## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

People v . Howard , 2012 IL App (3d) 100925

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. EVERETT L . HOWARD, Defe ndant-Appe llant.

District & N o. Third District Docke t No. 3-10-0925

Filed May 29, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s conviction for ag g ravated domestic battery was reduce d to ag g ravated battery due to the State’s failure t o establish that defe ndant and the victim wer e involved in a dating r elationship.

Dec ision Under Review Appea l from the Circuit Court of Knox County
, No. 09-CF- 393; the Hon. Stephen C. Mathers, Judge , presiding

.

J udg ment Affir med as modified.Counsel on

Appea l Gabr ielle Gre en, of State Appellate Def ender ’s Office, of Ottawa, for appellant.

J ohn T. Pepmeyer, State’ s Attorney , of Galesburg (Ter ry A. M erte l and Nadia L

. Chaudhry
, both of State’s At torney s Appellate Prosecutor’ s Offic e, of c ounsel), for

the People.

Panel J USTI CE HOL DRI DGE delivere d the judgme nt of the court, with opinion.
J ustice O’B rien c oncurr ed in the judg ment and opinion. Presiding Justice Schmidt dis sented, with opinion.

OP INION

¶ 1 Def

endant, Evere tt L

. Howar d, was convicted of ag g rava ted domestic battery (720 I L CS 5/12-3.3(a) (West 2008)), a C lass 2 felony
, and sentenced to 30 months’ probation and 60 day s in jail. He appeals his conviction, arg uing that the evidenc e fa iled to establish that he

was in a dating relationship with the victim and, there fore
, his conviction should be reduc ed to ag g ravated battery (720 I L CS 5/12 -4 (a ) (W es t 2008)), a Class 3 felony

. We ag ree and reduc e def

endant’ s conviction from a g g ravated domestic batter y to ag g ravated batter

y

.

¶ 2 FACTS ¶ 3 Def

endant was char g ed with a g g ravated domestic battery (720 I L CS 5/12-3.3(a ) (West 2008)), u n l aw ful 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)). The cause proce eded to a bench tr ial. ¶ 4 At trial, the victim testified that on the nig ht of the i ncident she met up with defe ndant and other friends at a local bar. W hile there
, she agr eed to meet defenda nt at hi s residenc e afte r they left the bar separ ately

. At defe ndant’s house, the victim and defe ndant had a couple beer s and then e ng ag ed in sexual intercourse . When they wer e finished, defe ndant went to the bathroom, and when he returned to the bedroom, h e was ang ry

. He gr abbed the victim by the hair and pulled her off the bed. After a failed attempt to defe nd herse lf, defe ndant g ot on top of the victim and struck he r numerous times with a c losed fist. ¶ 5 Both the victim a nd defe ndant testified reg arding the status of their relationship. W hen asked if they wer e in a dating relationship, both stated that they wer e not; howeve r, they had had around 15 sexual encounte rs beg i n n i n g approximately a y ear and a half befor e the incident. The victim stated that their relationship was strictly sexual in nature

. Def endant considere d the relationship to be a series of “one- night stands” and stated that he had never b o u gh t the victim flower s. The two had never spent an entire night toge ther and did not spend much time in ea ch other ’s company outside the prese nce of

their g roup of f

riends.

-2-¶ 6 The trial court found defe ndant guilty of agg ravated dom estic battery afte r c o n cl u d i n g

that he and the victim wer e in a dating relationship. Def endant was sentenc ed to 30 months’ probation and 60 da

y s’ incar cer ation. Def

endant a ppeals.

¶ 7 ANALYSI S ¶ 8 Def

endant argues t h at t h e ev i d en ce at trial failed to establish that he was in a dating relationship with the vi ct i m

. W h en prese nted with a challeng e to the sufficie ncy of the evidenc e, it is not the function of this c ourt to r etry defe ndant; rathe r, the rele vant question i s whether
, afte r viewing the evidenc e in the light most favor able to the prosec ution, any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt. People v. Colli ns , 106 I ll. 2d 237 (1985). A conviction will only be overturne d wher e the evidenc e is so u

nr e a s o n a ble, improbable, or unsatisfac tory as to justify a rea sonable doubt of def endant’ s g uilt. People v . Smith , 185 I ll. 2d 532 (1999). ¶ 9 I n order to be convic ted of domestic battery , the State must prove that the acc used and the victim wer e family or household members. 720 I L CS 5/12-3.2(a) (1) (West 2008). Family

or household members include persons who have or have had a dating or eng ag ement relationsh i p

