NO. 4-09-0765 Opinion Filed 5/11/11

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

 Plaintiff-Appellee,

 v.

DEMETRIUS G. HILL,

 Defendant-Appellant.

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 Appeal from

 Circuit Court of 

 Macon County

 No. 07CF1546

 Honorable

 Timothy J. Steadman,

 Judge Presiding.

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JUSTICE TURNER delivered the judgment of the court,

with opinion.

Justices Pope and McCullough concurred in the judgment

and opinion.

OPINION

In July 2008, a jury found defendant, Demetrius G.

Hill, guilty of aggravated battery. In August 2008, the trial

court sentenced him to nine years in prison.

On appeal, defendant argues (1) the State failed to

prove him guilty of aggravated battery, (2) the trial court erred

in instructing the jury, and (3) he is entitled to additional

sentence credit. We affirm and remand for further proceedings.

I. BACKGROUND

In October 2007, the State charged defendant by information with one count of aggravated battery (720 ILCS 5/12-
4(b)(8) (West 2006)), alleging that, while committing a battery,

he knowingly caused bodily harm to Willie Ford, who was in the

Macon County jail, a public property, when he struck and bit

Ford. Defendant waived his right to counsel.

In May 2008, defendant filed a pro se motion to dismiss

the aggravated-battery charge, arguing the offense did not occur

on public property. The State countered by arguing the county

jail constitutes public property as it is publicly funded. The

trial court denied the motion.

In July 2008, defendant's jury trial commenced. Joshua

Wilson, a correctional officer with the Macon County sheriff's

department, testified the jail consists of three pods, individual

housing units, in each of the six trods, the main housing area. 

Each pod contains 12 to 14 cells. On October 19, 2007, defendant

and Willie Ford were located in pod B. Wilson observed Ford at

the dayroom table when defendant attacked him. After Ford pushed

defendant up against a window, defendant bit Ford on the neck.

Willie Ford testified he was sitting at a table in the

dayroom when he saw defendant walking toward him. Defendant

"took a swing" at him but missed. The two then wrestled on the

floor. After getting to his feet, Ford grabbed defendant by the

throat. As he held defendant up against the window, defendant

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bit him in the jaw. 

Jennifer Mahannah, a registered nurse, testified she

works part-time at the Macon County jail. On October 19, 2007,

Mahannah was called to examine Willie Ford, an inmate who had a

bite mark on his neck. Ford told her he had been bitten by

defendant. 

The trial court took judicial notice the Macon County

correctional center is public property. The court allowed

defendant to argue to the jury the jail pod was not public

property because no public access to the area was permitted.

Ernest Brooms, an inmate at the time of the occurrence,

testified for the defense and stated he saw defendant bite Ford

on the chin. Another inmate, Deangelo Cook testified he saw

defendant bite Ford.

Following closing arguments, the jury found defendant

guilty of aggravated battery. In July 2008, defendant filed a

pro se motion for a new trial. Later that month, defendant

retained counsel, who adopted the motion. In August 2008, the

trial court denied the motion and sentenced defendant to nine

years in prison.

In September 2008, defense counsel filed a motion to

reconsider the sentence. Because defense counsel had legal and

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mental-health issues that arose, the cause was not called for

hearing for approximately 10 months. Defendant elected to

proceed pro se, and the trial court allowed him to file a new

motion for a new trial given his counsel's troubles. In October

2009, the court denied the motions. This appeal followed.

II. ANALYSIS

A. Aggravated Battery

Defendant argues the State failed to prove him guilty

of aggravated battery because a jail pod is not public property

within the meaning of the statute. We disagree.

Pursuant to section 12-3(a) of the Criminal Code of

1961 (720 ILCS 5/12-3(a) (West 2006)), "[a] person commits

battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual

or (2) makes physical contact of an insulting or provoking nature

with an individual." A simple battery may be elevated to an

aggravated battery when committed under one or more circumstances. For example, a person committing a battery may be found

guilty of aggravated battery if he "or the person battered is, on

or about a public way, public property or public place of accommodation or amusement." 720 ILCS 5/12-4(b)(8) (West 2006).

