2024 IL App (2d) 230262-U 

No. 2-23-0262 

Order filed June 20, 2024

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 

except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of Kane County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 21-CM-2238 

) 

SCOTT S. MRIZEK, ) Honorable 

) Bianca Camargo, 

Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________ 

JUSTICE JORGENSEN delivered the judgment of the court.

Justices Schostok and Mullen concurred in the judgment.

ORDER

¶ 1 Held: Where the domestic battery count of which defendant was convicted alleged that 

he threw keys at the victim and pushed her, the fact that the State proved only that 

he pushed the victim did not create a fatal variance between the charge and the 

proof. Either alleged act would have been sufficient in itself to support a domestic 

battery conviction. Moreover, the count alleged the essential elements of the 

offense and the variance related only to the particular manner by which defendant 

committed domestic battery. Finally, the phrasing of the count did not prejudice 

defendant in preparing his defense.

¶ 2 Defendant, Scott S. Mrizek, appeals from his conviction, following a bench trial, of 

domestic battery based on insulting or provoking contact (720 ILCS 5/12-3.2(a)(2) (West 2020)). 

Defendant contends that his conviction must be reversed because the complaint alleged he 
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committed two acts of contact with the victim but the trial court found that the State proved that 

he committed only one of the acts. We affirm.

¶ 3 I. BACKGROUND

¶ 4 On December 6, 2021, defendant was charged by complaint with domestic battery (720 

ILCS 5/12-3.2 (West 2020)). The complaint bore the caption of the circuit court of Kane County

and included defendant’s name, address, phone number, date of birth, physical description, and 

driver’s license number. It also included the complainant’s name, address, and phone number.

¶ 5 The complaint was not expressly subdivided into counts, but there were two preprinted 

boxes for “Alleged Offense,” each indicating “Domestic Battery” and citing a different subsection

of the domestic battery statute. See 720 ILCS 5/12-3.2(a)(1), (a)(2) (West 2020). The complaint 

provided the date of the offense and further stated: 

“The within named complainant states under oath that on or about the date set forth 

herein, in said County, the defendant committed the offense set forth herein, in violation 

of the Chapter and Section of the Illinois Compiled Statutes, or the Ordinances of the City 

or Village, set forth herein, in that said defendant:

720 ILCS 5/12-3.2(a)(1) 

knowingly caused bodily harm to [the victim], a family member of the defendant, in that 

said defendant threw keys at [the victim], which hit her chest and caused bruising. Said 

defendant then pushed [the victim] onto the ground with his hand causing a scratch behind 

her left ear and a broken fingernail.

720 ILCS 5/12-3.2(a)(1) [sic] 

knowingly made physical contact of an insulting nature with [the victim], a family member 

of said defendant, in that said defendant threw keys at [the victim], which hit her chest and 
2024 IL App (2d) 230262-U 

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caused bruising. Said defendant then pushed [the victim] onto the ground with his hand 

causing a scratch behind her left ear and a broken fingernail.”

¶ 6 The matter proceeded to a bench trial. The State presented testimony from the victim and 

two police officers. Defendant testified on his own behalf. We summarize the relevant evidence.

¶ 7 The victim testified that she and defendant had two children—a 16-year-old son and a 12-

year-old daughter. On December 2, 2021, at approximately 10 a.m., she and defendant were at 

home and had an argument about their son. During the argument, defendant indicated that he 

wanted a divorce. He then left the house. The victim telephoned defendant and told him that she 

too wanted a divorce and that she wanted to talk. Defendant returned home at 11:30 a.m.

¶ 8 According to the victim, when defendant returned, they began to discuss getting a divorce. 

Defendant was seated on a chair in the kitchen, and the victim was standing about 15 feet away, 

in front of the sink, facing defendant. The victim was wearing only a nightgown and holding a 

cup of coffee. While they were talking, defendant picked up his keys from the kitchen table and 

threw them at her. The key ring contained about 20 keys and several additional items, including 

“a short mallet-type *** heavy-weighted *** defensive weapon” and “a Boy Scout can opener.” 

