People v. Dickey

• Decision Date: 16 November 2011
• Docket Number: No. 3–10–0397.,3–10–0397.
• Citation: 961 N.E.2d 816,356 Ill.Dec. 427,2011 IL App (3d) 100397
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Roy DICKEY, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (3d) 100397

356 Ill.Dec. 427

961 N.E.2d 816

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Roy DICKEY, Defendant–Appellant.

No. 3–10–0397.

Appellate Court of Illinois, Third District.

Nov. 16, 2011.

Rachel J. Hess (Court-appointed), Law Office of Rachel J. Hess, St. Charles, for Roy Dickey.

Brian Towne, State's Attorney (Terry A. Mertel, Deputy Director, Richard T. Leonard, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 The State charged defendant, Roy Dickey, with aggravated battery in connection with a bar fight. Defendant claimed he acted in self-defense. Following a bench trial, the trial court convicted him of aggravated battery then sentenced him to probation and 30 days in county jail and ordered him to make restitution to the victim. Defendant appeals his conviction and sentence claiming: (1) the State failed to prove beyond a reasonable doubt that defendant did not act in self-defense; (2) the trial court did not consider all of the evidence before deciding the case; (3) the trial court abused its discretion when sentencing the him to 30 days in county jail; (4) the trial court's order requiring him to pay $5,854.40 in restitution was improper; and (5) the trial court failed to grant him $5 credit toward his fines for each day he spent in pretrial custody.

¶ 2 For the reasons that follow, the conviction and the 30–day sentence are affirmed; the restitution order is vacated, and the cause is remanded for further proceedings.

¶ 3 FACTS

¶ 4 The charges arose from an altercation at the Two Fools bar in La Salle on August 14, 2009. A number of witnesses testified about what occurred at the bar. David Gruenwald testified that while he was at the bar, Gary Masters approached him. Gruenwald said that he and Masters spoke briefly inside the bar before going outside to smoke. They went outside to an alley where there were already two men and Gruenwald said, “What's up guys?” One of the two men then punched Gruenwald twice and threw him to the ground. At this point, all three of the men began hitting and kicking him. He did not know the name of the first man to hit him that night, but he identified that man as the defendant during trial. Gruenwald claimed he did nothing to provoke the attack and that he did not throw any punches. He said the incident seemed to last about 30 minutes and that it ended when he was picked up by an ambulance.

¶ 5 Courtney Lijewski testified that she was working at Two Fools as a bartender on the night of the fight. While she was talking with James Scheri, someone informed her that there were men outside arguing. Scheri and an off-duty doorman went out to see what was going on. Lucas Schweickert went out shortly after Scheri and the doorman. The doorman returned and told Lijewski to call the police because the people were fighting. While calling the police, she headed outside. Once outside she saw four men, one of whom was on the ground. She also saw one of the other men punching him. Once the three men found out she was on the phone with the police, they left. Lijewski only observed the fight for about 20 seconds. After the men left, she recognized the man on the ground as Gruenwald.

¶ 6 James Scheri testified that he went outside with Lijewski. He could hear people down the alley but could not see who the people were. He saw three dark silhouettes standing and could see and hear them punching and kicking the man on the ground.

¶ 7 Lucas Schweickert testified that he was at the bar with Scheri. He said they went out to have a cigarette and saw three men punching and kicking another man, who was on the ground. They tried to go toward the fight but someone threatened them. Schweickert initially told the police that he saw five or six men punching another man and knocking him to the ground. In another statement to the police, he reported there were two guys taking turns hitting the victim.

¶ 8 Officer Martin testified that he responded to the report of a fight. When Martin arrived defendant had a large amount of blood on his hands and shirt. The defendant told Martin that he fell down and did not need medical treatment. After further inquiry, defendant told Martin that he was struck in the face with a beer bottle while in the bar.

¶ 9 Gary Masters testified that he and Gruenwald went outside to talk about a debt Gruenwald owed him. After they had been outside for a couple of minutes, the defendant joined them. According to Masters, Gruenwald tried to hit Masters but Masters ducked, causing Gruenwald to hit defendant in the back of the head. In response, defendant grabbed Gruenwald and “whipped him” by tackling Gruenwald to the ground and then hitting him five or six times. Masters then pulled defendant off of Gruenwald.

