1 NOTI CE Decisi on fi led 04 /07/ 08. The textof this dec ision m ay be changed or
corrected prior to the filing of a Petit ion for Re hea ri ng o r th e dispos it ion of

the s ame. NO. 5-06-0514 IN T HE AP PEL LA TE C OU RT OF ILLIN OIS

FIF TH DIST RICT

________________________________________________________________________ THE PEOPLE OF THE STA TE OF ILLINOIS, ) Appeal from the ) Circui t Court of Plaintiff-Appell ee, ) F aye tte C ou nt y. ) v. ) No. 06-CF-20 ) ROBERT C. TAYLOR, ) Ho nora ble ) S. Gene Sch warm, De fend ant-A ppella nt. ) Judge, presi ding.

________________________________________________________________________ JUS TIC E G OL DE NH ER SH delive red the opin ion o f the c ourt: Aftera jury

tri al in th e c irc ui t co ur t o f F aye tte C ou nt y, defend ant, Robe rt C. Taylor,
was fou nd g uilty of do mes tic batte ryin viol ation of secti on 12-3.2( a)(1) of the Cri minal Code of 1961 (Criminal C ode) (720 ILCS 5/12-3.2(a)(1) (W est 2004)). He was sentenced t o 60 days in the coun tyjail , with c redit for 5 day s served, fined atotal of $500 plus court costs, orderedto obtain an alcoholsubstanc e-abuse eva luati on and comply wit h any r ecommended terms, and o rdered to pay a $ 10-p er-m onth pro batio n fe e. O n ap pea l, defendant r aises the following issues: (1 ) wh ether th e State prov ed de fend ant gu iltyof domestic batter

y beyond
a reasonabl e doubt and (2) whether defendant is ent itl ed to a cr edit of $5 per day

toward the fine he was assess ed for tim e he s pent in custo dy prior to senten cing. W e aff irm in part and remand. BACKGROUND On December 16, 2005, Offi cerTod d Emerick of the Vandalia pol ice depar tment respondedto a 9-1-1 cal l at defendant' s house. Defendant tol d Officer Emeric k that Li sha Clary broke int o his house and atta cked him. After inter viewing the parties and witnesses,2

Em eric k arr ested d efen dant. D efen dant w as later c harg ed by inform ation w ith dom estic battery "in tha t said defendant, without l egal j usti ficat ion, knowingly caus ed bod ily harm to Lisha C lar y, a fam ily or household member of t he defendant, in that

said defe ndant st

ruck Lisha Clary in th e mo uth with sai d defendant' s hands" i n violation of secti on 12-3.2( a)(1) of the Cri min al Code . De fen dan t wa s a ls o ch ar gedwit h batt eryfor

stri ki ng Li sha

Cl ar y' s daughter, K.F., in the mouth. On August 17, 2 006 , bot h co unt s pro cee ded to a ju ry trial. K .F., age 15, t esti fied that she and defe ndant 's daught er, A.M., are friend s. K. F. spentthe night with A.M. at de fe nd an t's house on the ni ght of December 16, 2005. They were asl eep in A.M.' s bedroom
w he n t he y w er e a w ak en ed by a lo ud no ise in de fe nd an t's bedroom. They went to see what causedthe nois e and found K.F.' s mother standing insi de the room anddefe ndan t and B etty Ko pha zy sittin g on the b ed. Afterseeing anot

her woman on defendant' s bed, K.F. ran out of the house, using the back door. Th e door w as intact wh en she ran out. She re entere d and found defendant throwing table s at her

mother and saw defendant hit her mother in t

he face. K.F. then g ot between defendant and her mother and hi t defendant . Defendant hi t K.F. bac k, cutting her face. K.F. test ifie d that at the time of the incident , she and her mother had been stayi ng at defendant 's hous e for a coupl e of weeks and that her mom and defendant had bee n "going out ." D ur in g t he w ee ks th ey w er e li vi ng at d ef en da nt 's house, K.F. witnesse d defendant and hermother hugging and kissing. Both K.F. and A.M. encouraged the relationship between their parents . K.F. t esti fied that her mother sl ept in de fendant' s bedroom duri ng the time they stay ed at defendant 's hous e. K .F . ke pt he r c lo th es in a b ag in A .M .'s room . She w as "pre tty sure" that he r mom kept her cl othes and a ba g of p ill s in defendant' s bedroom. After defendanthit

