wigan proceeded to a bench trial for the charge of domestic battery and at that trial the state's evidence could be summarized as follows on december st of two thousand and seventeen robert wesley along with his wife amber and eleven south castree and seneca illinois to retrieve his belongings and his dog trisha wigan was inside her home she refused to let robert enter that home and she called the police lieutenant  apartment arrived he's all robert outside of the home and former robert that there was an act of order of protection against him and told robert to stay out of the home at some point ms wigan open the door to let her friend betty ren department showed up also sell robert inside the home and want to arrest him because he was advised that there was an active order of protection against robert was a lawyer again this summarizes the state's evidence in the case and that affirmative defense of the defense of dolly is available to anyone where force is used against a person who is trespassing upon a dwelling and where the person recently believes that the force is necessary to repel the trespass that while it's normally the defendant who presents evidence to give rise to that from a defense they affirm of offense can be raised based on the state's evidence alone as what occurred here based on the state's evidence robert was lee was forbidden dismissed or dropped the state did not present any actual evidence that that was actually the case importantly when the court trial court ruled and found his wigan guilty it said it was the police officers trial the order protection exists is confirmed by the record of that order of protection which this court allowed to be supplemented to this record that record shows though the circuit court denied ms wigan's request for a planetary order robert that they were aware that there was an order of protection against him for good him from being at that address robert told them the the order protection have been dismissed or dropped and then both officers said that they assumption would be of the chief medical and has been advised by dispatch that there's an order of protection and he even testifies that he want to arrest robber once he saw him in the house and the robber told him the they were protection have been drop is a documentary that says that the emergency order of protection was dismissed but there is no corresponding order actually in the record stating that nor does that documentary say when the emergency order of protection would be dismissed and from the previous orders it appears that the murders they were protection was still in effect on december nd which the day after this incident occurred which does correspond with ms wigan's testimony that the judge ordered a twenty four hour cooling off period or that the the order was still in effect for another twenty four hours after she bought a court thank you this order protection gave rise to a per se affirm of the fence of defense of drawing from his wisdom thus the state needed to rebut the presumption that her force was not reasonable these are very unique facts your honour's i  can't imagine that this has happened in very many cases or will or will happen in very many more from this point forward but the state laid out its evidence and they call certain witnesses t which were police officers and if you look at the circuit court ruling on the evidence the circuit court almost as sensually says i'm going to throw out almost all the other witnesses by the state at this point when the state's evidence comes in then there's a affirmative defense of defense of the lowing right there because anyone that has an order protection that's protecting number one is i'm asking for outright reversal based on the state's evidence alone raises this defense and so based on that we don't even we should even then get to what ms we can says because the state's evidence alone there is there is the defen there's no way that the state could rebut that beyond a reasonable doubt that presumption because there isn't an order of protection and her force was reasonable she didn't there's no accusations of use of deadly force whatever it was reasonable force to sto p the trust us my nd argument if this court doesn't agree with the her conviction should be reversed all right is that her counsel was ineffective for not raising this defiance yes miss we can does testify that she did not knowingly or attentional the strike robert her testimony is that she lost her balance because the door was opening and she thought she was grabbing for her from his run for oh and just reach out  and try to grab someone from falling and i don't think there's anything that should stop council from being able to raise the two defenses and they may be mutually exclusive struck or pushed robert was lee thus they can't prove her guilty beyond a reasonable doubt or in the alternative of because her raising the defense of property if you find that  the state's evidence and witnesses are credible that she was justified in using that force in the state can't prove beyond a reasonable doubt that she is not justified i don't think is i think stopping counsel from from raising those two defenses and where i think the ineffective assistance comes in here and we're because we're going was prejudiced is that based on the order of protection existing if you raise the defense of defense of dwelling it's really should be an automatic winner because we have an order of protection that says robert wesley is not supposed to be there we also have mr wesley being told by a police officer to not enter the dwelling and he still does we also have testimony of them as we can owns the home there's no testimony the robbery was he said he lived there earlier and ms we can say that it did that he's has any renters agreement or or that he owns the home as well so there was multiple reasons why robert wesley wasn't allowed to be in that house the strongest of which was a court order sta the state is in the position st is that they are the one prosecutors one of the the on as far as i'm the only here in the owes a duty to the other side a duty to justice and when their own evidence comes in and their own evidence is shown that an affirmative defense exists for the defendant an affirmative defense that if the defendant or coun sad i'm raising that automatically wins because there's an or there's an order forbidding that person to come and i think that the state had a duty to that point say to the court you have to find her not guilty i supposed to ask for the charges to be dismissed or or to end the case then once the state doesn't do that it should shift to the court to do that and they're arguing that the error was didn't hear and it was an accident she just fell against him wasn't the attorney at that point precluded from raising the defense i don't think so your honor for for i would say two number number one i would agree that it's going to be an issue potentially if it was a different set of facts and a person was arguing i wasn't even there i was in  there and then your councils saying well i'm raising this this defense that you know you can you know defense drawing defense of self whatever here miss we're going to testimony is not number one she's at the scene and number two