. 7 2 5 I L CS 5/112A-3(3) (West 2008). Her e, the State attempted to prove that defe ndant and the vic tim had a dating rela tionship. ¶ 10 At trial, evidenc e established that defe ndant and th e v i ct i m h ad n u m er o u s sexual encounte rs; howeve r, it is not enoug h to show that defe ndant and the victim had an intimate relationship. The State must show that they had a dating relationship. People v. Y oung , 362 I ll. App. 3d 843 (2005). The Second District has define d a dati n g relationship to mean serious courtship, which must be, at a minim u m , an es t ablished relationship with a signific ant romantic focus. Id. Whil e defe ndant and the victim cle ar l y had an established relationship, we do not find that their relationship had a romantic focus. Both defe ndant and the victim testified that they wer e not dating and def

endant state d that he never boug ht the victim flower s. Def

endant and the victim wer e not exclusive, and the relationship did not contain any sort of share d expectation of g rowth. Rather, defe ndant and the victim eng ag ed in random sexual encounter s which we re phy sical in nature , not romantic. ¶ 11 Ba sed on the evidenc e, we find that the State did not establish a dating relationship and defe ndant cannot be convicted of the Class 2 felony of ag g ravated dom estic battery

. Thus,

we reduc e defe ndant’s conviction to the Class 3 felony of ag g ra v at ed battery

. Whil e we
re du ce defe ndant’s conviction, we believe that the sentenc e imposed by the trial cou rt i s appropr iate for the Class 3 felony of ag g ravated battery

. See I ll. S. Ct. R. 615(b); 730 I L CS 5/5-4.5-40(d) (West 2008). Ther efor e, we allow def endant’ s sentence to stand.

¶ 12 CONCL USI ON ¶ 13 The judg ment of the c ircuit court of Knox C ounty

is affirme d as modified.

¶ 14 Affir

med as modified.

-3-¶ 15 PRES I DI NG JUS TI CE SC HMI DT, dissenting : ¶ 16 The iss ue before us, as t he m aj ority conce des ( supra ¶ 9), is whether afte r vi ewingthe evidenc e in the light most favor able to the prosec ution, any rational trier of fac t could have found that the d ef

en d an t and his victim have or have had a dating relationship. People v. Colli ns , 106 I ll. 2d 237 (1985); 725 I L CS 5/ 112A-3(3) (West 2008). ¶ 17 The victim t es t i fi ed t h at s o m et i m e af t er m eeting defe ndant throug h friends, he r relationship with him evolved into more than just friends, althoug h she testified she was “not

rea lly ” dating defe ndant. Nonethele ss, there is evidenc e that defe ndant and his victim “hung out” toge ther, drank toge ther, play ed pool toge ther, talked on the phone and spent time at

eac h other’s homes. They had sexual re lations a pproxi mately 15 times, inc luding the night of the i n cident. This relationship was not the “intimate friendship and intimate working relationship” refe rre d to in People v . Y oung , 362 I ll. App. 3d 843, 851 (2005). ¶ 18 I am tro u b l ed b y t h e m ajorit y ’s appar ent require ment that a dating relationship for purposes of section 112A-3(3) (725 I L CS 5/112A-3(3) (West 2008)) must include a “ shared expectation of g rowth.” (Emphasis added.) Supra ¶ 1 0

. I d o not want to even guess what p e r c e ntag e of domestic relationships that require ment would exclude f r o m c o v e r a g e

. It w o u ld

seem that very often in a relationship expectations of g rowth are not mut ual. Also, the majority finds it signific ant that defe ndant never sent flower s to the victim. Supra ¶ 10. Well, there g oes at least another 80% of the relationships! Under t h e s t at u te, the victim and the

acc used must simply have or have had a dating relationship. Be cause I believe rea sonable people could find, based on the evidenc e prese nted, that this is or was a dating rela tionship regard l ess of what the participa nts called it, a rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt. Wit h all due respe ct, I submit that the majority

has improper ly

eng ag ed in a r ewe ighingof the e vidence

. ¶ 19 Iwould aff

irm the trial cour

t. There fore , Irespe ctfully dissent

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