her, K.F. aga in fle d th e ho use via th e ba ck d oor . She broke the window out of3

the d oor attem ptin g to get o ut o f the hou se a nd c ut h er ar m o n so me glas s. Lisha Clary , age 42, test ifie d that s he had been staying at de fendant' s house for app roximate l ythree weeks prior t o the night in quest ion. She s aid that she and def endant "were dating " and that she slept in h is bed room . She s tated th at som e of h er cloth es w ere in
a bag and that

some of her cl othes were in a closet alongsi de defendant' s bed. She t esti fied that she kept her

medicati on at defendant 's hous e. She had been at defendant' s house ear lier in the da y, left, and re turned arou nd m idnigh t. She in itiallytest ifie d that s he did not have a keyto defendant 's hous e. The door was unlocked. She late r recal led that defendant left a key forher to us e. She ent ered the house, walked t hrough the kitche n and living room, and went to defendant' s bedroo m. She found defendant lyi ng on his bed wit h his head in the la

p of another wo man , Betty Kophazy. Betty was sitting on t

he bed and was wearing cl othes, but defend ant w as n ake d. Clary aske d defenda nt i f she could get her bag of cl othes and medi cati on, but defendantrefused. Defendant got off t he bed, came at

her, and s tart ed str iking her with his fists. She ran out of the bedroom and int o the living room. Defendant picked up the coffee table and hit he r in t

he back with it, causin g her to fall to the floor. S he go t up an d w ent into the kit chen, where defe ndan t contin ued to hit her. K .F. interv ened and h it defe ndan t. Defendant then hit

K.F. twice . K.F. got

scared and t

ried t o run outthe back d oor. K.F . could not ge t t he doo r o pe n a nd h er

arm wen t t

hr oug h the st orm wi ndo w. Defendant call ed the pol ice fr om a telephone in his room. The police arri ved on the
scene. The police fir st t alke d to Cl ary and K.F. The police t

hen went int o the bedroom and talke d to defendant . Defendant was handcuff ed and taken out

the back d oor. Clary

denied hittin g de fen dan t in th e be dro om . On cross- exa mi nation, Clary admitt ed that

she had been convi cted of aggr avated battery on July

26, 2006, on an unrelat ed matter in Fay ette County and

had served a s entence4

of 30 d ays in the coun ty jail . The State stipulated that Clary also had bee n convict ed of theft in a previou s matter. Clary gave a written st at eme ntto pol ic e o n the ni ght inque st io n. At that time she l ist ed h er a dd re ss as 62 1 N or th Fi fth in V an da lia , w hi ch is n ot de fe nd an t's add ress . On rebu ttal, Clary

said t hat she and de fendant had engage d in sex. She recal led that they h ad e nga ged in se x a " cou ple d ays be for e" th e nig ht in que stion

. Todd Emerick, ap oli ce officer who responded to t

he domestic dist

urbance cal l at de fe nd an t's house, t esti fied thatupo n his a rrival, he and his par tner knocke d on the door, but
no one answered. They

walked around the house andfound broken glas s outsi de the ki tchen door. The y heard yelling inside th e hou se an d cou ld no t g et a nyo ne 's a tte nt io n. U ltim ate ly, they identi fied themselves as police officer s and walked ins ide. They obser ved K.F. in t

he kitche n. Emerick described her as "very upset, cryi ng," and "hysterical." After int erviewing the pa rties and the w itnesse s, they arreste d defenda nt and transp orted h im to ja il. While defendant

report ed that

Lisha Clar

y br oke into hi s house, Emericknoted that he and his par

tner fo und brok en glass outsi de the ki tchen door, which indic ated that something or someone broke t he glass from the i nside, pushing out . Emerick fur ther not ed that there was br oken glass in the living ro om and th at a coffee tabl e appeared t o have been thro wn . Em erick orig inall y cha rge d de fen dan t wi th b atter y and listed the v ictim as K .F. A.M ., age 1 5, testified for the defe nse. D efen dant is her fatherand s he res ides w ith him at his rentalhouse, where t he inci dent occur

