{ "id": 2921018, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUIS d'AVIS, Defendant-Appellant", "name_abbreviation": "People v. d'Avis", "decision_date": "1993-08-06", "docket_number": "No. 1-92-3176", "first_page": "649", "last_page": "653", "citations": [ { "type": "official", "cite": "250 Ill. App. 3d 649" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "549 N.E.2d 268", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "133 Ill. 2d 173", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260348 ], "pin_cites": [ { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0173-01" ] }, { "cite": "478 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "570 N.E.2d 391", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "211 Ill. App. 3d 337", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2526635 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0337-01" ] }, { "cite": "551 N.E.2d 327", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "194 Ill. App. 3d 660", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499135 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/194/0660-01" ] }, { "cite": "577 N.E.2d 499", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "217 Ill. App. 3d 410", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5284858 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/217/0410-01" ] } ], "analysis": { "cardinality": 557, "char_count": 9873, "ocr_confidence": 0.78, "pagerank": { "raw": 8.594203391136844e-08, "percentile": 0.48963240714033907 }, "sha256": "235c23b42a3c844b9052de455da4a9a8ef9eee074014c267a71473446edd0c42", "simhash": "1:9f6f6ca13a4101f5", "word_count": 1623 }, "last_updated": "2023-07-14T16:41:36.340475+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUIS d'AVIS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE MURRAY\ndelivered the opinion of the court:\nAfter a bench trial defendant, Dr. Luis d\u2019Avis (d\u2019Avis) was found guilty of the misdemeanor, battery (Ill. Rev. Stat. 1991, ch. 38, par. 12 \u2014 3(a)(2)), and sentenced to one year\u2019s probation. He now appeals his conviction and sentence.\nBecause the facts of this case are not in dispute and repulsive to recount, we give only a brief accounting here.\nAt trial the State presented a single witness, Luis Lopez, the complainant. Lopez testified that he made an initial appointment with d\u2019Avis, a licensed medical doctor certified as a family practitioner, for a general physical examination. On November 13, 1991, in the course of the examination, d\u2019Avis asked Lopez if he wanted to be checked for hemorrhoids. Lopez consented and d\u2019Avis performed a rectal exam on Lopez. However, at some point during this exam, d\u2019Avis asked Lopez if he was \u201cenjoying it.\u201d Lopez then turned around and discovered that, while performing the exam, d\u2019Avis was also masturbating.\nd\u2019Avis testified in his own defense, admitting that he had performed a rectal exam on Lopez. However, not only did d\u2019Avis deny that he had masturbated during the exam, he accused Lopez of masturbating during the examination, claiming also that Lopez had stated that he was enjoying the exam and \u201cwanted more.\u201d\nAfter considering all of the evidence, the trial court found d\u2019Avis guilty of battery and sentenced him to one year\u2019s probation. Now, on appeal, d\u2019Avis raises four arguments for reversal, each one completely without merit.\nFirst, it is d\u2019Avis\u2019 position that, even if it were true that he had acted in the manner in which he was accused, we must reverse his conviction because the behavior fell outside the purview of the battery statute. Specifically, d\u2019Avis contends that to be found guilty of committing a battery it must be shown that he intentionally and knowingly made physical contact of an insulting or provoking nature with an individual. (Ill. Rev. Stat. 1991, ch. 38, par. 12 \u2014 3(a)(2).) He then contends that his act of masturbation while performing a rectal exam on Lopez did hot meet this definition because Lopez testified that he was not embarrassed by the rectal exam, itself, but by the fact that d\u2019Avis was masturbating in his presence while performing the rectal exam. Consequently d\u2019Avis claims that his physical contact with Lopez, i.e., the rectal exam, was not insulting or provoking and that he should not have been found guilty of battery.\nThis argument is absurd. Although d\u2019Avis would have this court believe so, the touching associated with the rectal exam did not occur in isolation from the act of masturbation and, therefore, the one act should not be partitioned or segregated from the other. We believe that the State is correct in its assertion that a particular physical contact may be deemed insulting or provoking based upon the factual context in which it occurs. In other words, what may be an innocent touching in one instance may be interpreted quite differently in a different set of circumstances.\nIn this case d\u2019Avis ceased performing a legitimate medical examination once he exceeded the bounds of Lopez\u2019s consent by exploiting the situation for sexual pleasure. Thus, it was perfectly reasonable for the trial court to have found that the otherwise noninsulting medical procedure performed on Lopez became an insulting and provoking contact once Lopez realized that d\u2019Avis was using the rectal examination as a vehicle to bring about his own sexual gratification.\nCase law supports interpretation of the battery statute to encompass this situation. In People v. Dunker (1991), 217 Ill. App. 3d 410, 577 N.E.2d 499, defendant was found guilty of battery based upon his conduct with his son\u2019s teacher. The teacher testified that defendant became angry and poked his finger in her chest several times while she attempted to speak with him regarding his son\u2019s scholastic progress. Defendant argued on appeal that the victim had not been insulted or provoked by the contact with defendant\u2019s finger. However, the reviewing court found that the witness\u2019 testimony that she left the area crying, shocked by defendant\u2019s behavior, was sufficient evidence from which the jury could have found that the contact was insulting or provoking.