According to the victim, the keys struck her “right chest.” Defendant then “immediately charged” 

at her. She “backed up,” and defendant “put his hands around [her] neck.” They ended up in the 

dining room. Defendant was “holding and shoving, like pushing.” Defendant then “shoved [her] 

down.” The victim ended up between the dining room table and the wall. Defendant proceeded 

to “swipe” the items that were on the dining room table on top of her, which included “makeup, 

blow dryers, curling irons, [and] plastic containers that hold makeup.” She testified that “the breath 

was knocked out of [her]” and she “was scared.” About five minutes later, after the victim helped 
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defendant pack a bag and put socks on (he was physically limited because of recent surgery), 

defendant left the home.

¶ 9 The State introduced into evidence nine photographs of the victim’s alleged injuries. The 

victim testified that she had taken the photographs. People’s exhibit Nos. 1 through 5 depicted a 

bruise on the victim’s chest “from the keys.” People’s exhibit No. 6 depicted some “light” bruising 

on the victim’s hand “[f]rom the shoving and the falling and the grabbing.” People’s exhibit No. 7 

depicted the victim’s wrist with “some light bruising and hand marks from the scuffle.” People’s 

exhibit Nos. 8 and 9 depicted a scratch behind the victim’s ear caused when “[defendant] put his 

hands around [the victim’s] neck.” The victim believed the scratches were “behind [her] right 

ear.” In addition to the photographed injuries, the victim testified that one of her acrylic nails 

“broke off” and that this “[did not] feel great.” The victim testified that, in addition to the injuries, 

she also felt “[h]eartbroken, shame, humiliation, scared, fear, frantic, upset.”

¶ 10 Aurora police officer Jonathan Flores testified that, on December 3, 2021, at about 7:30 

p.m., the victim made an in-person report of domestic violence at the Aurora police station. Flores 

interviewed her. The victim advised Flores of her injuries, and Flores observed a bruise on the 

victim’s chest, a scratch behind the victim’s ear, and “discoloration on her skin, her hand maybe 

from the coffee.” A female officer took photographs of the victim’s injuries. Flores identified 

People’s exhibit Nos. 1 through 9 as photographs of the victim depicting “[t]he bruising, 

discoloration with the bruising, and *** a laceration or scratch.”

¶ 11 On cross-examination, Flores testified that some of the photographs were taken by the 

victim and some by a female police officer, but he could not say “which ones were which.” Flores 

identified People’s exhibit No. 2 as a photograph of a bruise on the left side of the victim’s chest. 

Flores never saw the right side of the victim’s chest. Flores identified People’s exhibit No. 9 as a 
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photograph of the victim’s left ear. Flores never saw the victim’s right ear. Flores testified that, 

based on the photographs, he could not tell if there were any injuries to the victim’s hands. He 

stated that the hands had “a skin tone difference” but he did not “know if it was from the coffee.”

¶ 12 Aurora police officer Antonio Piscopo testified that, on December 3, 2021, he and his 

partner interviewed defendant as a suspect in a domestic battery. Defendant told the officers that, 

at about 10:30 a.m. on December 2, 2021, he argued with the victim concerning their son. 

Defendant stated that, during the argument, “he had grabbed a set of keys and had thrown it at [the 

victim] and then two-hand pushed [the victim].” Defendant stated further that, “after the initial 

push, *** [the victim] had backed away and fell down while she was holding some hot coffee and 

that the coffee had [fallen] on top of her[ ].” Defendant advised the officers that he did not have 

any injuries. Piscopo arrested defendant.

¶ 13 On cross-examination, Piscopo testified that he recalled defendant telling him that the keys 

struck the victim when he threw them at her. Piscopo agreed that, had defendant told him that the 

keys struck the victim, he would have included it in his police report. Piscopo could not recall 

whether he included the information in his report. After refreshing his recollection with the report, 

Piscopo testified that he did not put anything in the report about the keys hitting the victim.

¶ 14 At the close of the State’s evidence, defendant moved for a directed finding. The trial court 

denied the motion.