red. She s aid that at

the time of the offense,
no one else lived w ith them. She has been friends w ith K.F. since fifth g ra de. K .F. f requ ently spent t

he night at her hous e, and somet imes Lisha Cl ary would al so sp end th e nighton the w eek end s, w ith C lary sle epin g on the c ouc h. A.M. admi tt ed t hat Clary le ftsom e clothe s at the house, but she sai d that t

hey always st ayed in a green cl oth bag in t he living
ro om. She said that prior t o the day in quest ion, s he never saw defendant kiss or hug Lisha5

Cla ry. Ac cor din g to A.M ., defend ant a nd C lary w ere ju st frie nds

. On Decembe r 16, 2005, A.M. and K.F. heard a t hud, so t hey went into defendant' s bedroom to inves tigate. They saw defendan t and Bett y sitting on the bed. Clary was standi ng across t

he room and was "y elling." A.M. wentback to her bedroom and K.F. went outsi de. A.M. saw Clary pi ck up a lam p bu t did no t see w hat sh e did w ith it be ca us e A

. M. went back int o herro om. A. M. d id he ar gl as s b re ak in g. At some point, Betty came into her
room and told he r she coul d calm down because the police had arri ved. The poli ce tried to inter view A.M., but s he told t hem she did not s ee much because she was in her room. She did not tell th e po lice th at sh e sa w C lary pic k up a lam p. Betty Kophazy test ifie d that s he now lives w ith defenda nt and A.M . at the ho use in which the incide nt occurred and that s he is defe ndant' s girl friend. She moved in at t he end of February

or early March 2006. On the night in quest ion, s he was fully clothe d and sitting
on defendant' s bed when she heard t he sound of glas s cr ashing. She told de fend ant, "S om eb od y's j ust broke your window out." After

a lit tle more ruckus, she heard s omeone banging on the bedroom door, which was shut. Clary the n ca me into t

he room and asked defendant where her

pill s were. Defendant

told Claryhe did not kno w. Clary then st arted hitting defendant and cus sing athi m. According to Kophazy , defendant covered hi mself and did not strike bac k. Clary then wentafter

Kophazy. Kophazy

tri ed to jump over

the top of defe ndan t, atwhi ch time she kicked Clary in the c hest, and Clary

fellto the f

loor. Clary

went into the livin g roo m an d started break ing thin gs, w hile de fend ant ca lled th e polic e fr om a pho ne in his b edr oom . Kophazy went into the living room and found broken glass all over. Cl ary was in the kitche n and K .F. w as on the ba ck po rch. K .F. w as pa le and s aid she had cut he r arm on the door. Ko phaz y told K.F . to sit before she fa inted. Clary told Kophazy

to get away from her daugh ter, so Kophazy went back to defendant 's be droom untilthe poli ce arrived. Kophazy6

test ifie d that de fendantnev er h it Cla ry. Defendant jus t wanted Clar y out of his house , but the police ended up arre sti ng defendant. Kophazy had see n Clary earli er in t

he evening at a ba r an d be lieve d th at C lary w as d run k w hen she arriv ed a t defend ant's h ous e. On the night

in quest ion, Kophazy

told t he polic e she did not s ee anything. Kophazy admitt ed that whe n defen dant w as arrested, she did n ot tell the police that they were making
a mistake. She said t

hather main concer

n was A.M. and that she had tri ed to cal m her and tell her tha t itwo uld be okay because her father did not do anything wrong. K ophazy has a felo ny co nvi ction for pos sess ion of c ann abis

