Benjamin v. McKinnon

• Decision Date: 26 February 2008
• Docket Number: No. 4-07-0080.,No. 4-07-0079.,4-07-0079.,4-07-0080.
• Citation: 887 N.E.2d 14,379 Ill. App.3d 1013
• Parties: Lonna BENJAMIN, Plaintiff-Appellee, v. Terry McKINNON, Defendant-Appellant. Lonna Benjamin, Plaintiff-Appellee, v. Jeremy McKinnon, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

887 N.E.2d 14

379 Ill. App.3d 1013

Lonna BENJAMIN, Plaintiff-Appellee, v. Terry McKINNON, Defendant-Appellant.

Lonna Benjamin, Plaintiff-Appellee, v. Jeremy McKinnon, Defendant-Appellant.

No. 4-07-0079.

No. 4-07-0080.

Appellate Court of Illinois, Fourth District.

February 26, 2008.

Rehearing Denied April 11, 2008.

Justice MYERSCOUGH delivered the opinion of the court:

In separate April 5, 2006, petitions, plaintiff, Lonna Benjamin, sought orders of protection against defendant Terry McKinnon and defendant Jeremy McKinnon, Terry's son. That same day, the trial court granted ex parte emergency orders of protection against both defendants. In June 2006, plaintiff filed amended order-of-protection petitions. After a September 2006 hearing on the amended petitions, the court granted plaintiff an order of protection for one year against Jeremy but denied her one against Terry. Jeremy filed a motion to reconsider, and Terry filed a motion for sanctions under Supreme Court Rule 137 (155 Ill.2d R. 137). After a January 2007 hearing, the court denied both motions.

Defendants appeal, asserting (1) the order of protection against Jeremy should be vacated because Jeremy does not fall under the definition of "family or household member" and (2) the trial court erred by denying Terry's Rule 137 motion. We affirm.

I. BACKGROUND

Plaintiff sought an order of protection against Jeremy and Terry based on a verbal skirmish that took place at her residence in the early morning hours of April 1, 2006. In her order-of-protection petitions, plaintiff marked "other related by blood or marriage" as her relationship to Jeremy and Terry. The trial court granted plaintiff emergency orders of protection against defendants. In May 2006, Terry filed a motion to dismiss, asserting, inter alia, that he was not related by blood or marriage to plaintiff. He noted one of his children had been married to one of plaintiff's children but that the couple divorced in October 2005. After a June 2006 hearing, the court denied Terry's motion. (A transcript of that hearing is not included in the record on appeal.)

On September 6, 2006, the trial court held a hearing on the petition for plenary orders of protection. Lonna testified on her own behalf. She stated that at approximately 2 a.m. on April 1, 2006, she was watching television when she heard a vehicle "come barreling down the street." She looked out the window and saw the vehicle stopped for approximately a minute at a stop sign. She said the pickup truck she saw looked to her like Jeremy's. She then heard the truck "rev just like someone laid on the gas pedal, just revved up." Lonna estimated her house to be about 40 to 50 feet from the stop sign. Lonna stated that the truck drove past the stop sign, stopped, and then Jeremy got out of the vehicle.

Lonna went outside to the front porch. Lonna testified, "[Jeremy] was yelling and screaming that — saying [']that pussy mother — send that pussy mother fucker out so I can beat his ass.[']" Lonna testified she knew Jeremy to be referring to her son Lucas because Lucas and Jeremy "have had history." Lonna stated that she asked Jeremy to leave the property and that he responded that he "`would kill all you mother fuckers.'" She again told Jeremy to leave the property. Jeremy did not leave, and Lonna and Jeremy "argued back and forth."

Eventually, Jeremy exited the yard and moved to the side of the street. Lonna testified, "[Jeremy] was calling me all kinds of filthy names." She stated that Jeremy referred to her as a "bitch" and a "whore." She said, "[Jeremy] grabbed his private parts and said, [']I can touch you in places you've never been touched before.[']"

Lonna testified that it was then that she noticed her husband Larry, her sons Lucas and Logan, and Logan's girlfriend Billy Jo Surratt, were all outside on the porch. Lonna stated that Jeremy was trying to get Lucas to come down to the street. She said Jeremy threatened to kill Lucas and the whole family. She stated that she had reason to be fearful of Jeremy because her grandchildren were inside the house and because "anybody that would come to someone's house at that hour of the morning I think that they would act on their words."