¶ 15 Defendant testified that, while arguing with the victim about their son, he became 

“frustrated and [he] threw [his] keys at the kitchen cabinet.” The keys hit the cabinets above the 

countertop. He was about four feet away from the victim when he threw the keys. After he threw 

the keys, he stood up and “charge[d]” the victim. The victim “backed into the dining room area.” 

Defendant testified: “By the time I got to her—I didn’t walk well, and I kind of hitched and I did 
2024 IL App (2d) 230262-U 

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make contact with her, but I didn’t push or shove her. She tripped—while she was retreating, she 

tripped over her makeup cases.” He further explained: “I couldn’t stop myself in time. I did make 

contact with her.” Defendant testified that he had had hip replacement surgery and was having 

some issues because of it. He agreed that he “put both [of his] hands up with [his] palms up” and 

made contact with the victim. He saw the victim trip over the makeup cases and fall. He sat back 

down. He was “upset that she tripped” and he “felt bad.”

¶ 16 After the defendant rested, the State recalled Piscopo. Piscopo testified that, when they 

spoke, defendant did not mention any medical condition. Piscopo also did not notice anything 

unusual about how defendant walked. Defendant did not mention anything about kitchen cabinets; 

defendant told him that the keys struck the victim. Defendant described “a two-hand pushing 

motion[ ] but didn’t demonstrate it ***.” Defendant did not mention makeup cases. On crossexamination, Piscopo agreed that defendant did not say that “he pushed [the victim] down.” 

Rather, defendant told him that the victim “backed up and fell down.”

¶ 17 The trial court found defendant guilty on count II (insulting or provoking) and not guilty 

on count I (bodily harm). Before issuing its ruling, the trial court noted that the complaint 

contained “several [‘]ands[’] in each count for bodily harm as well as physical contact” and that it 

was “almost written in paragraph form of the several things that the State alleges that the defendant 

did.” After finding that the State proved the domestic relationship beyond a reasonable doubt, the 

court then addressed the “two incidents”—“keys to the chest” and “the push.”

¶ 18 The trial court first considered the evidence related to the “keys to the chest” incident. The 

court specifically noted that, although Piscopo mentioned in his police report that defendant said 

he threw the keys at the victim, Piscopo did not mention that defendant said the keys hit the victim. 

The court found incredible Piscopo’s testimony that he independently recalled that defendant told 
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him that the keys struck the victim. The court also noted that the photographic evidence 

contradicted the victim’s testimony. (Although the court did not specify the nature of the 

contradiction, we note that the victim testified that the keys struck her right chest but that the 

photographs showed bruising to her left chest. In addition, the victim testified that she had a 

scratch under her right ear whereas the photograph depicted her left ear.)

¶ 19 The trial court next considered the evidence related to “the push.” The court noted the 

victim’s testimony that defendant charged at her and put his two hands on her neck and chest area 

and that she fell backward. The court noted that the victim felt scared. The court found that the 

victim would not have fallen if defendant had not pushed or charged at her. The court also noted 

defendant’s testimony that he was angry and placed his hands on the victim’s chest. The court 

further noted that, although defendant testified that it was an accident, he never said that to the 

police. The court also noted defendant’s acknowledgment “about messing up and doing wrong.”

¶ 20 The trial court concluded:

“I think it gets a little tricky just on the way the complaint’s written, but as it relates to 

bodily harm, I’m going to find the defendant not guilty, but as it relates to insulting or 

provoking contact, I’m going to find him guilty, based on the push.”

¶ 21 The case was continued for posttrial motions and a sentencing hearing.

¶ 22 On July 10, 2023, defense counsel presented the trial court with a posttrial motion that he 

mistakenly believed had been filed electronically. The State asked that the motion be stricken as 

untimely. The trial court denied the State’s request and allowed defendant to file the motion 

instanter.