. During delibe rati ons, t

he juror s sent a

questi on to the j udge that asked whether t

hey shou ld convict

defendant of bat

tery if the y bel ievedthat de fend ant ha d hit K .F. acc identa lly when sh e w as in ter ve ni ng be tw ee n C lar y and defendant. The judge res ponded: "Your questi on is cont ained i n the instructi ons. Please refer to your instructi ons." The jury found defendantguilt

y of domestic battery

regarding Clary

but notguilt

y of bat tery regarding K.F. Defendant was sentenced to 60 days in the c ounty jailand fined $5 00. Defendant now appeals. AN AL YS IS The first i ssue we are asked to address is whethe r defendant was prove n guilt y of dom estic batte ry . Defendant argues he was not pr ov en gu ilty beyond a r easonable doubt because the Stat e fail ed to prove t hat Lisha Clary was a househol d mem ber o r invo lved in
a dating relat ionship with defendant . He asks t hat his convict ion be reduc ed to si mpl e ba tte ry. The State r eplies that it pres ented suffi cient evidence t o prove that

defendant and Cla rywe re in a da ting relat ion ship and sha red a co mm on d we lling and that, th us , h e wa s proven g uilty beyond a reaso nable dou bt of d om estic ba ttery. We a gree th at the S ta t e present ed suffici ent evi dence to show that Clary and defend ant we re in a dat ing rel ations hip. Section 12-3.2 of the Criminal Code provides in pertinent part as follows:7 "(a ) A perso n com mits d om estic ba ttery if he inte ntiona lly or know ingly without legal just ificati on by any means:

(1) Causes bodily har

m to any fa mily o r hou seho ldmem ber as define d in subs ection (3) of

Sectio n 11 2A -3 of

the C ode o f Cr imin al Procedure of 1963, as amende d[.]" (Emphasis added.) 720 ILC S 5/12-3.2(a)(1) (West 2004). Subsecti on 3 of secti on 112A-3 of t he Code of Crim inal Pro cedu re of 1 963 , wh ich is referenc ed in se ction 12- 3.2 of the Crim inal C ode, d efine s "Fa mily or household mem bers" and provides that t

hese ter ms include not

only "spouses, formerspouses, parents , chi ldren, stepchi ldren[, ] and other persons r elat ed byblood or by present or prior marriage" but als o "persons who share or formerly shared a common dwelling" and "pers ons who have or have had a dati ng or engagementrelationship." 725 ILCS 5/112A-3(3) (West 2004). Subsecti on 3 of secti on 112A-3 further provides that " nei ther a casual acq uaintancesh ip nor ordina ry frate rnization between 2 indi viduals in busi nes s or s ocial c ontex ts shall b e dee med to constitute a dating relation ship." 725 IL CS 5 /112A -3(3) (W est 2004). When a defendant cha llenge s the suf fici ency of t

he evidence, it i s not the functi on of
a rev iew ing cou rt to re try the d efe nda nt. People v. Evans , 209 Ill . 2d 194, 209, 808 N.E.2d 9 39, 947 (2004). Rather, a revie wing court must consider

whether, a fter vi ewing th e evidence in the l ight most favorabl e to the prosecut ion, anyrati onal trier of fa ct coul d have found the e ssen tial ele me nts o f the crim e be yond a rea son able dou bt. People v. Ward , 215 Ill. 2d 317, 322, 830 N. E.2d 556, 559 ( 2005). Here, defe n dant was convic ted fol lowing a jurytri al; t

herefore, it was t

he province of the j uryto dete rmine the credibili ty of witnesses, evalu ate the e vid enc e, an d re solv e an y inco nsis tenc ies th erein

. People v. Penrod , 316 I ll. App. 3d 713, 721, 737 N.E .2d 3 41, 3 50 ( 200 0). A conviction should not be reversed "unless the evidence i s so unreas ona ble, impro bable [,] or un satisfac tory that it raises a reaso nable8

doubt of defendant's guilt. " Evans , 209 Ill. 2d at 20 9, 80 8 N .E.2 d at 9 47. In the inst ant case , we agree wit h the State that

the evi dence, when viewed i n the li ght most favorabl e to the prosecut ion, show s that defend ant and the victim, Lisha C lary, were involved in a "dating relationship." Clary specifi call y t esti fiedthat she and defend ant "we re datin g." She described her rel ations hip with def endant as more than platonic and reveal ed that she and defendant

had engaged in s ex as re ce nt ly as tw o days p rior to the date in questi on. Both she and her da ughter t esti fied that the y had bee n living at defendant's house forapproximat ely

