No. 2--03--0053

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE CALLUM delivered the opinion of the court:

Following a bench trial, defendant, Coy W. Pergeson, was convicted of aggravated battery(720 ILCS 5/12--4(b)(8) (West 2002)) for an incident that occurred at the entrance to the Fox ValleyMall. The trial court found, as alleged in the indictment, that the battery occurred on a public way. Defendant appeals, arguing that under this court's opinion in People v. Dexter, 328 Ill. App. 3d 583(2002), private property such as the mall is not a public way. He therefore asks us to reduce hisconviction to one of simple battery. We affirm.

The following evidence was presented at trial. On May 25, 2002, Andrew Lewickas and hisgirlfriend, Jessica Struthers, were leaving the Fox Valley Mall in Aurora. They saw defendanthanding out flyers in a vestibule area between two sets of doors. Defendant tried to hand Lewickasa flyer. When Lewickas declined, defendant said, "F--k you then." Lewickas turned around andasked defendant, "What did you say?" Defendant hid on the floor behind a girl and put a clipboardover his head. Lewickas again asked defendant to repeat what he had said, but the latter just"snickered."

Struthers urged Lewickas to leave, so they continued walking out of the mall. When theywere about 50 feet from the entrance doors, defendant came running up to them. Lewickas turnedaround, and defendant "got into his face." Lewickas and defendant started arguing and exchangingprofanities. According to Struthers, the men were nose-to-nose. Defendant then jerked his head backand head-butted Lewickas in the face. Lewickas tried to hit defendant, but defendant walked away,tripping on a curb.

The parties stipulated that Dr. Michael Casey, a dentist, would testify that he examinedLewickas after the incident. Four of Lewickas's teeth were "pushed back" as a result of the attack. One tooth "died" and had to be replaced with an implant.

Detective Fedorski testified that he interviewed defendant about the offense. Defendant toldFedorski that he and Lewickas were bumping chests and then he head-butted Lewickas in the face.

Rachael Watson, a mall employee, testified for the defense that Lewickas, who was larger thandefendant, called defendant a "faggot" and pushed him away. Defense counsel argued thatdefendant's actions were in self-defense.

The trial court found defendant guilty of aggravated battery on count II of the indictment,which alleged that he committed a battery on a public way. The court did not find that defendant'sactions caused Lewickas great bodily harm or permanent disfigurement as alleged in two othercounts. The court found defendant guilty of simple battery on those counts but ruled that theconvictions merged into that on count II. Later, the court sentenced defendant to an extended termof 5