1

 When the court invited argument on the motion, defense counsel argued that the 

1

The posttrial motion is not included in the record.
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complaint alleged “that several acts were committed including the throwing of keys at the alleged 

victim in this case and striking her which was insulting and provoking and then doing some other 

acts.” According to counsel, because the State failed to prove that defendant committed all the 

alleged acts, defendant could not be found guilty.

¶ 23 The trial court denied the motion: 

“I do recall the testimony and evidence that was presented at the bench trial. I did find the 

complaining witness credible as it relates to the testimony about being pushed. I think that 

what lended to the credibility was when the defendant testified and ultimately and not with 

those specific words but also indicated that she—or that the defendant did, in fact, push the 

complaining witness, I don’t think that they are inconsistent with each other despite the 

other rulings that I made, so at this time I am going to deny the motion for a new trial.”

¶ 24 The trial court sentenced defendant to 12 months of conditional discharge. This timely 

appeal followed.

¶ 25 II. ANALYSIS

¶ 26 Defendant contends that the evidence at trial was insufficient to support his domestic 

battery conviction because the complaint alleged that defendant committed domestic battery by 

committing two acts—throwing keys at the victim and pushing the victim—but the State proved 

only one act. According to defendant, “all the [alleged] acts are material elements of the offense” 

and that, without proof of both acts, he cannot be found guilty.2

2

Defendant does not contend that the State failed to prove beyond a reasonable doubt any 

of the required elements of domestic battery. He argues only that, because the State did not prove 

both charged acts, he cannot be found guilty of domestic battery. Accordingly, we do not consider 
2024 IL App (2d) 230262-U 

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¶ 27 “[A] defendant has a fundamental right to be informed of the nature and cause of criminal 

accusations made against him.” People v. Espinoza, 2015 IL 118218, ¶ 15; 725 ILCS 5/111-3(a) 

(West 2020). Per section 111-3(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/111-

3(a) (West 2020)), the written charging instrument must state (1) “the name of the offense,” 

(2) “the statutory provision alleged to have been violated,” (3) “the nature and elements of the 

offense,” (4) “the date and county of the offense,” and (5) “the name of the accused.” See People 

v. Collins, 214 Ill. 2d 206, 219 (2005).

¶ 28 It is well-settled that “[t]he State ‘must prove the essential elements of the charging 

instrument.’ ” People v. Lattimore, 2011 IL App (1st) 093238, ¶ 67 (quoting People v. Rothermel, 

88 Ill. 2d 541, 544 (1982)). “For a variance between the charging instrument and the proof at trial 

to be fatal, the difference ‘must be material and be of such character as may mislead the defendant 

in making his or her defense, or expose the defendant to double jeopardy.’ ” Id. (quoting People 

v. Maggette, 195 Ill. 2d 336, 351 (2001)).

¶ 29 Contrary to defendant’s framing of the issue, there is nothing improper per se about a 

charging instrument alleging more than one act. Charging instruments routinely charge multiple 

acts and avoid confusion by assigning different acts to different counts. When properly framed, 

the issue here is that the specific count of which defendant was convicted alleged more than one 

act yet the trial court found that the State proved only one of those acts.

¶ 30 “[I]mmaterial matters, or matters which may be omitted from an indictment without 

rendering it insufficient or doing damage to the material averments, may be regarded as 

whether the evidence was otherwise sufficient to prove defendant guilty beyond a reasonable doubt 

of domestic battery based on the push.
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surplusage.” (Internal quotations omitted.) Id. “Where an indictment charges all essential 

elements of an offense, other matters unnecessarily added may be regarded as surplusage.” 

Collins, 214 Ill. 2d at 219; see also People v. Simpkins, 48 Ill. 2d 106, 110-11 (1971) (where the 

defendants were charged with mob action in that they disturbed the peace “by firing a revolver,” 

but the evidence showed that they disturbed the peace differently, the phrase “by firing a revolver” 

was surplusage).

