No. 2-08-1090 F iled: 8-23-10

______________________________________________________________________________ I N THE APPEL L ATE COURT OF I L L I NOI S SECOND DI STRI CT

______________________________________________________________________________ THE PEOPL E OF THE STATE ) Appea l from the Circuit Court OF I L L I NOI S, ) of L ake County

. ) Plaintiff-Appellee , ) ) v. ) No. 08--CF --456 ) RI CARDO L I SSADE, ) Honora ble ) Daniel Shane s, Def endant- Appellant. ) J udg e, Presiding

.

______________________________________________________________________________ J USTI CE J ORGENSEN deliver ed the opinion of the c ourt: Following a bench trial, defe ndant, Ricardo L issade, was found g uilty of unlawful restra int (720 I L CS 5/ 10--3( a) ( West 2008)) and domestic battery (720 I L CS 5/12--3.2( a)( 1) (West 2008)), and he was sentenc ed to five y ear s' imprisonment on the unlawful restra int conviction. On appea l, defe ndant contends that his c onviction of unlawful restra int must be vacated and that he should be sentenc ed on the lesser included offe n s e of domestic battery , beca use the State failed to prove bey ond a rea sonable doubt that he knowing ly detained the victim. We disag ree , and, thus, we aff irm. The evidenc e prese nted at trial reve aled the following

. Def end an t an d the victim, J ana Sandness, wer e in a rela tionship. Two childre n, Ricky and Jay len, wer e born to the c ouple during that rela tionship. Towar d the end of the couple' s rela tionship, they lived toge ther in a townhouse. When the rela tionship ended in May 2007, defe ndant moved out of the townhouse, but Sandness and the children continued to live there

. When defe ndant moved out, Sandness never chang ed any of theNo. 2--08- -1090

locks on the doors o r t h e co d e to g et i nto the gar ag e usi ng the key less entry pad. To cut down on expenses, Sandness share d the townhouse with a r oommate, Maria nna Robles, af

ter May 2007. On the evening of November 2, 2007, defe ndant was upset because Sandness had beg un dating another man, and defe ndant did not want Sandness' s new boy friend to be around Ricky and J ay len. Def

endant attempted to call Sandness to tell her that he was coming over to the townhouse to take the c hildren aw ay

from her , but Sandness would not a nswer her phone. Be cause Sandness would not answe r, defe ndant sent a text messag e to Sandness, threa tening to take Ricky and J aylen. Sandness, who was scar ed by defe ndant' s threa ts, attempted to te mporarily chang e the code on the key less entry pad leading into the g ara g e, bu t , b ecause she was so scar ed, she was unable to do it

succe ssfully

. Sandness text ed R o b l es , who was waitre ssing, to tell her that defe ndant had threa tened to

come over and take the children. Robles did not respond to the text but, r ather , waited to talk with Sandness when Robles g ot home from wor k. When Robles came home l ater that night, Sandness

was scar ed. Robles talked with Sandness until midnight, when Sandness went to sleep in the master bedroom. Ricky , who was five y ear s old, was sleeping in the bed with Sandness. Robles fell aslee p

on the living room couch at 2 a.m. and was awakened a round 4:30 a.m. whe n she hea rd def endant enter the house throug h the g ara g e. When Robles heard de fenda nt, she went upstairs to wake Sandness. Sandness re ache d for her cellular phone, which was rec harg ing on the nightstand by the bed. Be fo re she could g et her phone, defe ndant g rabbe d it f rom Sandness, brea

king the char g er in the proce ss. Def endant beg an

swea ring at Sandness, calling Sandness a "bitch" and order ing Sandness to g et Ricky and J aylen

rea dy to leave with defe ndant. Def endant then went into the children' s room, wher e J aylen, who was

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an infant, was cry

ing in his crib. Def

endant picked J aylen up, but Sandness took J aylen fr o m defe ndant, held Jay len close to he r, and w ent downstairs. De fenda nt followed. Sandness sat on t h e couch, holding J aylen, and Robles and Ricky sat next to her. Robles attempted t o call the police on her cellular phone, but, befor e she was connec ted to the police depar tment, defe ndant g rabbe d the phone f rom her, br eakingit. Then, using one hand, defe ndant g rabbe d Sandness by the throat, pushed her up ag ainst the couch very hard, and beg an choking her. Sandness, who was still holding J aylen, beca me pale and

was g asping for air. Whil e choking Sandness, defe ndant looked Sandness in the ey es and asked, "D o y ou think I am afr aid to kill y ou, bitch? " Sandness, who thought that defe ndant was g oing to kill her, let g o of J ay len. She then ki cked at defe ndant and g rabbe d at hi s hand that was aroun d her throat in an attempt to fre e herse lf from defe ndant, but she was unsucces s fu l