Approximately three and five minutes after Jeremy arrived, his father Terry also arrived at the Benjamins' house. Lonna testified that Terry "jokingly" tried to get Jeremy back in his truck. As Terry was driving off, Lonna stated the he pointed to her son Logan and said "something to the effect of [']that's right, you better leave, slugger,['] or something like that." She testified that Terry pointed his finger at Logan and said, "['][Y]ou better watch your ass, boy, or you'll get some of it too.[']"

Lonna testified that she feared Terry because she knew that he had been convicted for stabbing his own nephew. She said the actions of both Jeremy and Terry made her extremely upset. She said Jeremy appeared to be under the influence of alcohol that night. She said Jeremy was "extremely loud" and that he had slurred speech. She also observed that he was staggering. She testified that he appeared to be drunk "or impaired in some way."

Lonna's husband, Larry, also testified that he observed the events that night as Lonna described and that Jeremy's behavior caused him to be extremely upset. He testified, "You know, any time someone threatens to kill my whole family, yes, it's upsetting." Larry testified that he could not recall exactly what Lucas was saying in response to Jeremy; however, Larry recalled Lucas indicating that if Jeremy came into their yard he would beat him up.

On cross-examination, Larry testified that there was "bad blood" between the two families. When asked whether the bad blood was caused by criminal activity, namely Lucas's home invasions, Larry responded that "[a] lot of that has to do with [Jeremy] threatening my family." Larry testified that Lucas had been arrested because of complaints made by Terry's daughter and Jeremy's sister (and Lucas's former wife), Tara. Larry could not recall whether Lucas had been arrested for home invasion. Larry denied that Lucas had a reputation for being a troublemaker. On the night in question, Larry stated that his youngest son, Logan, told Terry that he "better go on down the street" which elicited Terry's response, "['][Y]ou better watch your ass boy. You're going to get some of it too.[']"

Billy Jo Surratt testified that she was Logan's girlfriend and living in the Benjamins' house at the time. She also observed the events that night around 2 a.m. outside the Benjamins' house. She testified she heard Jeremy tell Lonna he was going to kill her whole family. She also heard Jeremy call Lonna a "bitch" and a "whore." After Terry arrived, Billy Jo testified she went back inside the house and did not observe anything further. On cross-examination, Billy Jo testified that she initially went outside to the porch because she heard an engine "revving" outside. She testified that she only heard what Jeremy said while the argument ensued outside on the porch and could not recall what anyone else said.

At the conclusion of plaintiff's evidence, defense counsel made a motion for a directed judgment asserting plaintiff had failed to establish a family relationship between the parties. Plaintiff's attorney responded they had already litigated the matter on Terry's motion to dismiss. The trial court noted the issue of a family relationship had already been brought before the court and denied the motion for a directed judgment.

Lonna was called as an adverse witness by Jeremy and Terry. She testified that Lucas had pending court cases involving Class X felonies. The victim in those cases was her son Lucas's ex-wife Tara, Jeremy's sister and Terry's daughter. Lonna testified that Lucas's felony charges were pending when she filed the petition.

When asked whether she had any family relationship with Terry at all, Lonna answered, "I don't know how to answer that." She also testified that she was not Jeremy's mother-in-law.

Terry testified that when he arrived at the Benjamins' that night, he did not observe anyone threaten anyone else. He stated Jeremy did not punch anyone and he did not go onto the Benjamins' property. He said that he observed Jeremy in the street arguing with Lucas. Terry testified that Lucas's actions were, "[l]ike Jeremy's. They were just a word battle is all it was." Terry did not observe Jeremy grab his crotch. Terry testified Lucas got his dog, which "looked like some kind of a lab maybe, golden lab, pretty good size dog." He said he did not know whether Lucas had the dog by a chain or the collar, but he was trying to "sic" the dog on Jeremy but the dog would not do it. Terry said eventually he got Jeremy in his truck and went back to his truck to leave. At this point, Terry testified the McKinnons were calling him "[']fat ass, queer, and baldy.[']" He could not recall exactly who was saying these things to him. Terry stated that he laughed at them while he was walking back to his truck because they were calling him these names. Terry denied that he threatened Logan while he was leaving.

On cross-examination, Terry testified that it was Cindy McKinnon, his ex-wife, who called him that night and told him to go to the Benjamins' house to get Jeremy. Terry testified he went to the Benjamins' house because he did not want to see Jeremy get in trouble. Terry testified that he had not been drinking that night and that he does not drink. He testified that he did have a conviction in Calhoun County for aggravated battery.

Jeremy testified that earlier in the evening he had been at Palace, a bar in Calhoun County. He stated that he saw Lucas at the bar with Jeremy's sister and Lucas's ex-wife, Tara, although Tara had been issued an order of protection preventing Lucas from being near her. The trial court took judicial notice of this order. Jeremy said that he and Lucas "had words" at the bar....