¶ 31 In addition, where an offense can be committed by numerous acts, “ ‘a variance between 

the act named in the indictment and the act proved will not be fatal.’ ” Lattimore, 2011 IL App 

(1st) 093238, ¶ 69 (quoting People v. Burdine, 362 Ill. App. 3d 19, 24 (2005), and finding no fatal 

variance where the indictment charging aggravated battery alleged that the defendant caused 

bodily harm by striking the victim but the evidence established instead that the defendant caused 

the victim to be struck; the variance related only to the manner in which the defendant caused 

bodily harm); see Simpkins, 48 Ill. 2d at 110-11 (no fatal variance where the defendants were 

charged with disturbing the peace by firing a revolver but were found guilty based on different 

acts); People v. Taylor, 84 Ill. App. 3d 467, 470 (1980) (no fatal variance where the defendant was 

charged with obstructing a peace officer by pushing or shoving him but the evidence established 

only that she pulled the officer’s hair).

¶ 32 Section 12-3.2(a)(2) of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/12-

3.2(a)(2) (West 2020)) sets forth the necessary elements of domestic battery as follows:

“(a) A person commits domestic battery if he or she knowingly without legal 

justification by any means:

*** 
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(2) Makes physical contact of an insulting or provoking nature with any 

family or household member.” 

Count II of the complaint alleged that defendant

“knowingly made physical contact of an insulting nature with [the victim], a family 

member of said defendant, in that said defendant threw keys at [the victim], which hit her 

chest and caused bruising. Said defendant then pushed [the victim] onto the ground with 

his hand causing a scratch behind her left ear and a broken fingernail.”

¶ 33 Here, count II contained all essential elements of the offense of domestic battery. 

Nevertheless, defendant contends that, because the State alleged that defendant both “threw keys” 

and “pushed” the victim, his conviction cannot stand without proof of both acts. We disagree. 

Although count II presented the incident as a progression of two acts, they were separable, and 

each would have been sufficient, standing alone, to support a domestic battery conviction under 

section 12-3.2(a)(2) of the Criminal Code. Defendant does not argue otherwise. Thus, removing 

the allegation that defendant threw keys at the victim before he pushed her would not render count 

II insufficient, as all essential elements would undoubtedly remain. Accordingly, the language

alleging the key throwing may be regarded as surplusage. 

¶ 34 Moreover, we note that defendant is taking issue with the manner in which he “[m]a[de] 

physical contact of an insulting or provoking nature.” Id. He seems to suggest that the “manner” 

included both the throwing of the keys and the push. However, as noted above, a variance related 

to the particular manner by which defendant committed domestic battery is not fatal. See Simpkins, 

48 Ill. 2d at 111; Taylor, 84 Ill. App. 3d at 470; Lattimore, 2011 IL App (1st) 093238, ¶ 70. 

¶ 35 Defendant asserts generally that a variance is “error” if it “misleads a [d]efendant in the 

making of his defense” or “hinders the [d]efendant in the intelligent presentation of his case.” He 
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claims that he relied on the “[the State’s] wording [of the complaint] that all the acts create the 

insulting and provoking nature of the battery,” but he does not explain how this reliance affected 

his defense. Indeed, counsel defended against each factual allegation independently, arguing in 

closing both that defendant did not hit the victim with the keys and that defendant’s act of pushing 

the victim was “not knowing because he’s got the hitch.” Thus, there is no indication that any 

additional language in the complaint caused defendant to proceed with a different defense or to 

omit any evidence bearing on his innocence.

¶ 36 We note too that defendant does not argue that any variance exposed him to double 

jeopardy. Indeed, any such argument would be meritless. As noted, the indictment (1) named the 

offense, (2) cited the statutory provision allegedly violated, (3) set forth the nature and elements 

of the offense, (4) noted the date and county of the offense, and (5) listed defendant’s name. See

725 ILCS 5/111-3(a) (West 2020). Thus, if the State attempted a future prosecution based on the 

incident, defendant could show from the trial court record that there was a prior prosecution based 

on the same facts. See Lattimore, 2011 IL App (1st) 093238, ¶ 71. 

¶ 37 III. CONCLUSION

¶ 38 For the reasons stated, we affirm the judgment of the circuit court of Kane County. 

¶ 39 Affirmed.