People v. Brant

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People v. Brant

State: Illinois

Court: 2nd District Appellate

Docket No: 2-07-0338 Rel

Case Date: 09/22/2009

Preview:No. 2--07--0338 Filed: 9-22-09 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 06--CF--114 ) KRISTA A. BRANT, ) Honorable ) George J. Bakalis, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________ PRESIDING JUSTICE ZENOFF delivered the opinion of the court: Following a bench trial on January 12, 2007, defendant, Krista A. Brant, was convicted of criminal trespass to a residence (720 ILCS 5/19--4(a)(2) (West 2006)). On March 7, 2007, the trial court denied defendant's motion for a new trial or a judgment of acquittal and sentenced her to 24 months' probation. Defendant appeals,1 arguing that the State failed to prove her guilty beyond a

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The Office of the State Appellate Defender was appointed to represent defendant. On June

26, 2008, counsel filed a motion to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1896 (1967). This court denied that motion on January 20, 2009, and ordered a brief to be filed on the legal and factual viability of defense of others as a defense to the charge of criminal trespass to a residence.

No. 2--07--0338 reasonable doubt and that the trial court erred in not allowing her attorney to make a closing argument. For the reasons that follow, we affirm. BACKGROUND Defendant's conviction resulted from an incident that occurred on January 6, 2006, at the home of Nydia Ramirez. Following an altercation there that evening, defendant was indicted for mob action (720 ILCS 5/25--1 (West 2006)) and aggravated battery (720 ILCS 5/12--4 (West 2006)). Later, the State added a third count to the indictment, alleging the offense of felony criminal trespass to a residence (720 ILCS 5/19--4(a)(2) (West 2006)). A bench trial commenced on January 12, 2007. The evidence adduced at trial established that at approximately 9 p.m. on January 6, 2006, Dainy Brainin was in the basement of her mother's house with her friend, Jessica Tamez-Hull, dying her hair. Brainin's mother, Nydia Ramirez, was watching TV in the living room. While in the basement, Brainin received on her cell phone several calls from a girl who identified herself as Vasti Guillen. Guillen was yelling at her and Brainin was yelling back and telling her not to call. Ramirez went to the basement and took the phone from Brainin because the repeated ringing was bothering her. Ramirez went back upstairs. Shortly thereafter, the doorbell rang and Brainin went upstairs and answered it. Tamez-Hull remained in the basement. The entrance of Ramirez's house consisted of a storm door that opened out and a main door that opened into the home. Brainin opened the main door and saw Dafne Nawrot, a friend of defendant, standing there alone. After a heated verbal exchange between Brainin and Nawrot, Ramirez joined Brainin at the door. A physical altercation ensued between Ramirez and Nawrot, the details of which are the subject of disagreement by the witnesses.

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No. 2--07--0338 The State called Dainy Brainin as its first witness. Brainin testified that Nawrot stood on the stoop and said, "What's up, bitch." Brainin did not see a car in the parking space in front of her home. Brainin did not recognize Nawrot, and she asked her who she was and if she was Vasti Guillen. Nawrot said, "You want to talk shit, talk shit now." Brainin had never threatened or fought with Nawrot previously and knew her only through Nawrot's sister, with whom Brainin had had problems in the past. Brainin further testified that Ramirez came to the door. Nawrot was holding the storm door open. Ramirez told Nawrot to leave three times, but she refused. After the third time, Ramirez pushed Nawrot two steps backward and off the stoop. Nawrot said, "You fucked up, bitch," and swung at Ramirez's head and grabbed her by the hair. Ramirez grabbed Nawrot by the hair. They continued to pull each other's hair while moving into the home and toward the living room. Brainin attempted to separate Ramirez from Nawrot by grabbing Ramirez's neck and yelling for her to stop. Brainin pulled Ramirez onto the couch, resulting in Ramirez being on top of Brainin and Nawrot being on top of Ramirez. Brainin did not see Tamez-Hull during the incident. Brainin testified that she saw a "big girl," whom she identified as defendant, push the door open. Brainin saw defendant throw a "white ball or something" against the wall as she came through the door. Another female followed defendant through the door. Brainin testified that defendant got on top of Ramirez and started hitting her, but Brainin admitted that she could not actually see defendant. Brainin further testified that, at some point, she got out from under Ramirez, went downstairs to the basement, and called the police from her cell phone. Brainin acknowledged on crossexamination that although she saw only three girls come into the house, she told the 911 dispatcher

