{
  "id": 4279083,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOEL WILLIAMS, Defendant-Appellant",
  "name_abbreviation": "People v. Williams",
  "decision_date": "2008-07-29",
  "docket_number": "No. 4\u201406\u20141113",
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  "last_page": "342",
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      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOEL WILLIAMS, Defendant-Appellant."
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        "text": "JUSTICE MYERSCOUGH\ndelivered the opinion of the court:\nIn June 2006, a jury found defendant, Joel Williams, guilty of aggravated battery (720 ILCS 5/12 \u2014 4(b)(1) (West 2006)) and domestic battery (720 ILCS 5/12 \u2014 3.2(a)(2) (West 2006)) and not guilty of interfering with reporting domestic violence (720 ILCS 5/12 \u2014 6.3(a) (West 2006)). In September 2006, the trial court sentenced defendant to five years\u2019 imprisonment for aggravated battery followed by a two-year term of mandatory supervised release (MSR) and three years\u2019 imprisonment for domestic battery followed by a one-year term of MSR.\nDefendant appeals, arguing (1) the trial court erred by admitting into evidence the victim\u2019s written statement to rebut defendant\u2019s claim that the victim was intoxicated on the night in question; (2) the court\u2019s response to a jury question was incorrect and inconsistent with the charging instrument; (3) defendant\u2019s conviction for domestic battery violates the one-act, one-crime rule because the jury instructions did not apportion the acts that defendant allegedly committed; and (4) the court erred in sentencing defendant to two years\u2019 MSR on his aggravated-battery conviction.\nWe affirm defendant\u2019s convictions but remand with directions to correct the sentencing judgment. The trial court did not abuse its discretion by admitting the victim\u2019s statement into evidence for a limited purpose. The court\u2019s response to the juiy\u2019s question was legally accurate, and the variance between the charging instrument and the evidence at trial was not fatal. Defendant\u2019s conviction for domestic battery did not violate the one-act, one-crime rule because it was based on different acts and, as charged, domestic battery was not a lesser-included offense of aggravated battery. However, the State concedes, and we agree, that the court erred by sentencing defendant to two years\u2019 MSR on his aggravated-battery conviction. Therefore, we remand for issuance of an amended sentencing judgment to reflect a one-year period of MSR for defendant\u2019s aggravated-battery conviction.\nDefendant also asserts that his success on the MSR issue prevents the State from obtaining its costs for this appeal. We disagree and conclude the State is entitled to its costs for this appeal.\nI. BACKGROUND\nIn April 2006, the State charged defendant with aggravated battery (count I), domestic battery (count II), and interfering with reporting of domestic violence (count III). Count I alleged that defendant knowingly and without legal justification made physical contact of an insulting or provoking nature with Debra Billups by holding a knife, a deadly weapon, to her throat. Count II alleged that defendant knowingly and without legal justification made physical contact of an insulting or provoking nature with Billups, a family or household member, by putting his hands around her neck. Count II was charged as a Class 4 felony because defendant had been previously convicted of domestic battery. See 720 ILCS 5/12 \u2014 3.2(b) (West 2006).\nOn June 19, 2006, the jury trial commenced. In his opening statement, defense counsel informed the jury that the evidence would show that Billups was so drunk she could not remember what happened that evening.\nThe State called Billups to testify, as well as two of the police officers who responded to the 9-1-1 call, Kendra DeRosa and Jwone Hughes. The evidence indicated that on April 4, 2006, at approximately 11:45 p.m., the police were called to the mobile home where defendant and Billups resided. Defendant left the residence at the suggestion of the police but later returned to the mobile home. At approximately 3 a.m. on April 5, 2006, the police were again dispatched to defendant and Billups\u2019 home.\nBillups testified that when defendant returned to the home, she let him in but locked him out of their bedroom. According to Billups, defendant kicked the bedroom door open and choked her until she blacked out. When she regained consciousness, defendant poked her in her head, side, and back with a knife and asked her \u201cwhere did [she] want it.