\nSimilarly, in People v. Wilkinson (1990), 194 Ill. App. 3d 660, 551 N.E.2d 327, the court found that, by placing his hand inside the victim\u2019s blouse and pants, the defendant\u2019s conduct was insulting, despite the fact that the victim did not testify that she was insulted or provoked by the touching.\nThe next argument raised by d\u2019Avis is that he was denied due process because the battery statute was unconstitutionally vague as applied to him, failing to put him on notice that conduct of this nature was proscribed. Although d\u2019Avis cites to case law which, undisputedly, stands for the general propositions of law relied upon, he is unable to cite to any case law (nor do we believe it is possible to find any such case law) which supports the notion that it is beyond the ken of a reasonable medical professional to know that behavior of the sort alleged here would be prohibited.\nWe shudder to think that any medical professional could fail to recognize the legal, as well as moral, duty he or she has to refrain from exploiting the vulnerabilities of patients and the need to treat patients with dignity and respect. Therefore, no authority is required to dispose of d\u2019Avis\u2019 claim that the battery statute was unconstitutionally vague as applied to him in this case.\nAs d\u2019Avis notes, the battery statute seeks to regulate unconsented physical contact. There is no question in this court\u2019s mind that, although Lopez initially consented to having a medical examination by a medical professional, d\u2019Avis, by his behavior, transformed the medical procedure into sexual contact, to which Lopez did not knowingly consent. Although d\u2019Avis seeks to isolate the act of performing the rectal exam from the masturbation, these two acts occurred simultaneously and must be considered together when determining whether the crime of battery occurred.\nNext, d\u2019Avis contends that there was insufficient evidence presented at trial to constitute proof beyond a reasonable doubt. While conceding that the uncorroborated testimony of a single witness may be sufficient to establish guilt beyond a reasonable doubt (People v. Stengel (1991), 211 Ill. App. 3d 337, 570 N.E.2d 391), d\u2019Avis seeks to discredit Lopez\u2019s testimony by claiming that it was \u201cfraught with inconsistencies.\u201d Specifically, d\u2019Avis contends that there were three major discrepancies or inconsistencies in Lopez\u2019s testimony: (1) that Lopez was confused as to which hand d\u2019Avis used for the rectal exam and which hand he used to masturbate; (2) that Lopez testified that the rectal examination lasted for three minutes, although he never told police how long the examination lasted; and (3) that at trial Lopez testified that d\u2019Avis used one or two fingers for the rectal exam, although he told police that it felt like d\u2019Avis stuck his whole fist in his anus.\nWe find that these so-called inconsistencies are so minor and immaterial that they do not detract from Lopez\u2019s unswerving testimony that d\u2019Avis masturbated while performing a rectal examination on Lopez. This testimony was clear and convincing and supported the finding of guilt.\nFurthermore, d\u2019Avis is merely questioning Lopez\u2019s credibility, which was for the trier of fact to determine. We do not find Lopez\u2019s testimony to be so improbable or incredible that no trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (See People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Consequently, we find no basis for reversing the finding of the lower court.\nLastly, d\u2019Avis claims that the trial judge\u2019s comment that \u201cthere had been no evidence given to this court that would leave [sic, lead?] me to believe that the allegations made by Mr. Lopez are untrue\u201d indicates that the burden of proof was shifted to him, requiring him to prove his innocence by producing evidence to show that Lopez was lying. We disagree.\nThis was a bench trial. The trial judge is presumed to know the proper standards and to have applied them. Consequently, more weighty evidence would have to be presented to show that the trier of fact was misled as to the burden of proof to overcome this presumption.\nFurthermore, it is within the unique province of the trier of fact to assess credibility and weight to be given a witness\u2019 testimony. (People v. Eyler (1989), 133 Ill. 2d 173, 191, 549 N.E.2d 268.) We believe that the trial judge\u2019s comment evidences nothing more than the court\u2019s exercise of its discretion in assessing the credibility of the witnesses before it. The fact that in this case the trial judge found Lopez more credible than d\u2019Avis does not lead this court to the conclusion that an error has been made.\nAdditionally, we take notice of the fact that the trial judge, when considering this same issue in d\u2019Avis\u2019 motion for new trial, denied that it was in any way misled as to the standard that was to be applied and that his comment should not be interpreted as a shifting of the burden of proof.\nFor all the reasons stated above, we affirm the judgment of the lower court and uphold defendant\u2019s conviction and sentence.\nAffirmed.\nGORDON, P.J., and McNULTY, J., concur.", "type": "majority", "author": "JUSTICE MURRAY" } ], "attorneys": [ "Matthew F. Kennedy, of Cotsirilos, Stephenson, Tighe & Streicker, Ltd., of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth McCurry, and Michael Golden, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUIS d'AVIS, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1 \u2014 92\u20143176\nOpinion filed August 6, 1993.\nRehearing denied September 9, 1993.\nMatthew F. Kennedy, of Cotsirilos, Stephenson, Tighe & Streicker, Ltd., of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Kenneth McCurry, and Michael Golden, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0649-01", "first_page_order": 667, "last_page_order": 671 }