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No. 2--07--0338 that five girls had entered. After three minutes, Brainin went back upstairs and saw blood on the living room floor and both the storm and main doors open. Brainin initially told police that everyone who entered the house was punching and kicking Ramirez, but at trial she admitted that she had been dishonest with the police. Brainin also told police that Vasti Guillen, as well as a number of other girls, had been in the house. The State's next witness was Jessica Tamez-Hull, who testified that she went to the top of the basement stairs to see what the loud arguing was about. Tamez-Hull saw Brainin and Ramirez arguing with the person at the door. After the fighting began, Tamez-Hull ran to shut the door, fearing more girls would enter the house. As she tried to lock the door, defendant pushed the door open. Tamez-Hull was pushed back with it, heard defendant say, "Oh, hell, no," and saw defendant throw something white toward the living room area where the fighting was occurring. Another girl followed defendant into the house. Tamez-Hull went to the basement at that point and did not see any punches thrown. Nydia Ramirez testified next for the State. Her account of the events at the door was substantially similar to Brainin's. Ramirez testified that a few seconds after being pushed (by Nawrot) and pulled (by Brainin) into the living room, she saw three other girls come into the house. Ramirez saw one Hispanic girl and one tall, heavy-set, white female come in. The females jumped on her and "three, four people" were pulling her hair. The white female punched her head three or four times and yelled, "You fucked up, bitch." As the group tried to drag Ramirez outside, she kicked three times. When Ramirez kicked the third time, Nawrot bit her leg. Ramirez agreed that she was not sure how many girls came in, but she saw three girls leaving. Ramirez called 911 and ran out the open front door. She was looking for Brainin and Tamez-Hull when police arrived. At

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No. 2--07--0338 the time, Ramirez was unable to tell police specifically who caused each of her injuries, which included bruises, scratches, a bite mark, and a missing clump of her hair. Five days later at the police station, Ramirez was able to identify Nawrot as the girl who entered her home initially and defendant as the one who punched her head. At no time did Ramirez authorize Nawrot or defendant to enter her home. The State next called Detective Matt Thomas, who testified that he interviewed defendant and Nawrot about the incident five days afterwards, on January 11, 2006. Thomas testified that Nawrot told him she had been receiving harassing phone calls earlier in the day from unknown females calling from restricted numbers. During one such call, the voice on the other end said, "Bitch, don't be scared, come over here." According to Thomas, Nawrot assumed that the caller was Tamez-Hull, with whom she had had an altercation a few weeks prior, and that Brainin was also involved in the calls. Nawrot learned that a mutual friend had given Nawrot's cell phone number to Brainin upon Brainin's request. Nawrot decided to go over to Brainin's house and confront her about the calls. Nawrot asked defendant to give her a ride. Thomas testified that Nawrot described the following sequence of events. Defendant and Nawrot drove to Brainin's house. Nawrot later admitted to Thomas that Vasti Guillen also went with them. Defendant parked the car in front of the residence and remained in the car, while Nawrot went to the door and rang the doorbell. Nawrot did not think Guillen left the car. When Brainin answered the door, Nawrot did not recognize her. Nawrot asked her if she was Dainy Brainin. Brainin asked her who she was. Nawrot said, "Don't act stupid, you know who I am." Brainin said that she did not know who Nawrot was and that Nawrot had the wrong house. Nawrot repeated her statement. Brainin then asked Nawrot if her name was Vasti. Nawrot said she was not Vasti. At that point,

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No. 2--07--0338 Ramirez came to the door, and Nawrot assumed the older female was Brainin's mother. Ramirez asked Nawrot who she was and what she was doing there. Nawrot said she wanted to talk to Brainin about the harassing phone calls. Ramirez told Nawrot that she had no business there and to leave. Nawrot told Ramirez that she would not leave until she had a chance to confront Brainin about the harassing calls. Ramirez then came outside and shoved her. Nawrot told Ramirez not to put her hands on her, because Nawrot had never put her hands on Ramirez. Ramirez then grabbed Nawrot's arms and hair and pulled her into the home. Thomas further testified that Nawrot told him she saw defendant enter the house as TamezHull tried to close the door. Defendant rushed toward the living room and pushed Ramirez's arms away from Nawrot, freeing Nawrot so they could leave. As defendant and Nawrot drove away, they saw police cars approaching the house. They went to defendant's residence where defendant took pictures of Nawrot's injuries, which were scratches to the face, redness of the arms, and a bloody nose. Thomas testified that following his interview of Nawrot, he spoke to defendant. Defendant's description of the events of January 6, 2006, was as follows. Defendant said she got home from work at about 8 p.m. and went to visit Nawrot. Nawrot told defendant that she had received threatening phone calls from "those girls." Nawrot asked defendant to drive her to Ramirez's residence. Defendant did so and remained in the car while Nawrot went to the front door. Defendant saw Nawrot speak with Brainin and then Ramirez. Defendant heard Ramirez yell at Nawrot. Defendant saw Ramirez push Nawrot and heard Nawrot say, "[D]on't disrespect me because I haven't disrespected you." She saw Ramirez grab Nawrot's shirt and drag her into the house. Defendant then ran toward the door as it was closing and pushed her way in.

