People v. Johnson
| Decision Date | 10 July 1992 |
| Docket Number | No. 2-89-1372,2-89-1372 |
| Citation | 595 N.E.2d 1381,172 Ill.Dec. 711,231 Ill.App.3d 412 |
| Parties | , 172 Ill.Dec. 711 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Retha JOHNSON, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
G. Joseph Weller, Deputy Defender, Beth Katz, Office of State Appellate Defender, Kathleen T. Zellner, Kathleen T. Zellner and Associates, Naperville, James P. Palermini, Huck, Bouma, Martin & Charlton, Glen Ellyn, Douglas Johnson, argued, for Retha Johnson.
Michael J. Waller, Lake County State's Atty., William L. Browers, Deputy Director State's Attys. Appellate Prosecutor, John X. Breslin, Deputy Dir., State's Atty. Aplt. Prosecutor, Ottawa, Norbert J. Goetten, Dir. State's Atty. Prosecutor, Springfield, Joseph Ciaccio, Springfield, J. Paul Hoffman, Ottowa, argued, for the People.
Defendant, Retha Johnson, appeals her conviction and sentence for abuse of a long-term care facility resident (Ill.Rev.Stat.1987, ch. 38, par. 12-19(a)). She contends on appeal that (1) she was not proved guilty beyond a reasonable doubt where the evidence did not establish that an actual physical injury occurred; (2) count III charging abuse should have been dismissed because (a) it did not sufficiently set forth the nature and elements of the offense; (b) it improperly joined several distinct offenses in a single count; and (c) section 12-19 of the Criminal Code of 1961 (the Code) (Ill.Rev.Stat.1987, ch. 38, par. 12-19(a)) is unconstitutional.
The defendant was charged by indictment on July 7, 1989, in the circuit court of Lake County, with seven counts of aggravated battery, two counts of intimidation, and one count of abuse of a long-term care facility resident.
Prior to trial, the defendant filed several motions to dismiss, including a motion to dismiss count III of the indictment charging abuse of a long-term care facility resident on the ground that it did not set forth the nature and elements of the offense charged with sufficient specificity and on the ground that section 12-19 of the Code, which proscribed such abuse, is unconstitutional. The circuit court denied the defendant's motions and the State was permitted, over the defendant's objections, to amend count III of the indictment by deleting one of the victims' names and replacing the conjunctive "and," which linked the victims' names, with the disjunctive "or." On the State's motion, count IV of the indictment was nol-prossed.
Following a bench trial, the defendant was convicted of two counts of aggravated battery (Cyrus Cranor and Ben August) and one count of abuse of a long-term care facility resident (Cyrus Cranor and Ben August). She was acquitted of counts VI through X of the indictment. The defendant was sentenced to 30 months' probation, including one year's intensive probation, on her conviction for abuse of a long-term care facility resident.
Winchester House is a facility operated by Lake County in Libertyville. Winchester House provides skilled and intermediate long-term care for its 359 elderly and chronically ill residents. Many of the residents are either physically or mentally unable to care for themselves, and nurses' aides employed by Winchester House help feed them, clean them, toilet them, change their clothes and put them to bed at night. Some of the residents are difficult to work with and resist the aides' efforts in performing those tasks.
The defendant, Retha Johnson, was employed at Winchester House as a certified nurse's aide from June 23, 1986, until February 7, 1989, when she was discharged as a result of alleged incidents of abuse involving eight of the residents. There was testimony during the bench trial concerning seven of these residents. (The State deleted one resident's name prior to trial.) Inasmuch as the defendant was acquitted of the charges relating to most of those residents, however, the following facts relate only to the offenses of which she was convicted.
Cyrus Cranor, an elderly resident of Winchester House, was a difficult patient whose mind "came and went." He frequently verbalized his hatred for black people and often hurled racial slurs at the (female) defendant such as, "You black son of a bitch." Sometimes, while the defendant was giving care to Cranor, he would strike out at her and try to hit her with his fist or scratch her or try to bite her.
Philip Buchanan, a senior nurse's aide and close friend of the defendant's, testified that the defendant would sometimes lose her temper and swear at Cranor. He observed the defendant hold Cranor's arms and slap his face on several unspecified occasions. Buchanan observed scratches on Cranor's face one or two times, and he believed that one scratch was caused by the defendant although he did not report it.