\u201d Billups managed to call 9-1-1 during the incident.\nOn cross-examination, Billups admitted she was intoxicated that evening and had consumed six beers and four shots of alcohol. However, both police officers testified that Billups did not appear intoxicated. Specifically, Officer Hughes testified that he had had contact with Billups in the past and had seen her intoxicated. Officer Hughes saw no indication that Billups was \u201cheavily intoxicated\u201d the night in question. Officer DeRosa testified that Billups did not exhibit the signs of intoxication DeRosa typically observed in intoxicated persons, such as difficulty following verbal direction, confusion, bloodshot and glassy eyes, \u201cstammering] around,\u201d and lack of depth perception.\nBillups also admitted on cross-examination that she had a phone conversation with an investigator from defense counsel\u2019s office the Friday prior to trial. Billups admitted she told the investigator that she was so intoxicated the night in question that she did not remember what occurred. Billups testified, however, that since speaking to the investigator, the events of the evening had come back to her. On redirect, Billups testified that her testimony at trial was based on her memory and that she remembered the events.\nOfficer DeRosa testified that when she arrived at the mobile home, Billups told her that defendant had choked her and held a knife to her head and various parts of her body. The officers found a knife in the kitchen garbage can. Officer DeRosa saw red marks around Billups\u2019 neck and a scratch on her right shoulder. Pictures of those injuries were admitted at trial. Officer DeRosa also felt the top of Billups head for an indentation Billups claimed was caused when defendant stuck the knife to her head. Officer DeRosa felt a small indentation.\nBoth officers testified that they witnessed Billups complete and sign a written statement on April 5, 2006, State\u2019s exhibit No. 5. Officer DeRosa testified that Billups followed her instruction to place a large \u201cX\u201d in the empty area on the page and initial it so as to show nothing was added. Officer Hughes testified that Billups stayed within the lines and the statement was legible.\nDefendant testified on his own behalf. He testified that Billups was intoxicated on the night in question. Defendant denied attempting to strangle Billups and denied ever using a knife on her.\nThe State sought to publish to the jury Billups\u2019 statement, exhibit No. 5, for the limited purpose of countering defendant\u2019s testimony that Billups was intoxicated. Defense counsel objected on the basis that the contents of the statement were highly prejudicial and the State failed to present an expert to testify that the handwriting was inconsistent with someone who was highly intoxicated.\nThe trial court overruled defense counsel\u2019s objections and admitted the exhibit for the limited purpose of considering whether Billups was highly intoxicated on the night in question. The court instructed the jury as follows:\n\u201cI have admitted State\u2019s [e]xhibit [No.] 5. State\u2019s [e]xhibit [No.] 5 was identified as the handwritten statement of Debra Billups[;] however, I have admitted it for a limited purpose rather than for all purposes of consideration. The limited purpose for which you may consider this exhibit is to consider whether and/or to what extent Debra Billups was intoxicated on the night in question and not for any other purpose.\nIn an effort to limit your consideration of the exhibit to that limited purpose, State\u2019s [e]xhibit [No.] 5 will be published to you or handed to you here in the courtroom, and you may look at it for several minutes if you wish. But, otherwise, it won\u2019t be going back to the jury room for your more detailed consideration.\u201d\nWhile the exhibit was passed to the jurors, defense counsel approached the bench. The following exchange occurred:\n\u201cMR. DODDS [defense counsel]: Your Honor, I want to point out to the [c]ourt that it appears that one of the jurors is writing down what\u2019s contained in the exhibit. Certainly didn\u2019t anticipate this, but I think it raises a point that was addressed by counsel of introducing the evidence in the first place.\nTHE COURT: Okay.\n(Brief interruption.)\n(The following proceedings were had in the presence and hearing of the jury).\nMR. GRIENER [assistant State\u2019s Attorney]: I believe they\u2019re finished.