Appeal from the Circuit Court of Cook County Honorable Kenneth J. Wadas, Judge Presiding.
The opinion of the court was delivered by: Justice Robert E. Gordon
JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Presiding Justice Garcia and Justice McBride concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant James Lattimore was convicted of aggravated battery and retail theft. 720 ILCS 5/12-4(b)(15), 16A-3(a), 16A-10(2) (West 2008). After a hearing on aggravation and mitigation, the trial court sentenced defendant to two years of mental health probation and assessed fines, fees, and costs in the amount of $555. Defendant filed a posttrial motion for a new trial, which was denied. On appeal, defendant challenges only the conviction for aggravated battery. Defendant argues, first, that the State failed to prove beyond a reasonable doubt (1) that defendant "knowingly" caused bodily harm to a security guard, (2) that defendant "struck" a security guard "about the body," and (3) that the security guard was a "merchant" pursuant to section 12-4(b)(15) of the Criminal Code of 1961. 720 ILCS 5/12-4(b)(15) (West 2008). For the following reasons, we affirm.
¶ 2 Second, defendant argues that the trial court erred by assessing certain fines, fees, and costs and failing to credit defendant for days served in presentence custody. For the following reasons, we order defendant's fines and fees reduced by $250 from $555 to $305, and order that his mittimus be corrected accordingly.
¶ 5 The incident that resulted in the charges took place on November 25, 2008. On December 23, 2008, a grand jury indicted defendant for robbery, aggravated battery, and retail theft. The aggravated battery count charges that defendant:"in committing a battery, knowingly and without legal justification caused bodily harm to James Lee, to wit: struck James Lee about the body, knowing him to be a merchant, to wit: an employee of Family Dollar Store, who was detaining James Lattimore for an alleged commission of retail theft, in violation of." 720 ILS 5/12-4(b)(15) (West 2008).
Since the retail theft count is not at issue in this appeal, we do not set it forth here.
¶ 7 At a bench trial that commenced on September 14, 2009, the State called Tara Lynn Jones as a witness. Jones testified that she worked as a retail assistant manager for the Family Dollar Store on Laramie Avenue in Chicago, a retail mercantile establishment licensed to do business in the State of Illinois. At approximately 4:30 p.m. on November 25, 2008, she was standing in the front, inside of the store, when she observed defendant pick up some AXE deodorant body sprayand then move toward the store exit. Jones alerted her boss, Marilyn Langford, who notified James Lee, a security guard.
¶ 8 Jones observed defendant as he passed the last cash register on his way to the exit without paying for any merchandise. Jones testified that she asked defendant to return the merchandise and defendant claimed "he didn't have anything." Jones was then joined by Langford, Lee, and other store personnel at the front of the store. Jones testified defendant then claimed that he "only had one," and gave them a single body-spray canister. Jones testified defendant said, "I ain't going to jail," and attempted to exit the store. Lee blocked defendant's path. Defendant then attempted "to push his way out the front door" as Lee and other store personnel struggled with defendant and brought him into the store's security office. Once inside the security office, defendant continued to struggle with Lee and other store personnel, and three more body-spray canisters fell out of his shirt. Jones testified that she took possession of the fallen canisters and called the police.
¶ 9 Jones testified that defendant then attempted to leave the security office "a couple of times," including running toward the front exit, back into the store toward the merchandise, and toward a back door located inside the security office. Jones was asked if anyone was injured during the time store personnel struggled with defendant. She testified:
"JONES: I believe James Lee hurt his self trying to control or hold [defendant] down. He got yanked and hurt his shoulder. And I heard the gentleman -- the defendant might have cut himself.
JONES: But Lee is the only one who I know for sure that got hurt."
By the time the police arrived, Lee and another Family Dollar Store employee forced defendant to the ground. Jones then printed a receipt for police indicating that the pretax retail price of each body spray was $4.50, for a total of $18.
¶ 10 The State played video recordings from the Family Dollar Store's security cameras for the trial court. Jones described the images displayed on the recordings as they were played. She testified that the store's security cameras face the cash registers and the front door on the inside of the store. There are no security cameras inside the security office or covering the area where the deodorant products are displayed. Jones testified that these recordings show defendant repeatedly attempting to leave the store and resisting store personnel.
¶ 11 On cross-examination, Jones admitted that she did not observe Lee become injured. She testified that she learned of Lee's injury only when Lee described how he became injured following the "battling" between Lee and defendant.
¶ 12 The State then called James Lee as a witness on its behalf. Lee testified that, on November 25, 2008, he was employed by Metro One Security and was assigned to work at the Family Dollar Store on Laramie Avenue. Lee wore black uniform pants, a black jersey, and a hooded three-quarter length winter coat with the word "security" printed in large letters on the back of the coat and "Metro Loss Prevention" on the front breast.
¶ 13 Lee testified that at approximately 4:30 p.m. he heard someone calling his name from the front of the store. He then rushed to the front of the store and observed other Family Dollar Store employees speaking with defendant. He then blocked defendant from moving toward the front door "to prevent him from escaping." Lee testified that as defendant tried to move to the front door, "there was a little contact" between himself and defendant. He then attempted to restrain defendant by pushing him toward the door of the security office. Lee testified that defendant was "fighting" him. After a "tussle" and once he was assisted by other store personnel, Lee was able to force defendant into the security office. Lee testified that defendant would not stay in the security office and immediately left, and Lee "wrestle[d] him back towards the [security office] door." They continued to "wrestle" once he brought defendant back into the security office.
