm. *** I think his story makes more sense to me than yours."
The judge, who earlier had noticed "a bruise on [Sandra's] inner, lower arm, between the elbow and the wrist," then addressed the assistant state's attorney:
"*** [I]n any case I don't believe her. And I have to make a decision. Her testimony about she told him now [sic] to use the phone, he couldn't use the phone. This is a lot of hooey. Unless there is something in the divorce decree that says he cannot now use the phone in a house they both have.
He states the phone was in his name prior to the 11th. That she changed the phone. And now I tell you what seems strange. The bruise on her arm is under the under portion of her arm. As she came over and he blocked her, that is where a bruise would be.
If you hit somebody you don't hit them on the underside of the arm. I just don't find your [Sandra's] testimony to be credible. The [order of protection] is denied."
Paul then filed a motion to dismiss his domestic battery charge, contending the hearing judge's order collaterally estopped the prosecution. Another judge heard and denied Paul's motion.
The case proceeded to a bench trial. It was a virtual carbon copy of the hearing.
Sandra testified Paul entered the marital residence on August 11 and stormed into the kitchen to use the telephone. Paul did not respond when she asked him not to use the telephone. According to Sandra, when she tried to hang ...