\u201d\nThe record contains no additional information about this incident.\nIn closing argument, the assistant State\u2019s Attorney apportioned the two acts \u2014 the choking and the use of the knife \u2014 between the two offenses. That is, the assistant State\u2019s Attorney argued that defendant committed domestic battery when he choked Billups and committed aggravated battery when he put the knife on various parts of Billups\u2019 body. The only use the State made of exhibit No. 5 in closing argument was to ask the jury to consider whether the handwriting appeared to be that of a \u201cperson who was drunk out of [her] mind.\u201d The trial court then instructed the jury, including the instruction that \u201cevidence that was received for a limited purpose should not be considered by you for any other purpose\u201d (People\u2019s tendered instruction No. 1, based on Illinois Pattern Jury Instructions, Criminal, No. 1.01 (4th ed. 2000)).\nDuring deliberations, the jury submitted the following question: \u201cBy using a deadly weapon, does that mean having physical contact with the weapon?\u201d Following a discussion with counsel, and at defense counsel\u2019s request, the court recessed to give the parties the opportunity to review the case law regarding whether actual physical contact with the weapon must be made.\nAfter the recess, the State submitted People v. Avant, 86 Ill. App. 3d 268, 409 N.E.2d 296 (1980), for the proposition that aggravated battery under section 12 \u2014 4(b) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12\u20144(b) (West 2006)) does not require that the deadly weapon be the instrument of the battery. Defense counsel argued that Avant was distinguishable and asked the court to respond to the jury\u2019s question by referring it to the instructions already given. The trial court refused defense counsel\u2019s request. Defense counsel then requested the court seek more clarification from the jury about what it was asking.\nThe trial judge found that \u201c[wjhile the possibility of misunderstanding exists, I don\u2019t believe a misunderstanding exists.\u201d The court noted that if the response was not what the jury was seeking, the jury would ask another question. The court, over defense counsel\u2019s objection, responded to the jury\u2019s question as follows: \u201cNo, the law does not require that the deadly weapon be the instrument of the physical contact.\u201d Thereafter, the jury returned a verdict finding defendant guilty of aggravated battery and domestic battery and not guilty of interference with reporting domestic violence.\nIn July 2006, defendant filed a posttrial motion. Defendant raised, among other things, numerous objections to the admission of exhibit No. 5, including that (1) the exhibit lacked a proper foundation; (2) the exhibit was duplicative of other evidence; (3) the exhibit constituted improper bolstering and hearsay; (4) the exhibit\u2019s prejudice outweighed its probative value; (5) the limited purpose for which the exhibit was admitted required expert testimony; (6) the trial court should have first ascertained the meaning of the jury\u2019s inquiry; and (7) the court erred by instructing the jury with the additional language from the Avant case. In September 2006, the court denied the motion.\nOn September 12, 2006, the trial court sentenced defendant to five years\u2019 imprisonment on count I followed by a two-year MSB, term, and three years\u2019 imprisonment on count II followed by a one-year MSB term. Defendant filed a motion to reconsider sentence, which the court denied.\nThis appeal followed.\nII. ANALYSIS\nA. Trial Court Did Not Abuse Its Discretion by Admitting Billups\u2019 Statement for a Limited Purpose\nDefendant argues the trial court erred by admitting into evidence Billups\u2019 written statement to rebut defendant\u2019s claim that Billups was intoxicated on the night in question.\n1. Standard of Review\nWhen evidence is competent for only one purpose, it may be admitted for that limited purpose. People v. Libman, 249 Ill. App. 3d 451, 457, 618 N.E.2d 1129, 1133 (1993). However, only relevant evidence should be admitted, and even relevant evidence may be excluded if \u201cits prejudicial effect substantially outweighs its probative value.\u201d People v. Ransom, 319 Ill. App. 3d 915, 921-22, 746 N.E.2d 1262, 1268-69 (2001).