In this case, the State charged defendant with aggra-

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vated battery, alleging he committed a battery against Ford while

inside the Macon County jail, a public property. Defendant

argues government ownership does not make a location "public

property." Instead, defendant claims the property must be open

for access to the public. If the members of the general public

are not allowed admittance to the jail's housing units, defendant

argues he cannot be found guilty of aggravated battery based on a

battery occurring on public property.

"The primary goal in construing a statute is to determine and effectuate the intent of the legislature. The most

reliable means of accomplishing that goal is to apply the plain

and ordinary meaning of the statutory language." People v.

Amigon, 239 Ill. 2d 71, 84-85, 940 N.E.2d 63, 71 (2010). "Where

a term is not defined, 'we must assume that the legislature

intended the term to have its ordinary and popularly understood

meaning.'" People v. Beachem, 229 Ill. 2d 237, 244, 890 N.E.2d

515, 520 (2008) (quoting People v. Maggette, 195 Ill. 2d 336,

349, 747 N.E.2d 339, 347 (2001)). The ordinary and popularly

understood meaning of a word may be determined by utilizing the

dictionary definition. Beachem, 229 Ill. 2d at 244-45, 890

N.E.2d at 520. Courts, however, "may not depart from the statute's plain language by reading in exceptions, limitations, or

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conditions that conflict with the legislature's intent." Amigon,

239 Ill. 2d at 85, 940 N.E.2d at 71. As the issue of statutory

interpretation is one of law, our review is de novo. Amigon, 239

Ill. 2d at 84, 940 N.E.2d at 71.

The aggravated-battery statute does not define "public

property." "Property" has been defined as "something owned or

possessed; *** a piece of real estate." Merriam-Webster's

Collegiate Dictionary 933 (10th ed. 2000). We note "public land"

has been defined as "land owned by a government." MerriamWebster's Collegiate Dictionary 942 (10th ed. 2000). Without

discussion and on the issue of sentencing, this court found two

assaults by a defendant against his attorney, which took place in

the jail and in the courthouse, occurred on public property for

purposes of the aggravated-battery and aggravated-assault statutes. People v. Childs, 305 Ill. App. 3d 128, 140, 711 N.E.2d

1151, 1159-60 (1999). We find the plain and ordinary meaning of

"public property" is property owned by the government.

Defendant, however, relies on a line of cases, the

latest being People v. Ojeda, 397 Ill. App. 3d 285, 921 N.E.2d

490 (2009), for his belief that a location does not constitute

"public property" simply because it is government owned. In

Ojeda, 397 Ill. App. 3d at 286, 921 N.E.2d at 491, the trial

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court found the defendant guilty of aggravated battery after he

hit a highschool classmate in the face. On appeal, the issue

centered on whether a high school constituted "public property." 

Ojeda, 397 Ill. App. 3d at 286, 921 N.E.2d at 491.

The Second District cited People v. Kamp, 131 Ill. App.

3d 989, 476 N.E.2d 768 (1985), and People v. Ward, 95 Ill. App.

3d 283, 419 N.E.2d 1240 (1981), in finding "property is not

public solely because it is funded by local taxpayers." Ojeda,

397 Ill. App. 3d at 287, 921 N.E.2d at 492. The court noted the

definition of "public building" included the accessibility of the

public and determined "public" refers to property "which is for

the public's use." Ojeda, 397 Ill. App. 3d at 287, 921 N.E.2d at

492. The court held the high school was public property, as "the

public does have use of public schools in some way, although that

use may be restricted or limited." Ojeda, 397 Ill. App. 3d at

288, 921 N.E.2d at 493. Although the general public did not have

unlimited access to the public school, the court concluded the

school met the definition of "public property" intended by the

aggravated-battery statute. Ojeda, 397 Ill. App. 3d at 288, 921

N.E.2d at 493.

