People v. Parrott

• Decision Date: 05 October 2017
• Docket Number: Appeal No. 3-15-0545
• Citation: 2017 IL App (3d) 150545,89 N.E.3d 987
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Randall W. PARROTT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (3d) 150545

89 N.E.3d 987

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

v.Randall W. PARROTT, Defendant-Appellant.

Appeal No. 3-15-0545

Appellate Court of Illinois, Third District.

Opinion filed October 5, 2017

Michael J. Pelletier, Peter A. Carusona, and Mark D. Fisher, of State Appellate Defender's Office, of Ottawa, for appellant.

Meeghan N. Lee, State's Attorney, of Aledo (Patrick Delfino, Lawrence M. Bauer, and Jasmine Morton, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE O'BRIENdelivered the judgment of the court, with opinion.

¶ 1Defendant, Randall W. Parrott, appeals his conviction for domestic battery, arguing that (1)the State failed to disprove his affirmative defense and (2)he was denied his right to confront his accuser.We affirm.

¶ 2 FACTS

¶ 3Defendant was charged with four counts of domestic battery ( 720 ILCS 5/12-3.2(a)(1)(West 2014)).The counts alleged that defendant knowingly made physical contact of an insulting nature with E.S., R.V., G.V., and L.S.

¶ 4The case proceeded to a bench trial.Defendant raised the affirmative defense of reasonable parental discipline.The State moved for admittance of hearsay statements under section 115-10 of the Code of Criminal Procedure of 1963(Code).725 ILCS 5/115-10(West 2014).Defendant's attorney stated, "It specifically states domestic battery [against a child under the age of] 13.*** [I]f they testify, it appears that the out-of-court statement can come in as well."The court asked defense counsel if he was contesting the hearsay evidence.Defense counsel responded, "Subject to them testifying, no."The State said, "[T]he children will be here to testify."

¶ 5Kathy Olsen testified that she was the principal at Mercer County Intermediate School.In September 2014, R.V. was 10 years old and got in trouble for throwing paper out of the window of the school bus.Olsen approached R.V. in his classroom and spoke with him outside the classroom door.Olsen gave R.V. a disciplinary card and told him he needed to have it signed by his parents.R.V. took the card and went back into the classroom.Olsen later got a call from R.V.'s teacher telling her that R.V. was crawling under desks and crying.Olsen took R.V. to her office.R.V. was "distraught" and asked her not to call his parents.Olsen stated:

"I basically just said, you know, this is customary, this is what we need to do, and why are you so opposed to me calling home?And at that point he started to tell that, you know, he gets beat with a belt at home and that he would get in big trouble.And then from there it proceeded to other things such as being denied food.He had missed the previous day, so then he recounted what had happened the previous day as far as several of the boys getting whipped because of the dispute with eating a Subway sandwich or something that was supposedly [defendant's]."

R.V. told Olsen that L.S. and E.S. were hit with the belt six or seven times.Olsen reported the incident to the Department of Children and Family Services(DCFS).

¶ 6 Deputy Brian Evans testified that he was a patrol officer with the Mercer County sheriff's department.He received a call from DCFS investigator Penny Blaser about possible child abuse.Evans accompanied Blaser to meet with defendant.Defendant discussed his discipline of the children with Evans and Blaser.Evans stated: "[Defendant said] that he grounds them, he stand them in the corner, and he makes them do the ‘dead cockroach’ is how he explained it.And then when [Blaser] said that the children *** told her that [defendant] had whipped them the night before, he said I used to whip them with a belt, I no longer do that."

¶ 7 Evans then checked the children for injuries.E.S. was six years old and had two red welts about 21/2 inches long on the upper portion of the back of his legs.Evans said it was "about the width of a belt in [his] opinion."Blaser took photos of the injuries, which were admitted into evidence.E.S. told Evans that he had been whipped with a belt the night before "for eating a biscuit."

¶ 8 Evans examined G.V., who was four years old, but did not notice any welts on her.R.V. told Evans he had been whipped with a belt the night before.L.S., who was eight years old, also told Evans he had been whipped with a belt the night before.R.V. retrieved the belt used for the whipping.

¶ 9 Blaser testified that she went to the school to meet with Olsen and interview R.V. R.V. told Blaser, "that everybody gets spanked at their house, everybody gets it with a belt, that he was scared to go home.*** [E.S.] got it the night before with the belt because he ate [defendant's] biscuit and he blamed it on [L.S.], so [defendant] took the belt to [E.S.]" Blaser interviewed all the children together, and they all said they get hit with a belt when they get in trouble.E.S. said "he had gotten hit the night before because he ate [defendant's] biscuit."