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No. 2--07--0338 Following the State's case in chief, the defense moved for a directed finding. The trial court granted the motion for the first and second counts, mob action and aggravated battery, but denied it for the third count, criminal trespass to a residence. Defendant testified that she drove to Ramirez's house and remained in her car. Defendant saw Ramirez push Nawrot and grab Nawrot by her shoulders and hair. She did not exit her vehicle until she saw Ramirez dragging Nawrot into the house. Defendant believed that Nawrot was going to be hurt. The door was halfway open and defendant felt no pressure against the door as she entered. On cross-examination, defendant denied telling Thomas that she had pushed her way inside, as she had only pushed the door open. Defendant agreed that she had a cell phone with her, but never called the police. She acknowledged she did not yell at Nawrot to come back to the car and did not drive the car to get help. Defendant admitted that she had not been invited into the house and had never been inside it before. Defendant was aware that people were present inside the house. After both sides rested, the trial court stated: "I don't think I need any argument. I am still not convinced that going to the defense of others is warranted in this case. She had no right to enter the person's home. It's simple as that. There is a finding of guilty on criminal trespass to residence." On March 7, 2007, the trial court denied defendant's posttrial motion and sentenced her to 24 months' probation. Defendant timely appealed. ANALYSIS Defendant contends that (1) the State failed to prove beyond a reasonable doubt that she was guilty of criminal trespass to a residence, and (2) the trial court erroneously denied defendant the opportunity to make a closing argument.

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No. 2--07--0338 1. Sufficiency of the Evidence Defendant argues that the State failed to prove beyond a reasonable doubt that she acted without authority. According to defendant, her authority to enter derived from the statutory defense of defense of person. See 720 ILCS 5/7--1(a) (West 2006). The State maintains that it met its burden of proving that defendant entered without authority, because the affirmative defense of defense of person does not apply to the offense of criminal trespass to a residence. We thus address whether the State met its burden of proving defendant guilty beyond a reasonable doubt of the offense of criminal trespass to a residence, determining de novo whether the defense of defense of person is applicable. When a court reviews the sufficiency of the evidence, it must determine " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (Emphasis in original.) People v. Phillips, 215 Ill. 2d 554, 569-570 (2005), quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). It is the province of the fact finder to assess the credibility of witnesses, weigh the evidence, decide what inferences it supports, and settle any conflicts in it. People v. Ortiz, 196 Ill. 2d 236, 259 (2001). In a bench trial, it is the judge, as the trier of fact, who makes these determinations. People v. Mullen, 313 Ill. App. 3d 718, 724 (2000). We will neither retry a defendant nor impose our judgment upon the trier of fact. People v. Cunningham, 212 Ill. 2d 274, 279-80 (2004); Ortiz, 196 Ill. 2d at 259. Section 19--4(a)(2) of the Criminal Code of 1961 (Code) provides: "A person commits the offense of criminal trespass to a residence when, without authority, he or she knowingly enters the residence of another and knows or has reason to know that one or more persons is present." 720