\nThe admission of evidence is within the discretion of the trial court. People v. Davis, 322 Ill. App. 3d 762, 765, 751 N.E.2d 65, 67 (2001); see also People v. Alsup, 373 Ill. App. 3d 745, 759, 869 N.E.2d 157, 170 (2007) (holding that \u201c[t]he determination of whether the probative value of evidence is outweighed by its prejudicial effect\u201d is within the discretion of the trial court). Absent prejudice to the defendant, this court will not interfere with the trial court\u2019s discretion. People v. Spann, 97 Ill. App. 3d 670, 677, 422 N.E.2d 1051, 1057 (1981); see also Davis, 322 Ill. App. 3d at 765, 751 N.E.2d at 67 (noting that the appellate court will reverse if the trial court admits into evidence prejudicial exhibits that lack the requisite foundation).\n2. Trial Court Did Not Admit Statement as Substantive Evidence\nDefendant first argues the admission of the statement constituted an improper admission of a prior consistent statement. Defendant asserts the jury may have incorrectly believed that Billups\u2019 handwriting exhibited lucidity and control that was inconsistent with any level of alcohol impairment, thereby mitigating the defense\u2019s assertion that she was too intoxicated to offer credible trial testimony about the incident.\nDefendant is correct that a witness\u2019s trial testimony may not be bolstered by the admission of prior consistent statements made out of court. People v. Ware, 323 Ill. App. 3d 47, 51, 751 N.E.2d 81, 85 (2001). However, the record clearly demonstrates the trial court did not admit the statement into evidence substantively, but only for the purpose of showing the jury Billups\u2019 handwriting on the night in question. The evidence was relevant (as discussed further below), and the court gave a limiting instruction. As such, the court did not abuse its discretion. See, e.g., People v. Illgen, 145 Ill. 2d 353, 376, 583 N.E.2d 515, 525 (1991) (finding that the limiting instruction reduced the prejudicial effect of the admission of other-crimes evidence).\n3. The Record Does Not Support Defendant\u2019s Assertion That the Jury Could Not Follow Limiting Instruction\nDefendant next argues the limiting instruction was insufficient to mitigate the prejudicial effect. According to defendant, in this situation the jury could not follow the trial court\u2019s instruction, as evidenced by the fact that at least one juror disregarded the court\u2019s limiting instruction by writing down the substance of the statement.\nDefendant compares the admission of the statement in this instance to cases where a nontestifying codefendant\u2019s extrajudicial statement was admitted at a joint trial with a limiting instruction that the jury disregard the statement as evidence of the defendant\u2019s guilt or innocence. See People v. Duncan, 124 Ill. 2d 400, 530 N.E.2d 423 (1988); see also Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). In Duncan, the court noted:\n\u201cAlthough it is often reasonable to assume that a jury has followed a trial judge\u2019s limiting instructions regarding evidence admitted for one purpose but not for another, \u2018there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. [Citations.]\u2019 (Bruton, 391 U.S. at 135, 20 L. Ed. 2d at 485, 88 S. Ct. at 1627.)\u201d Duncan, 124 Ill. 2d at 406, 530 N.E.2d at 426.\nHowever, this context differs greatly from the situation involving a codefendant\u2019s extrajudicial statement implicating the defendant. In fact, since Bruton, the United States Supreme Court has permitted the use at a joint trial of a nontestifying codefendant\u2019s confession, even where the defendant is linked to the confession through other evidence, if the confession is redacted to eliminate references to the defendant and if the jury is instructed not to use the confession against the defendant. See Richardson v. Marsh, 481 U.S. 200, 211, 95 L. Ed. 2d 176, 188, 107 S. Ct. 1702, 1709 (1987). In this case, the probability that the jury would not be able to follow the instruction is not present. See, e.g., People v. Gonzalez, 379 Ill. App. 3d 941, 954-55, 884 N.E.2d 228, 239-40 (2008) (finding no error in the admission, for a limited purpose and with a limiting instruction, of an out-of-court statement by a person stating she knew the defendant killed the victim; a strong presumption exists that the jury follows a limiting instruction, and nothing in the record rebutted that presumption).