People v. Belpedio

• Citation: 569 N.E.2d 1372,155 Ill.Dec. 761,212 Ill.App.3d 155
• Decision Date: 10 April 1991
• Docket Number: No. 2-90-0140,2-90-0140
• Parties: , 155 Ill.Dec. 761 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Louis BELPEDIO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1372

569 N.E.2d 1372

212 Ill.App.3d 155, 155 Ill.Dec. 761

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Louis BELPEDIO, Defendant-Appellant.

No. 2-90-0140.

Appellate Court of Illinois,

Second District.

April 10, 1991.

G. Joseph Weller, Deputy Defender, Office of the State Appellate Defender, Elgin, Louis B. Garippo, Susan G. Feibus, Louis B. Garippo, Ltd., Chicago, for Louis Belpidio.

Michael J. Waller, Lake County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Anthony Peraica, Chicago, for the people.

Justice UNVERZAGT delivered the opinion of the court:

Defendant, Louis Belpedio, was charged by indictment with two counts of aggravated battery (Ill.Rev.Stat.1989, ch. 38, pars. 12-4(a), (b)(4)). The charges stemmed from an incident in which defendant punched Luke Massar in the face at the end of a touch-football game at Jewett Park in Deerfield, Illinois, on September 5, 1989. Following a bench trial on December 13, 1989, defendant was found guilty of aggravated battery as charged in the indictment. On January 31, 1990, following the denial of defendant's post-trial motion, the trial court sentenced defendant to terms of six months' incarceration in the county jail and 30 months' probation. The court also ordered defendant to perform 200 hours of community service, to undergo psychiatric counseling as directed by court services, and to make restitution to Massar in the amount of $924.37. Defendant appeals, contending that he was not proved guilty of aggravated battery beyond a reasonable doubt. We affirm.

On September 5, 1989, defendant and Massar were participants in an organized touch-football league game. The game was played according to the basic rules of flag football, although it was nevertheless a touch-football game. There was to be no blocking below the waist, no blocking on kickoffs, and 20-yard markers were used for first downs. It was refereed by two officials. Touching was allowed anywhere on the body with one hand, and such contact would end a play.

According to Edward C. Gozdecki, who officiated as a linesman at the game on September 5, the game was marred by unnecessary roughness, and one player had been ejected. About 10 minutes before the end of the game, Gozdecki and the other official, James Pinas, the backfield referee, warned both team captains that any more provocative conversation or physical conduct would result in a double forfeit of the game, that is, a loss for both teams.

Luke Massar, a 26-year-old accountant, testified at trial. Massar was 6 feet tall and weighed 210 pounds. Massar's team was losing, 21 to 6. Massar was a player for the offensive team and his primary task was blocking. When the game was nearly over, Massar ran toward the right boundary line to receive a pass. As he was running forward, he was looking backward, over his right shoulder, toward the quarterback; he was unable to see downfield in front of him. Upon receiving the ball, Massar turned in order to get across the first down marker. As he turned, Massar came into contact with defendant, whom Massar was surprised to find there.

Massar further testified that, after the initial contact, defendant grabbed Massar's shirt with both hands and was pushing against Massar's throat, using foul language. As defendant pushed Massar back, Massar pushed defendant by hitting defendant's shoulders solidly with both hands so that the players became separated. Then they began to walk towards each other. There was a referee a few yards away. Massar raised both his hands in an upward direction and looked at the referee inquisitively as if to say, "What's going on?" Massar then only recalled that he lost consciousness. He denied ever having hit defendant with his elbow.

Other testimony reveals that, at this point, Massar had been hit by defendant. Massar's injuries required medical treatment at Highland Park Hospital, where he received stitches to the left side of his lip, his nose and his eye. Massar suffered a broken nose which required corrective surgery and which remained permanently altered.

Massar's brother-in-law and teammate, 32-year old Scott Beinlich, testified that he was also playing on Massar's team on the date in question. Beinlich observed from the sideline that, when Massar caught the ball, defendant grabbed him in the upper chest, up by the neck. Massar broke free by pushing defendant away. Massar then stood in place and defendant came toward him. Massar put his hands up in the air and looked toward the referee. Defendant then struck Massar twice in the face: once in the jaw or mouth and once in the nose. Massar was knocked to the ground; he was "knocked out" and was temporarily disoriented as he got back up. His lip and his nose were split open. Prior to this incident, Beinlich had not observed any other contact between Massar and defendant. He did not see defendant swing and miss Massar.

