People v. Taher

• Decision Date: 03 May 2002
• Docket Number: No. 1-01-0048.,1-01-0048.
• Citation: 264 Ill.Dec. 184,769 N.E.2d 1021,329 Ill. App.3d 1007
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sultan TAHER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

769 N.E.2d 1021

329 Ill. App.3d 1007

264 Ill.Dec. 184

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sultan TAHER, Defendant-Appellant.

No. 1-01-0048.

Appellate Court of Illinois, First District, Fifth Division.

May 3, 2002.

Richard M. Goldwasser, Law Office of Richard M. Goldwasser, Chicago, for appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Mary Boland, Carrie Strobel), for appellee.

Justice GREIMAN delivered the opinion of the court:

At the conclusion of a bench trial, the defendant, Sultan Taher, was convicted of domestic battery pursuant to section 12-3.2(a)(2) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-3.2(a)(2)(West 2000)). Defendant was sentenced to 18 months of conditional discharge and 180 days imprisonment, subject to remitter. Additionally, defendant was fined $800 and the court extended a previously entered order of protection prohibiting defendant from having contact with his two children during the 18-month period of conditional discharge.

The issues presently before the court are as follows: (1) whether the statute under which defendant was convicted is unconstitutionally vague; (2) whether the statute under which defendant was convicted is unconstitutionally broad; (3) whether defendant was proven guilty beyond a reasonable doubt; and (4) whether the court erred when it entered and continued the order of protection prohibiting defendant from having any contact with his children.

On July 31, 2000, Sabah Taher filed a misdemeanor complaint for domestic battery against her husband, the defendant, Sultan Taher. The complaint alleged that defendant violated section 12-3.2(a)(2) of the Criminal Code when he knowingly, without legal justification, made physical contact of an insulting or provoking nature with his wife. 720 ILCS 5/12-3.2(a)(2)(West 2000).

At trial, Sabah testified that early in the day on July 31, 2000, she had an argument with defendant, during which defendant hit her. Sabah stated that defendant left the house shortly after the argument and that she did not call the police because she was afraid.

Sabah testified that around 5:30 p.m. she was at home with her two young children, who were both asleep. According to Sabah's testimony, she had a headache and decided to lie down in her bedroom. When defendant returned to the house, Sabah stated that he entered their bedroom screaming at her to get him a cup of Pepsi. Sabah testified that she told defendant she had a headache and asked if he could get the Pepsi himself. Sabah stated that defendant then grabbed both of her arms, turned her around, and threw her onto the floor. Sabah testified that she was in great pain when her back hit the floor. Defendant then forced his foot into Sabah's mouth and told her to kiss his foot and get him the Pepsi. Sabah testified that defendant's foot remained in her mouth for a few seconds and that he turned his foot while it was in her mouth. After removing his foot from her mouth, Sabah testified that she remained on the floor for approximately two minutes while defendant called her various degrading names in both English and Arabic.

Sabah testified that when she rose from the floor she tried to call her family, but she could not because defendant had unplugged the phones from the wall and locked them in his briefcase. Further, Sabah stated that she could not leave the house because all of the doors in her house require a key to get either in or out and defendant had locked the house keys in his briefcase. Later in the evening, defendant plugged in the phones and Sabah called her family who, in turn, called the police. Lastly, Sabah testified that she did not go to the emergency room.

Defendant testified that when he came home his family was sleeping. Defendant then stated that he attempted to wake his wife so that she could eat the dinner that he brought home. According to defendant, he stood at the left side of the bed, called his wife's name, and tickled her stomach in an attempt to wake her. Defendant stated that apparently Sabah was still angry from the earlier fight and showed her anger by swinging her right arm across her body, scratching defendant, and then falling out of bed. Defendant testified that Sabah fell about 18 inches from the bed to the ground and that he asked her if she was hurt. In response, defendant stated that his wife called him derogatory names and said "f—off" at least 10 times. Defendant stated that he did not want the fight to progress further so he left his wife on the ground and walked into the living room.

Defendant denied unplugging the phones and taking the house keys and also stated that Sabah could have left the house at any time. In fact, defendant testified that Sabah began calling him names while she packed her clothes and announced that she was finally going to leave him, however, she remained at home. A few hours after the fight, defendant stated that he recalled Sabah talking on the phone with her mother for about 45 minutes, then, unexpectedly, the police knocked on the front door.