she admits that she made contact eventually with robert and her husband was accidental and also because she was lost her balance from the door and didn't even know who she was was grabbing her had testified in a motion to suppress hearing that he did not kill the victim he does not testify at trial but during the trial his counsel raised the defen of self defense and the argument from the find of there was this council was in effect for raising the defense because he didn't give permission to raise that defense and also because based on his testimony at the motions where he said he didn't kill the victim that his counsel should have been able to raise and what the court said in that case is that a strategy of the defense is trial strategy for honors my name is stephanie raymond i represent the people of the state of illinois ends matter i think it's important to look at the statute because there seems to be the nd part of the statute which is sort of being disregarded  under the statute a person's justified in use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such others unlawful entry or attack upon the dwelling as counsel points out the defendant in this case testified that she did not intend to attack or hit to or make contact with  the victim there was no evidence presented by the state that defendant reasonably believed otherwise so where you can't really he sort of you know there were you know he focuses on the order of protection or whether or not he was supposed to be there and that aside there is that nd part and to the extent so it is important to her her testimony is important because it's what she reasonably believed under the statute that's that is important so as to disregard her entire testimony because the rocket has to fight otherwise it's the reasonable belief that he was not allowed in the trial and no the reasonable belief that the that such force was necessary to prevent his unlawful entry or attack upon the do well so that part is that i'm using force against you because i think it's necessary because your own entry is unlawful or you're trying to attack my dwelling she testified that she didn't didn't reasonably believe that force was necessary because she didn't intentionally you know give force on the victim so using force you would have to you have to admit that there there was a battery in order to use that if in argues is justification for that battery but she does not admit that there was a battery during her testimony she she's the one who she was there the officer saw from another point of view  i don't think that that this court should disregard her testimony entirely she testified over and over that she didn't intend to use force so i think that it does matter her testimony does matter intend to keep them out of her home i'm sorry but i mean would you read that shit i mean she did intend to keep him out of her home she had a lot of men when he got there she called the police she had no until i mean he show that so that's you know him and i'm not i'm not saying that she invited him in by any means whatever section not no order protection you know she didn't her testimony is clear that she did not want him there so that that is you know the record does show that however to say that i'm justified in using force wow simultaneously saying i didn't use force is is the problem that i think her her her argument has under the statute that says you're justified if you reasonably believe that that that that force is necessary and she does not she does not testify to that and nor did the state present such the state present evidence of what happened but there was nothing in there in their presentation of the evidence that show that defendant did record regarding his ineffective assistance argument well i believe that that is essentially the same did defense counsel knew that she was going to testify that she didn't intend this context so why didn't you brin mean you know would you try to argue that you're just you're justified in using force if if you know his client says i didn't use force so for him to raise that argument that he knows it you know it will be unsuccessful it's not going to be reflected by the testimony that's not unreasonable and that does not show ineffective assistance of counsel  it's when robert essentially charges ms renfro says that robert uses her as a battering ram to get into the house a caramel recall which witnesses i believe it might be robert's wife amber so it's the state's evidence that shows that ms wigan had a reasonable belief that her conduct was justified to stop the trespass it occurs right at the threshold of the property by an order of protection and the door opens up and that person comes in and the police officer doesn't even stop that person you think a person is unreasonable justified to exercise self help and stop that and that she bull rushed him she bull rushed him inside the house after robert entered the house so is it reasonable to think that she had to defend her house when the  i i think it would be reasonable for a person to say is that the police have not stopped that person so i don't think the presence of a police officer stops anyone from ever exercising an affirmative defense yes it might be a better course of action to allow the officer to intervene or to use what abilities and legal means they have but i don't think that there's nothing that i've seen in any case on says that you can't raise an affirmative defense simply because  but just because there is that testimony if your counsel and you have all that state's evidence has been presented including an order of protection that's an existence that forbids robert from being there there's nothing the sta and every element yana reasonable doubt if the affirmative defense has been raised there is now an extra element that has been added that they have to prove beyond a reasonable any one of those elements that the state fails to prove beyond a reasonable doubt means that ms wigan would acquitted so there's nothing that stops the council for making separate arguments as to why the state's proofs have failed to prove beyond a reasonable each element even if the elements are in a way mutually exclusive each other which the that the testimony is there's nothing to stop again counsel from saying i want you to believe my client ms wigand she said she'd intention your honor find her not guilty because she did not intentionally strike mr w the alternative of if you believe the telecasters testament which the circuit court did hear the state failed to prove beyond a reasonable doubt that her force that she used was not reasonable would would have won because there is an order of protection saying that he's not allowed to be there and she use reasonable force to stop that trespass there any other questions from the court  looks like again we ask that ms wiggins conviction for domestic battery be reversed out right on the alternative find that her counsels in effect of and reverse are conviction or man for further proceedings thank your hono thank you thank you we thank both of you for your arguments this afternoon will take the matter under advisement and will issue a written decision as quickly as possible the court will now stand in recess until nine o'clock tomorrow morning