Edward C. Gozdecki, a paid referee who was also employed as a schoolteacher, provided referee services to the Deerfield Park District. He officiated as a linesman, and his fellow referee, James Pinas, acted as the backfield judge. Gozdecki characterized the game as an "emotional contest" where there was a lot of bantering and "cheap shots." There was some pushing and shoving which was fairly normal in this kind of game. About 10 minutes before this incident, he and Pinas had warned the two teams of a possible double forfeit for impermissible conversation or roughness. Gozdecki was about 25 yards away to the left of Massar, while Pinas was about two yards to Massar's right at the time of the play.

When the quarterback released the ball, Gozdecki looked back toward him. On hearing a whistle blown by Pinas signalling the end of the play, Gozdecki then drew his attention to where the ball had been thrown; the ball was on the ground. He saw both Massar and defendant "jabbering." Gozdecki saw Massar throw an elbow but could not tell if contact had been made. He then threw down a flag, which indicated he was going to penalize both teams. Gozdecki ran toward the players. He observed Massar pushing defendant away from him with open palms. Gozdecki described the pushing as a "get out of my face type of thing." After a "pregnant pause," he observed defendant throw three punches, "left, right, left." Gozdecki thought the first punch missed Massar. The other two punches hit Massar's face, and he fell to the ground. Then the referees called the game. Massar, in a dazed condition, was led to the sideline.

James Pinas testified that, at the time of the incident, he was about six feet from Massar. Defendant was playing for the defense. He observed both Massar and defendant jump up for the ball. As they came down, Massar's elbow hit defendant's head. The elbow contact was a continuation of the attempt to catch the ball. After they both came down to the ground, both players attempted to get the ball. Defendant asked Massar what he thought he was doing. After some words were exchanged, the players began some "minor" pushing and shoving at each other with their hands. Both referees threw their flags. Pinas had just previously blown the whistle to signal the end of the play.

Pinas attempted to break up the altercation by going between the players and spreading them apart. Defendant threw a punch which did not make contact. Pinas then backed away. Then defendant punched Massar twice in the face, causing Massar to fall to the ground.

On cross-examination, Pinas stated that, although Massar's elbow hit defendant, it was not "thrown." Massar did not throw a punch at defendant during the exchange of words. Pinas said that Massar walked toward defendant, who was standing his ground. As Massar walked toward defendant, defendant punched Massar.

The 26-year-old defendant testified in his own behalf. He was 5 feet 10 inches tall and weighed 225 pounds. The incident occurred with just about a minute of play left, and defendant's team was winning. After the quarterback released the ball, defendant went toward Massar to tag him. As Massar caught the ball, defendant tagged him with his left hand on Massar's chest and his right hand on Massar's back. According to defendant, as Massar turned around, Massar hit defendant in the face with his elbow. As soon as defendant had touched Massar, the whistle was blown, indicating the play was dead. Defendant grabbed Massar by the shirt, saying, "Was that necessary?" Then Massar turned around and threw his right elbow against the side of defendant's head. Thereafter, defendant became "scared" and believed Massar was going to hit him. Massar pushed defendant and threw a left punch. Defendant was standing his ground. Massar's punch missed defendant. Defendant then punched Massar, but defendant believed the first punch might have missed Massar. Defendant said he punched Massar only once more. Defendant denied that any official came up to the two players to intervene.

Defendant also presented the testimony of two of his teammates: Anthony Belmonte, a lifelong friend of defendant, and William T. Hogan III. Their testimony agreed almost exactly with defendant's as to the essential points of the physical contact and the absence of an intervening referee.

After hearing closing arguments and after noting that the two referees were the most credible witnesses, the trial court found defendant guilty of two counts of aggravated battery.

On appeal, defendant challenges the sufficiency of the evidence and argues that he raised a claim of self-defense; that the State failed to establish beyond a reasonable doubt that Massar was not the aggressor and that he had not, in good faith, withdrawn from physical contact and communicated such withdrawal to defendant. Defendant acknowledges that there was conflicting evidence. The State argues that defendant failed to establish his affirmative defense and that the State proved beyond a reasonable doubt...