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No. 2--07--0338 ILCS 5/19--4(a)(2) (West 2006). Here, defendant admits she knowingly entered Ramirez's home with the knowledge that persons were inside. At issue is whether she had authority to do so. The Code does not define "authority." Criminal trespass cases consistently refer to the source of the authority to enter as the consent or permission of a person having an ownership or possessory interest in the property. See People v. Godfrey, 382 Ill. App. 3d 511, 514 (2008) (State met its burden of proving unauthorized entry where homeowner locked her door and did not open it to the defendant at midnight, despite homeowner's invitation to the defendant earlier in the evening); People v. Reynolds, 359 Ill. App. 3d 207, 212-13 (2005) (evidence was sufficient to establish that the defendant did not have authority to enter, although the defendant had previously visited the house, because owner and occupants of the house did not give permission to enter on the morning in question); People v. Banks, 281 Ill. App. 3d 417, 421 (1996) (owners' interest in the house was superior to that of their daughter, and any authority that she might have had to give the defendant access was withdrawn after her father told the defendant he was not allowed in the house unless invited by a parent); People v. Brown, 150 Ill. App. 3d 535, 538-40 (1986) (evidence was sufficient to establish that the defendant entered victim's house without authority, even though victim permitted him to retain a set of keys after he moved out, where victim did not grant the defendant authority to enter on the day in question and the defendant cut or tore a window screen to get in the house). Thus, Illinois law treats a person with either an ownership or a possessory interest in the property as a lawful source of authority to enter the premises under section 19--4. Here, neither the homeowner, Ramirez, nor her daughter, Brainin, gave defendant permission to enter. Ramirez and Brainin testified that they were unaware of defendant's presence until she

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No. 2--07--0338 pushed her way through the door. Defendant does not argue that she had anyone's permission to enter. Indeed, she admitted that she had not been invited to enter. Accordingly, a rational trier of fact could have found that defendant did not have authority from either the owner or one with a possessory interest. We note defendant argues that our review of the sufficiency of the evidence should be de novo because, according to defendant, the facts are not in dispute. We grant defendant's motion to cite additional authority in support of her proposition and we consider People v. Chirchirillo, No. 2--07--1102 (July 31, 2009). In Chirchirillo, we reviewed de novo a challenge to the sufficiency of the evidence where the issue was whether the uncontested fact that the State did not establish that the co-defendant was a convicted felon precluded finding the defendant guilty of unlawful possession of a weapon by a felon under a theory of accountability. Chirchirillo, slip op. at 8. Here, even reviewing de novo the sufficiency of the evidence with respect to the element of authority, we still hold that the State met its burden. This is so because Illinois law is clear that the authority to enter a residence generally derives from the homeowner or one with a possessory interest in the home. As noted above, defendant does not maintain that she had permission to enter from any such person. Furthermore, based on the following discussion, we reject defendant's argument that her entry was authorized by her justification in defending another. Defendant in essence contends that by operation of law she had incidental or implied authority to enter, because she had authority to use force in defense of another once she entered. In Illinois, self-defense and defense of others are combined in section 7--1 of the Code defining justifiable use of force in defense of person, which reads: "A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to

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No. 2--07--0338 defend himself or another against such other's imminent use of unlawful force." 720 ILCS 5/7--1(a) (West 2006). Defense of person is an affirmative defense. 720 ILCS 5/7--14 (West 2006). "The legal effect of an affirmative defense is to admit that the acts occurred, but to deny responsibility." People v. Podhrasky, 197 Ill. App. 3d 349, 352 (1990); see also People v. Rodriguez, 336 Ill. App. 3d 1, 15 (2002) (by raising the affirmative defense of self-defense, the defendant admitted the homicide, but denied criminal responsibility). Here, defendant's reliance on section 7--1 is not as an affirmative defense to an otherwise illegal entry, but rather as a source of implied authority to enter in order to utilize force in defense of another as justified by section 7--1. Therefore, we must address whether section 7--1 applies to section 19--4 to provide implied authority to enter, by operation of law. Our determination necessitates comparison of these two provisions. We determine that the issue presented, one of first impression, involves a question of law, which we review de novo.2 See Moller v. Lipov, 368 Ill. App. 3d 333, 346 (2006). In examining the language of section 7--1, we first note that nothing in the section limits its application to particular offenses. Yet, it is most often applied as a defense to crimes such as murder or battery, to name just two, to justify an individual's use of force and is generally restricted to

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We are unable to determine from the trial court's language whether it found the defense

inapplicable on the facts or as a matter of law. In denying defendant's motion for a directed finding, the court stated, "This has nothing to do with defense of others." Pronouncing its finding of guilt, the court concluded, "I am still not convinced that going to the defense of others is warranted in this case." Finally, in denying defendant's posttrial motion, the court stated, "I don't believe those defenses [defense of other and necessity] are available in this situation or were other alternatives."

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No. 2--07--0338 prosecutions for crimes against the person. See State v. Olsen, 99 Wis. 2d 572, 579-80, 299 N.W.2d 632, 636 (App. 1980); 1 W. LaFave & A. Scott, Jr., Substantive Criminal Law

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