\nAs \u201cproof\u201d that the jury could not follow the instruction, defendant points to the indication in the record that at least one juror was writing down Billups\u2019 statement verbatim. However, defendant has forfeited that argument. Although defense counsel informed the court that it appeared that one of the jurors was writing down verbatim the statement, nothing in the record indicates whether defense counsel asked the court to stop the juror from doing so, otherwise question the jury, or look at the jurors\u2019 notes. Also, based on this record, this court cannot determine whether the juror was writing down the statement verbatim or taking notes on his or her impression of the statement and its legibility. Because defendant failed to express his dissatisfaction with the trial court\u2019s handling of the matter in the trial court, he has forfeited the issue on appeal. See, e.g., Zukosky v. Grounds, 85 Ill. App. 3d 355, 363, 406 N.E.2d 848, 854 (1980) (finding that plaintiff\u2019s counsel acquiesced in the trial court\u2019s disposition of the alleged misconduct \u2014 alleged communication between the defendant and a juror \u2014 by failing to express dissatisfaction in the trial court, thereby forfeiting the issue for review).\n4. Trial Court\u2019s Admission of the Statement for a Limited Purpose Was Not an Abuse of Discretion\nFinally, defendant argues the purpose for the admission of the statement \u2014 for the limited purpose of considering whether Billups was highly intoxicated on the night in question \u2014 was illusory because the jury could not determine the state of her intoxication by reading the statement, examining her handwriting, and observing her ability to stay in the lines.\nObservations of signs of intoxication are within the competence of the average adult. See, e.g., People v. Workman, 312 Ill. App. 3d 305, 310, 726 N.E.2d 759, 762-63 (2000) (noting that \u201ceven a layperson is competent to testify regarding a person\u2019s intoxication from alcohol, because such observations are within the competence of all adults of normal experience\u201d). While certainly not conclusive, the suggestion that an intoxicated person would not write neatly and within the lines is a reasonable one. See, e.g., People v. Jones, 65 Ill. App. 3d 1033, 1036, 383 N.E.2d 239, 241 (1978) (noting that the \u201c [defendant's handwriting appearing on the waiver suggests no appearance of intoxication\u201d); State v. Sanders, 130 Ohio App. 3d 789, 795, 721 N.E.2d 433, 437 (1998) (finding the trial court erred by excluding a copy of the defendant\u2019s signature shortly after her arrest to refute the trooper\u2019s testimony that the defendant\u2019s motor skills were impaired due to the influence of alcohol. \u201cWhen a signature appears neat and legible, the inference that can be made is that the signer\u2019s motor skills were not impaired\u201d).\nEven if the trial court erred by admitting the exhibit for the limited purpose of showing Billups\u2019 handwriting, any error was harmless. The evidence against defendant was overwhelming, given the trial testimony from Billups and the officers and the pictures of Billups\u2019 injuries. See, e.g., People v. Lombardi, 305 Ill. App. 3d 33, 44, 711 N.E.2d 426, 434 (1999) (the improper admission of evidence is harmless beyond a reasonable doubt where the evidence against the defendant is overwhelming). Moreover, the statement is not particularly consistent with Billups\u2019 trial testimony, as it contains no reference to defendant choking Billups.\nAlthough the trial court did not abuse its discretion by admitting the statement for the limited purpose of showing the jury Billups\u2019 handwriting, a better practice would include indicating on the record the length of time the jurors were allowed to examine the document. In addition, once defense counsel raised the possibility that one of the jurors was copying the statement, the court should put on the record what transpired, review the jurors\u2019 notes, and possibly voir dire the jury on the issue.\nB. Trial Court\u2019s Response to the Jury\u2019s Question Was Legally Correct, and Defendant Forfeited the Argument That Any Variance Between the Indictment and the Evidence Was Fatal\nDefendant next argues the trial court\u2019s response to the jury\u2019s question was incorrect and not consistent with the charging instrument. Specifically, defendant asserts that (1) aggravated battery under subsection (b) of section 12 \u2014 4 of the Criminal Code (720 ILCS 5/12\u2014 4(b) (West 2006)) requires that the offender actually use a deadly weapon in the commission of a battery; and (2) the response was inconsistent with count I of the indictment, which alleged that defendant \u201cknowingly made physical contact of an insulting or provoking nature with Debra Billups by holding a knife, a deadly weapon, to her throat.