three weeks prior

to the incident

in quest ion. Clary

kept both c lothes and medicati ons at the defendant' s house. She test ifie d that s he slept in de fe nd an t's b ed . C lar y's daughter test ifie d that s he b eliev ed th at he r mo ther and defend ant w ere " goi ng o ut," because she saw them hugging and ki ssing during th e w ee ks th ey li ve d a t d ef en da nt 's h ou se . C lar y's and K.F .'s testimon y show ed tha t the pa rties' relation ship was neither a casualacquaint ance
nor ordinar

y fr aterni zati on, but aromantic relationship between two adult s who were livi ng in the s ame household. Defendant reli es on People v. Young , 362 I ll. App . 3d 843, 84 0 N.E .2d 825 (2 005), in support of

his cont ention t

hat the evidence fai led to s how he and Clarywere "famil y or hou seho ld members" as re quired fo r a dome stic b atter y con victi on. H ow eve r, Young is disting uisha ble from the i nstant case. First, the Young court found t hat the complainant and the defendant di d not have a fixed r esidence and resi ded in hom eless shelters and tha t there
was no e vid enc e tha t they h ad form ed a hou seh old

. Yo ung , 362 Ill . App. 3d at 850, 840 N.E.2d at830. The Young co urt s pe ci fi ca llyst at edth at "f ortwo people t o 'share a common dwelling'is for

them to st ay in one place t ogether on an extend ed, i ndefini te, or regul ar bas is." Young , 362 Ill . App. 3d at 849, 840 N.E.2dat 830. Here, Clar y and defe ndant st ayed togethe r at defendant's rent al property , not a homeless s helt er . A cc or di ng to C lar y's test imonyan d h er da ug ht er 's te sti m on y, Clary lived wit

h defendant for

three weeks priorto9

De cem ber 16, 2 005

. Second, in Young , the complaining witness a ctual ly deniedthe exi stence of a dati ng relation ship with the de fendant, clai ming inst ead that the two had o nly a socialrelationship. Young , 362 Ill . App. 3d at 845, 840 N.E.2d at

827. The court

found that

because th e complaini ng witness ch ose the w ord "social" t o describe the parti es' relationship, the re was direct evidence t

hat she di d not think the focus of the r elatio nsh ip w as ro ma ntic. Young , 362 Ill. Ap p. 3d at 8 52, 84 0 N .E.2d at 832 . Here , on the other h and, th e com plainin g w it nes s belie ved her rel ations hip with def endant was romant ic. She had l ived w ith def endant for three weeks prior

to the date in que sti on. During t hat time, she slept

in defendant 's be d and eng age d in sex wit h de fen dan t. Her daughter c onfirmed that the nature of the rela tionsh ip
was ro m an tic . A cc or di ng to K .F . bo th sh e a nd de fe nd an t's daughter e ncouragedthe rom antic relation ship between their parents. K.F. sai d she saw defendant and her mother hugging and kiss ing dur ing the w eek s sh e an d he r mo ther lived at de fen dan t's ho use . The Young court not ed parti cular c hanges to t he stat ute in que sti on that

indicate the General Ass emb ly's in tentio n to ad dress p articular prob lems o f abu se w ithin intim ate relati onships: "Un til 199 3, the se ction e ncom passe d on ly people wh o w ould fall within the o rdinary underst anding of former andcurren t family and household members: ' "Fami ly or ho us ehold members" includes spouses , former s pouses, parents , chi ldren, step child ren [,] and other pe rsons r elat ed by bl ood or marri age, per sons who share or form erly shared a common dwelling, and pers ons who have or all egedly have a child in common.' 725 I LCS 5/112A-3(3) (West 19 92) . Effect ive 1993, the General Ass emb lyadded to the definition ' persons w ho h ave or have had a dating or engagementrelationship, [and] pers ons with di sabil iti es and their per son al as sista nts.' Pub. Act 87-1186, ef