¶ 10 E.S. testified that defendant never hit him or his siblings with a belt.Defendant did not cross-examine E.S.

¶ 11The court granted defendant's motion for directed verdict with regard to count III, regarding G.V.

¶ 12Defendant did not present any evidence.

¶ 13The court found defendant not guilty of counts II and IV, regarding, R.V. and L.S.However, the court found defendant guilty of count I.Specifically, the court stated:

"With respect to Count 1 [E.S.], the statements attributed to the minor are much more specific in the Court's mind than on the other incidents.The Court found the deputy very credible in his testimony as far as what he did, what he saw and what he was told.And I believe he was told by the minor what he says he was told.He seemed very straight forward and forthright in his testimony.Everything about the minor in that seems consistent up until the testimony of the minor today.But we have a picture here and as I sit here today, I'm unaware of any law that says if a witness denies something at trial, that that in and of itself results in a not guilty.Maybe there's some law out there that says that, but I'm unaware of.

But I think based upon the consistency of the statements I heard, particular the deputy's testimony about what he was told, and the pictures, which appear consistent with that, I do think the State's met their burden on Count 1 and the Defendant is found guilty of Count 1 as it relates to [E.S.]"

Defense counsel asked the court for clarification regarding its finding on the affirmative defense and whether it was reasonable discipline.The court said, "Given the nature of the discipline, nature of the alleged infraction, not reasonable.I see marks.*** And I would go with [the State's] argument and I'm somewhat accepting his statement.*** This was a whipping with a belt."

¶ 14 On June 30, 2015, defendant was sentenced to 12 months' probation and 60 days' jail time, with 8 days already served and the rest stayed pending compliance.On July 28, 2015, 28 days after he was sentenced, defendant appeared in court and stated he wanted to appeal.The record does not contain a report of proceedings for that day, but the docket sheet states, "Def by PD Dalton.State by ASA Lee.[C]ause on as walk-in.PD Dalton reports the Def wishes to appeal.Granted.Court orders: Clerk to file an appeal.Appellate Public Defender to be appointed."However, the notice of appeal was not actually filed until July 31, 2015, one day past the 30-day filed deadline.No motion for leave to file late notice of appeal was filed within the six-month time period.

¶ 15 ANALYSIS

¶ 16 On appeal, defendant argues that (1)he was not proved guilty beyond a reasonable doubt as the State failed to disprove the affirmative defense of reasonable parental discipline of E.S. and (2)he was denied his sixth amendment right to confront his accuser where E.S. testified that defendant never hit him, but the court found him guilty based on E.S.'s previous hearsay statements.The State argues that we do not have jurisdiction to consider this case.Beginning with a consideration of our jurisdiction, we examine each of the arguments in turn.

¶ 17 I. Jurisdiction

¶ 18 At the outset, the State challenges our jurisdiction to consider this case as the notice of appeal was filed by the clerk one day late.As the notice of appeal was late, the State argues defendant needed to have filed a motion for leave to file late notice of appeal for us to have jurisdiction.Defendant argues that we have jurisdiction because the late filing of the notice of appeal was the clerk's fault, not defendant's.Defendant notes that he told the courthe wanted to appeal 28 days after he was sentenced, 2 days before the deadline to file a notice of appeal in his case.That same day, the court ordered the clerk to file a notice of appeal, but the clerk did not do so until one day after the filing deadline, 31 days after defendant was sentenced.Both parties cite People v. Sanders , 40 Ill. 2d 458, 240 N.E.2d 627(1968), in support of their positions.Because we find that defendant asked to appeal within the time frame and the clerk failed to file the notice of appeal on time, we find that we have jurisdiction to consider the case.

¶ 19 In Sanders , the defendant, within 30 days of sentencing, asked the circuit court if he could appeal his case and asked for a transcript.Id. at 459-60, 240 N.E.2d 627.The record did not show that the court responded to these requests, and no action was taken regarding defendant's appeal.Id. at 460, 240 N.E.2d 627.The defendant then filed a motion for leave to file late notice of appeal, which was denied by the appellate court.Id. at 459, 240 N.E.2d 627.Our supreme court found that the appellate court should have granted defendant's motion for leave to file late notice of appeal.Id. at 462-63, 240 N.E.2d 627.In doing so, the court stated:

"It is our opinion that under the circumstances here present the defendant had in open court indicated

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