Bonnie Jones, another nurse's aide, corroborated both Cranor's racial slurs and the slapping incidents. Jones also testified that she and the defendant were attempting to put Cranor on a "Rollamode" and that Cranor refused to stand up. The defendant then yanked him up, and Cranor bumped his head on a cement wall, and exclaimed " " Jones also testified that the defendant "would walk by [Cranor] and slap him upside of the head, hit him, just whatever, if he was sitting in a chair."
Diane Mota, a nurse's aide at Winchester House, testified similarly that the defendant had slapped Cranor. She related that Cranor was combative with the nurse's aides, and he often struggled with them by swinging his arms as they tried to put him to bed. Mota testified that on an unspecified occasion, the defendant punched Cranor in the chest and slapped him in the face while trying to put him to bed.
Diane Mota testified that, one day in late December 1989, she brought a sack lunch to work that included jalapeno peppers. The defendant asked Mota for one of the peppers. Mota testified that the defendant then squeezed some juice from the pepper onto a spoon and fed it to Cranor. Mota testified that Cranor's face turned red, his nose started running in reaction to the pepper juice, and he put his hands up over his forehead and tried not to look at the defendant.
Patricya Merchant testified that on an occasion in 1988 she saw the defendant put ground pepper from a paper packet into Cranor's mouth. In response, Cranor spit and thrashed about, called the defendant "nigger," and said, "Cut that out, cut that out." Another nurse's aide, Angela Spiller, saw the defendant place ground pepper in Cranor's mouth, which caused him to spit and gag. Another aide also was present during this incident which occurred in June or July 1987.
Sharmaine Brown testified that the defendant would "clonk" Cranor on the upper side of his head with her finger by snapping the middle finger away from the thumb. Brown testified that Cranor would call people names such as "nigger" and make comments to them about their being "pretty little black girls." Brown could not remember the date or month in which she observed the defendant "clonk" Cranor but stated that it would occur whenever she worked with the defendant. The "clonking" took place in the bathroom "when we would be pottying the patients and stuff." Brown testified she often observed the defendant slap Cyrus Cranor "upside of the head" while they were in the bathroom. Brown worked in Cranor's unit from 1985 to 1987.
Patricya Merchant testified that she observed the defendant bend Cyrus Cranor's fingers backward toward his wrist. Cranor said, Merchant testified about "range-of-motion" therapy which involved bending a patient's fingers into backward and forward positions and from side to side in order to prevent the hands from becoming malformed. Merchant stated that when she observed the defendant bending Cranor's fingers, the defendant's actions were "very similar" to range-of-motion therapy, which therapy was part of the defendant's duties. Merchant stated that when Cranor hollered, the defendant laughed first and then stopped bending his fingers.
Another Winchester House employee, Patricia Sikula, testified that in January 1989 the defendant verbally abused Cyrus Cranor and twisted his nose while they were in the bathroom. At the time, Cranor was saying to the defendant, " Sikula reported these incidents to the nurse and the senior nurse's aide.
Ben August, the other Winchester House resident whom defendant was accused and convicted of abusing, was described by Diane Mota as an elderly man who was "halfway blind" and had no legs but good use of his arms. Patricia Sikula stated that Ben August had both legs amputated right below the knees and that he is blind. She described him as very old and "down below he's sore, and when you touch him there, it's just painful." She stated Ben August is generally cooperative if you take the time to explain to him what you are doing before you do it. Bonnie Jones testified that on February 2, 1989, while in the same room with the defendant, she observed defendant and Pat Sikula working on Ben August. She heard a slap, and Pat later told her that the defendant slapped Ben August.
Diane Mota testified similarly that you have to tell Ben August what you are going to do before you do it so that you do not agitate him. On one occasion, she observed the defendant, without telling Ben August anything, begin to work on him. He became combative, "just swinging, you know, trying to hit her." The defendant grabbed both of his hands, crossed his arms so that his closed fists rested on each of his shoulders, and said "if you don't knock it off I'm going to break your fucking arms off."
The defendant took the stand in her own defense, admitting during her...
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