We do not agree with the Second District's restrictive

view of the definition of "public property," i.e., that not only

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must the property be funded by taxpayers but it must also be open

for the general public's use. The Second District's analysis

focused on the high school as a public building and whether the

public had access to the building and use of the facility in some

way. However, section 12-4(b)(8) of the aggravated-battery

statute uses the term "property" instead of "building." Defendant's and the Second District's reading of the statute substitutes "public space," "public place," or "area that is open or

accessible to the public" in place of the phrase "public property." Nothing indicates the General Assembly meant for the

plain and ordinary meaning of "public property" to be anything

other than government-owned property. Moreover, the county jail

is property used for the public purpose of housing inmates.

Here, the county jail was property owned by the government and thereby constituted public property. Given that the

battery took place within the jail in one of the pods, the

offense falls within the aggravated-battery statute. Accordingly, the State proved defendant guilty beyond a reasonable

doubt.

B. Judicial Notice

Defendant argues the trial court erred in instructing

the jury that it had taken judicial notice that the county jail

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was public property. We disagree.

"A court may take judicial notice of matters generally

known to the court and not subject to reasonable dispute." In re

A.B., 308 Ill. App. 3d 227, 237, 719 N.E.2d 348, 356 (1999). A

court may take judicial notice of a fact even if it constitutes

an element of the offense. See People v. White, 311 Ill. App. 3d

374, 380, 724 N.E.2d 572, 577 (2000).

In the case sub judice, the trial court took judicial

notice that the Macon County correctional center is public

property. Based on our finding to the previous issue, the

character of the jail pod as public property was not subject to

legitimate dispute. Accordingly, the court did not err in taking

judicial notice of the fact and instructing the jury thereon.

C. Sentence Credit

Defendant argues this cause should be remanded for the

award of an additional 50 days of sentence credit for time spent

regaining fitness and an evidentiary hearing to determine how

many additional days of credit he is entitled to between the date

of his rearrest and sentencing. We agree in part.

Section 5-8-7(b) of the Unified Code of Corrections

(730 ILCS 5/5-8-7(b) (West 2006)) provides an offender shall be

given credit on his sentence "for time spent in custody as a

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result of the offense for which the sentence was imposed." A

"defendant is entitled to one day of credit for each day (or

portion thereof) that he spends in custody prior to sentencing,

including the day he was taken into custody." People v. Ligons,

325 Ill. App. 3d 753, 759, 759 N.E.2d 169, 174 (2001). 

"Time spent in custody pursuant to orders

issued under [s]ection 104-17 or 104-20 or

pursuant to a commitment to the Department of

Human Services following a finding of unfitness or incompetency under prior law, shall

be credited against any sentence imposed on

the defendant in the pending criminal case or

in any other case arising out of the same

conduct." 725 ILCS 5/104-24 (West 2006).

"[A] defendant will not be credited for the day of sentencing in

which he is remanded to the Department of Corrections." People

v. Foreman, 361 Ill. App. 3d 136, 157, 836 N.E.2d 750, 768

(2005). 

In his initial brief, defendant argued he is entitled

to 50 days of sentence credit between February 28, 2008, and

April 17, 2008, which included time spent in the Department of

Human Services following a finding of unfitness. In response,

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the State pointed out the trial court entered an amended sentencing order awarding defendant sentence credit from October 19,

2007, through July 20, 2008. In his reply brief, defendant

agrees with the State, and this issue is now moot.

Defendant, however, argues he is entitled to additional

credit for time in custody between the time he posted bond on

July 20, 2008, and his sentencing date of August 27, 2008. The

State notes it appears defendant became jailed at some point

after posting bond but argues the record does not establish he

spent additional time in custody as a result of the present

offense. Because of the ambiguity in the record, remand is

required to determine whether defendant is entitled to sentence

credit between July 20, 2008, and his sentencing date of August

27, 2008.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment and remand for further proceedings. As part of our

judgment, we award the State its $50 statutory assessment against

defendant as costs of this appeal.

Affirmed and remanded for further proceedings.

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