f. Januar y 1, 1993. Thes e are tw o groups that one might not10

natura llyinclude in a class w ith family or househ old mem bers , bu t for which t he pr obl ems of ab use a re sim ilar to tho se in m ore strictl y dom estic re lati ons hi ps. By broadening the de finition this wa y, the Ge neral A ssem bly mad e it reach mo st intima te relati onships." Young , 362 Il l. App. 3d at 850-51, 840 N.E.2d at 831. Wh ile the relati onsh i p in Young was not the t ype of intimat e relations hip our General Assembly envisioned, the rel ationship here is. We agree with the Young court to the exten t that just because p ersons sha re lodgings does not nec essa rily me an th at the y shar e a c om mo n dw ellin g. Young , 362 Il l. App. 3d at 849, 840 N.E.2d at 830. However, we need not reac h the i ssue of whether Clary and defendantshareda com mo n dw elling, b ecau se they cle arly shared a dating relationship. Not only did they

live in the s ame house, but also t hey s hared the same bed for thr ee weeks prior to the incide nt. Thei r rel ations hip was a kind in which problems of a buse might arise. Ov erall, we find the evi dence suffi cient to support

a findi ng that de fendant andClary were fam ilyor ho useh old m emb ers w ithin the mea ning of the sta tute, so we will not reduce de fe nd an t's c on vi cti on to th e le ss er -in clu de d o ff en se of ba tte ry. The seco nd issu e w e are a sked to addr ess is w hethe r defe ndan t is entitled to a cred it of $5 per day

toward the f

ine he was ass essedfor

time spent i n custody

prior to sent encing. Defendant argues he s erved fi ve days in cust ody pr ior t o s entenci ng and th at, thus, h e is entitledto a cred it of $2 5 tow ard h is $50 0 fine . The State c once des th at defenda nt is entitled to a credi t of $5 per

day for the time he spe nt in pr etri al custody, but it assert s that

defendant
wa s in jail on lyfor tw o days p rior to posti ng bail a nd, accor dingly , is entitled to a credit of only $10. We give defendant the bene fit o f the d oub t that he is entitled to a $2 5 cred it toward his fin e. Th is case is rem ande d w ith direc tions to mo dify the m ittimus to refle cta $25 cred it tow ard the $ 500 fine

.11 CONCLUS ION For the fore going reas ons, defendant' s conviction and sentence are aff irmed. The
cause is rem ande d w ith directions to modify the mittimus t o refle ct a $25 cr edit toward the $50 0 fine impo sed b y the trial cou rt.
Affirmed in part; cause remanded w ith directions.

DO NO VA N an d W EX STT EN , JJ., concur.NO. 5-06-0514 IN T HE AP PEL LA TE C OU RT OF ILLIN OIS

FIF TH DIST RICT

___________________________________________________________________________________ THE PEOPLE OF THE STA TE OF ILLINOIS, ) Appeal from the ) Circui t Court of Plaintiff-Appell ee, ) F aye tte C ou nt y. ) v. ) No. 06-CF-20 ) ROBERT C. TAYLOR, ) Ho nora ble ) S. Gene Sch warm, De fend ant-A ppella nt. ) Judge, presi ding.

___________________________________________________________________________________ Opinion Filed : April 7, 2008

___________________________________________________________________________________ Justice s : Ho nor able Ric har d P . Go lden her sh, J

.

Ho nor able Jam es K . Do nov an, J ., Ho nor able Jam es M . W exs tten, J ., Concur

___________________________________________________________________________________ Atto rneys Da niel M . Kir wa n, D epu ty De fen der , Pai ge C lark Stra wn , As sista nt D efe nde r, for Office o f the S tate A ppella te De fend er, Fifth Judic ial Distric t, 117 N orth T enth Appell ant Street , Suit e 300, Mt. Vernon, IL 62864

___________________________________________________________________________________ Atto rneys Hon. Steve Fri edel, State' s Attorne y, Fayet te County

Cour thous e, Vandali a, IL 62471; for No rbe rt J. G oette n, D irect or, S teph en E . No rris, D epu ty Dire ctor , Da vid M urre ll, Appellee Staff Atto rney, Office o f the S tate's Atto rneys A ppella te Pro secu tor, 730 E. Illino is Highway 15, Sui te 2, P.O. Box 2249, Mt. Vernon, IL 62864

___________________________________________________________________________________