\u201d\nThe State argues defendant has forfeited these issues on appeal. Specifically, the State asserts that in the trial court, defendant only suggested the court refer the jury back to the instruction originally given and that Avant was factually distinguishable. According to the State, defendant never argued the response created a prejudicial variance with the language of the indictment.\nThe Illinois Supreme Court recently held, in regard to a jury instruction, that a defendant need not object to the instruction on the identical grounds in the trial court as on appeal to avoid forfeiture. See People v. Mohr, 228 Ill. 2d 53, 64-65, 885 N.E.2d 1019, 1025 (2008) (finding that the defendant\u2019s objection at trial to an instruction on the basis that \u201conce the jurors heard the information alleging that the defendant was provoked by the victim, the State was required to \u2018back that up\u2019 \u201d did not forfeit the argument raised in his posttrial motion and on appeal that no evidence of provocation was presented because the objection was \u201cclose enough\u201d). Here, defendant raised several objections to the trial court\u2019s response to the jury inquiry both at trial and in his posttrial motion. At trial, defendant challenged the Avant case as distinguishable. This argument was \u201cclose enough\u201d to his argument on appeal that the court misstated the law in its response. However, none of defendant\u2019s objections at trial were similar to the second argument he now raises on appeal \u2014 that the response to the jury question was inconsistent with count I of the indictment. Therefore, defendant has forfeited that argument on appeal.\nWhether the court misstated the law is a question of law, and our review is de novo. People v. Gray, 346 Ill. App. 3d 989, 994, 806 N.E.2d 753, 757 (2004). The jury submitted the following question: \u201cBy using a deadly weapon, does that mean having physical contact with the weapon?\u201d The trial court responded as follows: \u201cNo, the law does not require that the deadly weapon be the instrument of the physical contact.\u201d Defendant argues on appeal that the State had to show more than mere possession of the knife and that this court\u2019s decision in Avant, 86 Ill. App. 3d 268, 409 N.E.2d 296, the case relied on by the trial court, is distinguishable.\nIn the Avant case, the defendant, with his left hand, knocked the victim\u2019s cap off his head. Avant, 86 Ill. App. 3d at 270, 409 N.E.2d at 297. After the cap was knocked off his head, the victim noticed the defendant had a pistol halfway out of his pocket with his right hand on the pistol. Avant, 86 Ill. App. 3d at 270, 409 N.E.2d at 297. The defendant argued that because he did not knock off the victim\u2019s hat with his gun and the victim did not see the gun until his cap was knocked off, defendant could not be convicted of aggravated battery. Avant, 86 Ill. App. 3d at 270, 409 N.E.2d at 297. This court disagreed, concluding that aggravated battery does not require that \u201cthe deadly weapon be the instrument of the battery.\u201d Avant, 86 Ill. App. 3d at 270, 409 N.E.2d at 297. Specifically, we stated:\n\u201cThe Committee Comments to section 12 \u2014 4 of the Illinois Criminal Code of 1961 (Ill. Ann. Stat., ch. 38, par. 12\u20144, Committee Comments, at 465 (Smith-Hurd 1979)) state[ ] that section 12 \u2014 4(b) \u2018involves a battery committed under aggravated circumstances from which great harm might and usually does result (although it did not in the particular case), and therefore it constitutes a more serious threat to the community than a simple battery.\u2019 Ostensibly, section 12 \u2014 4(b) was intended to reach the type of conduct engaged in here. Moreover, we agree with the State that, although the weapon was not used to make the actual contact complained of, the weapon was used to make the contact more insulting or provocative. The statute does not require that the deadly weapon be the instrument of the battery.\u201d Avant, 86 Ill. App. 3d at 270, 409 N.E.2d at 297.\nClearly, the trial court did not err by advising the jury, in response to its inquiry, that the \u201claw does not require that the deadly weapon be the instrument of the physical contact.\u201d\nDefendant also argues the trial court\u2019s response to the jury question was inconsistent with count I of the indictment, which alleged that defendant \u201cknowingly made physical contact of an insulting or provoking nature with Debra Billups by holding a knife, a deadly weapon, to her throat.