People v. Hess
| Decision Date | 21 November 2014 |
| Docket Number | NO. 5-12-0430,5-12-0430 |
| Citation | 2014 IL App (5th) 120430 -U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRANDON HESS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE
Decision filed 11/21/14. The text of this decision may be changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of the same.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Effingham County.
¶ 1 Held: In a jury trial on a charge of violation of an order of protection, the defendant was not denied a fair trial as a result of the circuit court's failure to provide the jury with written instructions concerning the presumption of innocence and the State's burden of proof where the totality of the circumstances show that the jury otherwise understood and accepted these concepts. The circuit court did not abuse its discretion in allowing the State to impeach the defendant with a prior conviction for disorderly conduct stemming from a false report for an ambulance. The defendant's presentencing report established the trial court's basis for evaluating the defendant's financial resources and future ability to pay a $200 fine.
¶ 2 A jury found the defendant, Brandon J. Hess, guilty of the offense of violation of an order of protection pursuant to section 12-30(a)(1) of the Criminal Code of 1961 (720 ILCS 5/12-30(a)(1) (West 2010)). The defendant appeals his conviction and sentenceand argues that the circuit court committed reversible error by failing to instruct the jury concerning the presumption of innocence and the State's burden of proof and, in addition, by improperly allowing the State to use a prior felony disorderly conduct conviction as impeachment evidence. The defendant also challenges the circuit court's imposition of a $200 domestic battery fine. Finally, the defendant argues that he is entitled to a $5-per-day credit for the days he spent in custody prior to sentencing, and the State confesses error with respect to this $5-per-day credit. We modify the defendant's sentence to reflect the $5-per-day credit, and for the reasons that follow, we affirm all other aspects of the defendant's conviction and sentence.
¶ 4 The charge of violation of an order of protection stems from a telephone call the defendant placed from the Effingham County jail to the victim, Tiffany Becker. In the past, the defendant and Becker had been involved in a romantic relationship for approximately two years, and they had an 11-month-old son together. At the time of the telephone call, Becker was a person who was protected under an order of protection that prohibited the defendant from contacting her through telephone calls. The State introduced the terms of the order of protection at the jury trial, and Becker told the jury about the defendant's violation of the order.
¶ 5 Becker told the jury that on April 1, 2010, she was grocery shopping with her friend, Sandra Huston, when her cellular phone began to ring. She answered her phone and listened to a recorded message that informed her that the phone call was coming from the Effingham County jail. The recording included a segment in which the person callingcould identify himself, but the identification portion of the recording contained "some weird noises."
¶ 6 Becker believed that the call was coming from the defendant, and she told the jury that she accepted the call because the defendant had threatened her in the past; he told her that if she did not accept his calls he would make her "life a living hell" and would make sure she never saw their son again. When she accepted the call, she recognized the defendant's voice speaking from the other end of the connection. Becker told the defendant that she was "tired of all this" and that she was going to hang up. Becker's friend Huston, however, encouraged her to keep the defendant on the phone while they drove to the Effingham County sheriff's office.
¶ 7 Becker and Huston proceeded to the sheriff's office where they met Officer Kuhns in the lobby of the sheriff's office/county jail. Officer Kuhns listened to the conversation on Becker's phone for approximately one minute and recognized the defendant's voice. He took Becker's phone and tried to interrupt the defendant's talking by stating "Brandon." The defendant cursed and warned him that he "better stay out of it." However, when the officer identified himself as Sergeant Kuhns with the sheriff's office, the defendant stopped talking. Officer Kuhns told the defendant that he was walking back to the jail to speak with him. The defendant replied okay and hung up. Officer Kuhns walked to the defendant's jail cell and issued him a written citation for violating the order of protection.
¶ 8 The State's evidence at the trial included a recording made of portions of the defendant's telephone conversation with Becker that he placed from the jail's telephone.
The State also presented testimony from Deputy Travis Monnet who told the jury that he had previously served the defendant with the order of protection on November 19, 2009, at 11:40 a.m.
¶ 9 The defendant testified at the trial. He admitted that he placed two telephone calls to Becker on April 1, 2010, and he told the jury that he placed the telephone calls because "she had told me to." He admitted to being on the telephone with Becker for approximately 17 minutes. He told the jury that he was not aware that there was an active order of protection at the time he called Becker. He testified that he did not remember being served with the order of protection because he had been huffing paint for three weeks and did not remember much from that time period.
¶ 10 At the conclusion of the trial, the jury found the defendant guilty of violating the order of protection. The circuit court subsequently sentenced the defendant to four years' imprisonment in the Illinois Department of Corrections. The defendant appealed his conviction and sentence and raised an issue that concerned a claim of ineffective assistance of counsel. On May 9, 2012, we entered an order pursuant to Illinois Supreme Court Rule 23 (eff. July 1, 2011), remanding the case to the circuit court for the limited purpose of allowing the circuit court to conduct a preliminary examination concerning the factual basis of the defendant's claim of ineffective assistance of counsel.
¶ 11 On remand, the circuit court conducted the preliminary examination and determined that there was no factual basis for a finding that the defendant's trial counsel was ineffective. This appeal ensued. In the present appeal, the defendant raises issues that concern (I) the circuit court's jury instructions, (II) a ruling by the circuit court thatpermitted the State to use a prior conviction for disorderly conduct to impeach him, and (III) the circuit court's assessment of a $200 domestic violence fine.
¶ 14 Lack of a Jury Instruction Concerning the State's Burden of Proof and the
¶ 15 The first argument the defendant raises in challenging his conviction is that the circuit court's jury instructions did not include an instruction concerning the State's burden of proof and the presumption of innocence. The defendant acknowledges that his attorney did not raise an issue or an objection during the trial court proceeding with respect to the missing jury instruction. He argues, however, that the error amounted to plain error under Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967), which justifies reversal of his conviction even though defense counsel did not preserve the error.
¶ 16 The plain error doctrine allows a reviewing court to consider unpreserved error when "(1) a clear or obvious error occurs and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurs and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410-11 (2007).
¶ 17 "[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime withwhich he is charged." In re Winship, 397 U.S. 358, 364 (1970). "In a criminal case, fundamental fairness requires that the trial court fully and properly instruct the jury on the elements of the offense, the burden of proof, and the presumption of innocence." People v. Pierce, 226 Ill. 2d 470, 475, 877 N.E.2d 408, 410 (2007). Accordingly, in the present case, we believe that a trial court's failure to instruct a jury in a criminal trial concerning the State's burden of proof and the defendant's presumption of innocence is an issue that could affect the fairness of the defendant's trial and the integrity of the judicial process. Therefore, we will address the merits of the defendant's argument "to determine whether [the failure to give a written instruction] denied defendant a fair trial." People v. Layhew, 139 Ill. 2d 476, 485-86, 564 N.E.2d 1232, 1236 (1990).
¶ 18 Illinois Pattern Jury Instructions, Criminal, No. 2.03 (4th ed. Supp. 2009), (hereinafter, IPI Criminal 4th) instructs a jury as follows:
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