According to the testimony of Officer Peter Hennessy, who testified on behalf of the defendant, he arrived at defendant's house at approximately 9 p.m. Hennessy stated that when he arrived at the house there was no physical evidence to indicate that there had been a disturbance. Hennessy further testified that he remembered interviewing Sabah and her stating that defendant threw her out of bed and forced his foot into her mouth; however, he noticed no sign of physical injury.

After closing arguments, the trial court found defendant guilty of domestic battery. Defendant then filed a motion to reconsider, which was subsequently denied by the trial court.

At the aggravation stage of the sentencing hearing, the prosecution stated that if Sabah testified she would state that defendant had been abusing her for four years and that previously she never had the courage to call the police. Further, the State informed the trial court that, in violation of the order of protection, defendant's relatives contacted Sabah.

In mitigation, the defense stated that this case involves touching in an insulting manner, rather than bodily harm. Further, defense counsel informed the trial court that defendant does not have any prior convictions. Defense counsel stated that for the past four years defendant has been employed as a respiratory therapist and is currently working at two local hospitals. Defendant pays Sabah $950 per month in support.

At the conclusion of the sentencing hearing, the trial court placed defendant on conditional discharge through May 29, 2002. Defendant was also sentenced to 180 days incarceration, subject to remitter, and was fined $800. The trial court required defendant to attend counseling sessions for domestic violence. Lastly, the order of protection was ordered to remain in full force and effect through May 29, 2002. Defendant appeals.

Whether a statute is constitutional is a matter of law, and, therefore, the standard of review is de novo. People v. Fisher, 184 Ill.2d 441, 448, 235 Ill.Dec. 454, 705 N.E.2d 67 (1998)

. "Statutes carry a strong presumption of constitutionality, and the party challenging the constitutionality of a statute bears the burden of rebutting this presumption." People v. Maness, 191 Ill.2d 478, 484, 247 Ill.Dec. 490, 732 N.E.2d 545 (2000), citing Russell v. Department of Natural Resources, 183 Ill.2d 434, 441, 233 Ill.Dec. 782, 701 N.E.2d 1056 (1998). Section 12-3.2(a) of the Criminal Code defines the offense of domestic battery as follows:

"§ 12-3.2. Domestic Battery.

(a) A person commits domestic battery if he intentionally or knowingly without legal justification by any means:

(1) Causes bodily harm to any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended; or

(2) Makes physical contact of an insulting or provoking nature with any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended." 720 ILCS 5/12-3.2(a) (West 2000).

In determining whether this statute is unconstitutionally vague, we must first decide whether the statute at bar encompasses an activity protected by the first amendment. (U.S. Const., amend.I). According to the Illinois Supreme Court, a party can attack a penal statute for vagueness only if the provision in question implicates an activity protected by the first amendment. People v. Ryan, 117 Ill.2d 28, 33, 109 Ill.Dec. 162, 509 N.E.2d 1001 (1987); See Schall v. Martin, 467 U.S. 253, 268 n.18, 104 S.Ct. 2403, 2412 n. 18, 81 L.Ed.2d 207, 220 n. 18 (1984). When a contested statute involves a first amendment right, a party may argue that the statute is vague as applied to himself and that the statute is unconstitutional on its face because it might be vague as applied to someone else. People v. Jihan, 127 Ill.2d 379, 385-86, 130 Ill.Dec. 422, 537 N.E.2d 751 (1989), citing People v. Garrison, 82 Ill.2d 444, 454, 45 Ill.Dec. 132, 412 N.E.2d 483 (1980).

If the statute under attack does not involve a first amendment right, it must be examined in the light of the facts of the case at hand. Ryan, 117 Ill.2d at 34, 109 Ill.Dec. 162, 509 N.E.2d 1001, quoting United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706, 713 (1975). In other words, "the party must show that the statute did not provide clear notice that the party's conduct was prohibited." Jihan, 127 Ill.2d at 385, 130 Ill.Dec. 422, 537 N.E.2d 751, citing Garrison, 82 Ill.2d at 454, 45 Ill.Dec. 132, 412 N.E.2d 483. Moreover, when the statute is examined in light of the facts of the case and the statute clearly applies to the party's conduct, then a challenge of the statute's constitutionality based on vagueness will be unsuccessful. Ryan, 117 Ill.2d at 34, 109 Ill.Dec. 162, 509 N.E.2d 1001, quoting Parker v. Levy, 417...