¶ 14 Lee testified that defendant said "I'm not going to jail," and attempted to leave through the security office's back door. Defendant's path to the back door was blocked by merchandise that had been stacked on top of platform carts used to transport merchandise, known as "U-boats." Lee testified that defendant was "damaging" the merchandise or "stock" by "bust[ing] right into it" in his attempt to maneuver to the back door. Lee was then asked if defendant "came into contact with" him during this encounter. Lee testified as follows:
"LEE: Yes. It was contact when I grabbed him.
COUNSEL: What kind of contact?
LEE: I grabbed hold of his sweater to pull him out of the stock because he was damaging stock because he was damaging too much stock.
COUNSEL: What happened when he did that -- when you did that. I am sorry?
LEE: I pulled him out and it was a U boat right there and he yanked from me and that threw me into the U Boat that was in front of me and it caused me to injure my right shoulder.
COUNSEL: So did you hit the U boat based on the defendant's actions? LEE: Yes."
Lee testified he felt "excruciating pain" after his right shoulder struck the U-boat. Defendant continued to struggle with Lee, and other store personnel helped Lee subdue defendant on the security office floor.
¶ 15 On cross-examination, Lee admitted that he never went to the hospital or received medical treatment for his shoulder following this incident. Lee also admitted that he did not mention this injury in his incident report.
¶ 16 On redirect examination, Lee testified that the Family Dollar Store filed a complaint on November 25, 2008, for battery and retail theft with the police, and the battery referred to the shoulder injury Lee sustained during the incident with defendant. Lee testified that the injury was not caused by Lee's grabbing defendant, but because of defendant's reaction to Lee's grabbing.
¶ 17 The State introduced the Family Dollar Store's security video recording from November 25, 2008, photographs of the merchandise found on defendant, the receipt created by Jones, and a certified statement of defendant's prior retail theft conviction on February 2, 2006, referred to as case number 05-C4-41377-01. These exhibits were offered into evidence without objection. The State then rested.
¶ 18 Defendant then moved for a directed finding of not guilty on the robbery and aggravated battery charges, but not on the retail theft charge. The trial court granted defendant's motion with respect to the robbery charge, since defendant did not take the property from Lee by use of forceor by threatening the imminent use of force. With respect to the aggravated battery charge, defendant argued that the State presented testimony that Lee put "his hands on" defendant and then they fell, but failed to prove that defendant "stuck Mr. Lee about the body" in a manner consistent with the "battery that is charged" in the indictment. The trial court denied defendant's motion with respect to the aggravated battery charge.
¶ 19 Defendant exercised his right not to testify on his own behalf, called no witnesses, and rested. In defendant's closing argument, the defense argued that the State failed to prove that defendant had the intent to make physical contact with Lee. Defendant also argued that there was no "strike" as is specified in the indictment, but only a "yanking, falling down."
¶ 20 In the State's closing argument, the prosecution argued that defendant then "pull[ed]" Lee into the U-boat when Lee was injured. Defendant was "continually wrestling, tussling, throwing down merchandise, climbing over boxes, damaging merchandise to make good on [his] escape when security officers and store personnel had been trying to subdue" him for "several minutes." The State argued it was reasonable for defendant to know during this struggle that "someone can get injured," and by "yanking forward," defendant caused Lee to "strike" his shoulder. Although the State admitted that there was no testimony that defendant "in a conventional way took a fist and struck" Lee, the State argued that defendant's struggle with Lee caused Lee's injury and forced Lee's body against the U-boat. Specifically, the prosecution stated that defendant's "reaction to being grabbed *** caused Lee to fall into the U-Boat."
¶ 21 The trial court then found defendant guilty of aggravated battery and retail theft. The trial court noted that defendant was "charged with striking James Lee about the body which didn't actually happen," and explained its finding as follows:
"THE COURT: The defendant on three separate occasions attempted to, I guess you could say, resist the detention by the security guards and store personnel in a violent manner using force, attempting to leave the room, resisting, going into the room and how could he not know that there was a great risk that someone was going to get hurt.
Back and forth. Back and forth. And these three separate attempts to get away, he had to have known that somebody could get hurt, including himself. He could get hurt himself because he was outnumbered with the police on the way.
I know that the charge, the indictment reads: Struck James Lee about the body. I believe he knew that James Lee was personnel from the store, an employee of Family Dollar, who again was being detained evidenced by his statement that he did not want to go back to jail, that indicates knowledge.
And in the course of his attempt to leave on, at least the third occasion when Lee tried to bring him in, he lurched forward, causing Lee to be struck about the body so he caused it."
¶ 22 C. Posttrial Proceedings
¶ 23 On October 14, 2009, defendant filed a posttrial motion for a new trial arguing that the evidence failed to establish that defendant (1) "struck" Lee, as stated in the indictment, and (2) intentionally or knowingly caused bodily harm to Lee when defendant pulled Lee into the U-boat as they both fell. On November 5, 2009, the trial court heard arguments on defendant's motion,and denied the motion, stating "I have rethought the issue, and I think I was correct in my initial assessment, and I will stand on my original ruling."
¶ 24 The trial court proceeded to sentencing and heard factors on aggravation and mitigation. The State argued that this was defendant's eleventh felony and that defendant had been found guilty of aggravated battery of an emergency response person, drug charges, robberies, armed robberies, and five other retail thefts. The State requested that defendant be sentenced toward the "higher end" of the maximum 10-year sentencing range. In mitigation, defendant submitted a letter from himself and a "Mental Health Probation" report, stating that defendant would be eligible for services from the "Mental Health Unit of the Adult Probation Department" if he was placed on ...