. S andness stated that she could not move when defe ndant wa s ch o k i n g her, beca use defe ndant was "ve ry , very strong that night." R o b l es intervene d and tried to g et defe ndant off of Sandness. Robles stated that she was unable to fre e Sandness from defe ndant' s g rasp, as defe ndant was a "solid rock." Using his ot h er hand, defe ndant then g rabbe d Robles by the back of her neck. Ricky , who was observing what was happening , said something, a nd defe ndant let g o of both Sandness and Robles. Robles retrie ved her coat and went to a neig hbor' s house to call the police. After the police

arr ived, photogr aphs wer e taken of Sandness' s injuries, which included bruising and swelling around her neck. Def

endant was arr ested and questioned by the police. When asked what he was thinking about as he was choking Sandness, defe ndant said that he was thinking about how he wanted his children with him and did not want Sandness to hur t the m. Def

endant also indicated that he knew

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that if he did not stop choking Sandness, she would die, but he did not know why he stopped choking Sandness. I n finding defe ndant g uilty of unlawful r estraint, the trial court made the following statement: "T hat brings us to the unl awf ul restra int. That' s a lot more easily resolved, at least for me. As I said, the defe ndant was holding the victim down on the couch choking her. As the indictment say s, the defe ndant knowing ly without leg al authority detained J ana Sandness and that he restra ined her by g rabbing her about the neck, would not allow her to esca pe from his g rasp. That is exactly what he did. He held her ag ainst the couch. There was a strug g le

as I have alre ady found for an appre ciable amount of t i m e. S h e tried to g et awa y . He wouldn' t rele ase her, at least until later, and it actua lly took the intervention of a third party , Miss Robl es, in order

to ge t her out of ther e. *** [Defenda

nt] unlawfully restra ined [S andness]. I have absolutely no hesitation in finding ba sed upon my revie w of the e vidence that defe ndant is g uilty of that off

ense." At issue in this appea l is whether defe ndant was proved g uilty bey ond a rea sonable doubt of unlawful restra int. When revie wing a cha l l enge to the sufficie ncy of the evidenc e, we consider whether , viewing the evidenc e in the light most favor able to the State, any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt. People v. Wheeler, 226 I ll. 2d 92, 114 (2007). The critica l inquiry in review ing the sufficie ncy of the evidenc e is w hether the record ev i d en ce co u ld rea sonably support a guilty finding , reg ardle ss of whether the evidenc e is direc t or circ umstantial and whether the trial was by bench or by jury

. Wheeler, 226 I ll. 2d at 114. Be cause the trier of fac t is best p o s i t i o n ed to judge the cre dibilit y of the witnesses and resolve disputes in the evidenc e, its decision is entitled to g reat defe renc e. Wheeler, 226 I ll. 2d at 114-15.

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Thus, we do not retry the defe ndant when evalua ting the sufficie ncy of the evidenc e and will reve rse the defe ndant' s conviction only wher e the evidenc e is so unrea sonable, improbable, or unsatisfac tory that it just ifies a r easona

ble doubt of the de fenda

nt's guilt. W heele r, 226 I ll. 2d at 115. Unlawf ul restra int require s the State to prove that the defe ndant knowing ly and without leg al authority detained another. 720 I L CS 5/ 10--3( a) ( West 2008). Defe ndant does not dispute that he had no leg al authority to hold Sandness by the throat or that he restric ted Sandness' s movement by doing so. Rather, defe ndant claims that he was not proved g uilty beyond a rea son ab l e d o u b t of unlawful re straint beca

use he did not ac t "knowing ly ." A person acts knowing ly when "he is consciously awa re that such result is prac tically cer tain to be cause d by his conduct." 720 I L CS 5/4--5(b) (West 2008). A mental state is seldom proved by direc t evidenc e and must g ener ally be inferr ed from the surrounding circ umstances. See People v. Moreno, 334 I ll. App. 3d 329, 344 (2002). Howeve r, the State must still prove the require d mental state bey ond a rea sonable doubt. See People v. Mag g ette, 195 I ll. 2d 336, 354 (2001). Thus, " ' [t ]he State must prese nt sufficie nt evidenc e from which an infere nce of knowledg e can be made, and any infere nce must be based upon established fac ts a nd not py ramided on intervening infere nces.' " I n re Keith C., 378 I ll. App. 3d 252, 260 (2007), quoting P eople v. Weiss, 263 I ll. Ap p . 3 d 725, 731 (1994). Her e, the evidenc e reve aled that defe ndant g rabbe d Sandness by the throat. He then pushed her ag ainst the couch on which she was sitti ng . Def endant continued to hold Sandness by the throat ag ainst the couch while S andness and Robles attempted to fre e S andness from defe ndant' s g rasp. Neither woman was able to fre e Sandness from defe ndant. Fr om this evidenc e, a rational trier of fac t