¶ 10 Defendant testified that he approached Masters and Gruenwald while they were talking outside the bar. When he turned to leave, he was punched in the back of the head. He tackled Gruenwald and hit him in the face five or six times and possibly in the stomach, but he never kicked him.

¶ 11 Prior to announcing his ruling, the judge referred to Lijewski, Scheri and Schweickert as the “independents,” finding they had no “motive, bias, prejudice, or any interest in this particular matter,” as opposed to Masters, Gruenwald and defendant. The judge indicated that the description of the events by the “independents” was the correct version of what happened. He found that while Gruenwald probably started the fight, defendant's actions in punching and kicking Gruenwald while he was on the ground, and the fact that defendant had to be pulled off of Gruenwald by Masters, showed that he had gone beyond self-defense in his actions. The trial court found defendant guilty and sentenced him to probation and 30 days in county jail and ordered him to make restitution. Following the denial of his posttrial motion, defendant filed this appeal.

¶ 12 ANALYSIS

¶ 13 I. Sufficiency of the Evidence

¶ 14 Defendant argues the State failed to adduce evidence sufficient to prove every element of the offense charged beyond a reasonable doubt. When entertaining a sufficiency of the evidence argument on appeal, the court will only overturn a guilty verdict if, after viewing the evidence in the light most favorable to the State, we determine that no “ ‘rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” People v. Collins, 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Defendant admitted he struck Gruenwald; he testified that he acted in self-defense. His argument is that the State failed to prove beyond a reasonable doubt that he did not act in self-defense. Before the State must prove beyond a reasonable doubt that defendant did not act in self-defense, “the defendant must establish some evidence of each of the following elements: (1) force is threatened against a person; (2) the person threatened is not the aggressor; (3) the danger of harm was imminent; (4) the threatened force was unlawful; (5) he actually and subjectively believed a danger existed which required the use of the force applied; and (6) his beliefs were objectively reasonable.” People v. Jeffries, 164 Ill.2d 104, 127–28, 207 Ill.Dec. 21, 646 N.E.2d 587 (1995). The State does not need to disprove each element; it is sufficient to disprove any one element beyond a reasonable doubt. Id. at 128, 207 Ill.Dec. 21, 646 N.E.2d 587.

¶ 15 The trial court believed that Gruenwald probably started the fight, but found defendant did not act in self-defense as the State disproved the fifth and sixth elements of self-defense. Viewing the evidence in the light most favorable to the State, it is clear that defendant tackled Gruenwald to the ground and hit and kicked him while he was on the ground. Ultimately, defendant had to be pulled off of the victim. The court specifically found the testimony of Lijewski, Scheri and Schweickert to be the correct version of what happened. We find that no rational fact finder could find that defendant reasonably believed that the victim, who was lying on the ground, created a danger to the defendant requiring the continued application of force. Therefore, the evidence is sufficient to prove defendant guilty beyond a reasonable doubt.

¶ 16 II. Failure to Consider All the Evidence

¶ 17 Defendant argues that the trial court failed to consider all the evidence before reaching a verdict. He did not raise this issue in an objection or in his posttrial motion. In his brief to this court, he did not argue that this issue should be reviewed for plain error. The State argues that defendant forfeited this issue by not raising it with the trial court as an objection or in his posttrial motion.

[356 Ill.Dec. 432] ¶ 18 A defendant who fails to both object to an error at trial and in a posttrial motion forfeits that issue on appeal. People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). Appropriate issues may still be reviewed on appeal for plain error. Id. However, a defendant who fails to argue for plain-error review in either his opening or reply brief forfeits any plain-error review by this court. People v. Moss, 205 Ill.2d 139, 168, 275 Ill.Dec. 444, 792 N.E.2d 1217 (2001); People v. Williams, 193 Ill.2d 306, 347–48, 250 Ill.Dec. 692, 739 N.E.2d 455 (2000). The State argues that defendant failed to argue for plain-error review in his opening brief; he also failed to file a reply brief. This issue is forfeited. We do not review it.

¶ 19 III. 30 Days in the County Jail

¶ 20 Defendant argues that the portion of his sentence requiring him to spend 30 days in county jail was excessive and manifestly disproportionate to the seriousness of the crime. When imposing a sentence, the trial court enjoys broad...