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could infer that defe ndant knew his actions restric ted Sandness' s movement an d was consciously

awa re tha t he was unla

wfully detaining her. Citi ng People v. Kuy

kendall, 108 I ll. App. 3d 708 (1982), and People v. Hay bron, 15 3 I ll. App. 3d 906 (1987), defe ndant arg ues t hat he wa s not proved g uilty bey ond a re asonable doubt of unlawful restra int, beca

use his mot ivation during the incident was to take his children from Sandness, not to unlawfully restra in her. Although defe ndant' s statements to the police indicated th at he had enter ed Sandness' s home that night to r etrieve his c hildren, the trial court wa s not bound to

acc ept defe ndant' s statements of his motivation. See People v. Slinkard, 362 I ll. App. 3d 855, 858 (2005). In any

event, we find both Kuy

kendall and H ay

bron extremely

questionable. I n Kuy kendall, the defe ndant and some coconspirators enter ed the victim's home. Kuy kendall, 108 I ll. App. 3d at 709. Whil e the coconspirators held the victim, the defe ndant struck the victim. Kuy

kendall, 108 I ll. App. 3d at 709. The defe ndant was convicted of unlawful restra int, and he appea led, claiming t hat he was not p ro v ed guilty bey ond a reasonable doubt. Kuy kendall, 108 I ll. App. 3d at 709-10. The appellate court ag ree d, no t i n g t h at t h e restra int of t he victim was only incidental to the battery of the victim and that the intent of the defe ndant and the coconspirators when they enter ed the victim's home was to commit a battery , not to unlawfully restra in the victim. Kuy kendall, 108 I ll. App. 3d at 710-11. The court then obs erve d that, i f the defendant was g uilty of u n l aw fu l re s t ra i nt at all, it had to be based on an acc ountability theory , but the jury was never instructed on ac countability . Kuy kendall, 108 I ll. App. 3d at 711. I n Hay bron, t he defenda

nt and a codef

endant br o k e i n t o the vi ctim's home. Hay bron, 153 I ll. App. 3d at 907. When the victim turned on a light, one of the men g rabbe d the victim's arm and order ed her to turn the light off. Hay bron, 153 I ll. App. 3d at 907. The defe ndant was found g uilty

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of home invasion, arme d robber y , unlawful restra int, intimi dation, and ag g rava ted battery

. H ay

bron, 153 I ll. App. 3d at 907-08. On appea l, the defe ndant claimed that he was not proved g uilty bey ond

a rea sonable doubt o f u n lawful restra int. Hay bron, 153 I ll. App. 3d at 908. The appellate court ag ree d, finding that the ac t of g rabbing the vi ctim's arm when she t urned on the light " was mer ely deriva tive of and circ umstantially rela ted to the arme d robber y and home invasion." Hay bron, 153 I ll. App. 3d at 908. As defe ndant notes, this court has alre ady disag ree d wi t h Kuy kendall and Hay

bron. See People v. Be rg in, 227 I ll. App. 3d 32, 46 (1992). I n Be rg in, the defe ndant enter ed the victim's home, place d a pillow over the victim's head while s h e was sleeping , and told the victim that he and his coconspirator would kill her children if she talked. Be rg in, 227 I ll. App. 3d at 35. A jury found the defe ndant g uilty of unlawful restra int and intimi dation, and the defe ndant appea led, arguing, among other things, that he was not proved g uilty bey ond a rea sonable doubt of unlawful restra int, beca use his motive when he enter ed the victim's home was not to restra in her. Be rg in, 227 I ll. App. 3d at 34. We aff irmed the defe ndant' s conviction of unlawful restra int. Be rg in, 227 I ll. App. 3d at 46-47. I n

so doing, we disag ree d with Kuy kendall and Hay

bron to the extent that both of those case s sug g ested that we should focus on the defe ndant' s motive. Be rg in, 227 I ll. App. 3d at 46. Rather than motive,

we found that wh at mattere d was whether the defe ndant acte d knowing ly when he restra ined the victim. Ber g in, 227 I ll. App. 3d at 46. Def endant asks us to r ejec t B erg in a nd alig n this c ase with K

uy kendall. Tha t is, defe ndant arg ues that " [c] onsidering the context of events, along with the mental s tate and motivation of the offe nder, allows appropr iate application of the unlawful restra int statute while reduc ing the inappropria te application of the statute to its periphe ral aspec ts." We r efuse defe ndant' s invitation

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to reje ct Be rg in. As both Be rg in and the unlawful restra int statute make clea r, the restra int need only be perf ormed knowing ly

. The fac t that defe ndant may have had another purpose in enter ing Sandness' s home is simpl y irrele vant to w hether defe ndant was proved g uilty bey ond a re asonable doubt of unl awf

ul res t ra int. See also People v. Paulick, 174 I ll. App. 3d 868, 871 (1988) (in case wher e the defe ndant unlawfully restra ined the victim and then sexually abused her, this cou r t r e je c te d the defe ndant' s contention that his unlawful restra int conviction must be reve rsed beca use his motive was to sexually

abuse the victim and not unlawfully restra in her). T hus, we a dhere to Be rg in. For these re asons, the judg ment of the c ircuit court of L ake County

is affirme d. Affir med. O' MAL L EY and H UDSON, JJ ., concur .

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