\u201d Defendant argues the State had to prove that defendant held the knife to Billups\u2019 throat. As previously noted, defendant has forfeited this argument by failing to raise it before the trial court. Even if this court were to address the issue on the merits, we would find no error.\n\u201cIn order for a variance between an indictment and proof at trial to be fatal, the difference must be material and of such a character as to mislead defendant in his defense or expose him to double jeopardy.\u201d People v. Burdine, 362 Ill. App. 3d 19, 24, 839 N.E.2d 573, 577 (2005) (involving alleged variance in the indictment which alleged that the defendant struck the fireman and the evidence at trial that the defendant bit the fireman). No such variance appears in this case.\nHere, the indictment identified the victim, the nature of the incident, and the date and place of the incident. See Burdine, 362 Ill. App. 3d at 24, 839 N.E.2d at 577. Defendant does not face the risk of double jeopardy because the judgment could be used to bar a subsequent prosecution for the same conduct.\nMoreover, defendant was not misled by the alleged variance in the indictment. Defendant knew what happened and why he was arrested. See Burdine, 362 Ill. App. 3d at 24, 839 N.E.2d at 577 (finding a difference between the indictment, which alleged the defendant struck the fireman, and the evidence at trial that the defendant bit the fireman was not a fatal variance). The indictment apprised defendant of the offense charged sufficiently for presentation of his defense.\nDefendant cites People v. Daniels, 75 Ill. App. 3d 35, 393 N.E.2d 667 (1979), which is distinguishable. In that case, the defendants were charged with armed robbery and the indictment alleged that the defendants took United States currency from the victim. Daniels, 75 Ill. App. 3d at 40, 393 N.E.2d at 672. The evidence at trial, however, only related to theft of a watch. Daniels, 75 Ill. App. 3d at 40, 393 N.E.2d at 672. Moreover, the State did not prove that the victim wore or owned a watch or that the watch was taken by one of the defendants. Daniels, 75 Ill. App. 3d at 41, 393 N.E.2d at 673. Therefore, the court reversed the armed-robbery convictions. Daniels, 75 Ill. App. 3d at 41, 393 N.E.2d at 673.\nIn contrast, here, the knife was involved whether defendant held it to Billups\u2019 neck or other parts of her body. Unlike Daniels, the variance was not so material as to warrant a new trial and did not mislead defendant in preparing his defense.\nC. Defendant\u2019s Domestic-Battery Conviction Does Not Violate the One-Act, One-Crime Rule\nDefendant next argues that if this court finds the trial court\u2019s response to the jury inquiry was correct and the knife did not have to be the instrument of physical contact, this court must vacate defendant\u2019s domestic-violence conviction to insure that the one-act, one-crime rule is not violated. While defendant forfeited this issue by raising it for the first time on appeal, the plain-error doctrine permits review of the error. See People v. Harvey, 211 Ill. 2d 368, 389, 813 N.E.2d 181, 194 (2004) (holding that the plain-error rule permitted review of the one-act, one-crime issue because a violation and the potential for surplus conviction and sentence affected the integrity of the judicial process).\nTo determine whether multiple convictions may properly be entered, courts must engage in a two-step analysis. First, the court must determine whether the defendant\u2019s conduct consisted of separate acts or a single physical act. People v. Rodriguez, 169 Ill. 2d 183, 186, 188, 661 N.E.2d 305, 306, 307-08 (1996) (finding that the aggravated-criminal-sexual-assault offense and the home-invasion offense were based on separate acts). An \u201cact\u201d is \u201cany overt or outward manifestation which will support a different offense.\u201d People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45 (1977) (finding offenses of rape and burglary were based on separate acts). While multiple convictions based on the same physical act are improper (Rodriguez, 169 Ill. 2d at 186, 661 N.E.2d at 306), a person can be guilty of two offenses even when a common act is part of both offenses (Rodriguez, 169 Ill. 2d at 188, 661 N.E.2d at 308).\nSecond, if a defendant committed more than one act, the court must then determine whether any of the offenses are lesser-included offenses. Rodriguez, 169 Ill. 2d at 186, 661 N.E.2d at 306. To determine whether an offense is a lesser-included offense, courts look to the charging instrument. People v. Bussan, 306 Ill. App. 3d 836, 839, 715 N.E.2d 820, 822 (1999). Under this approach, \u201can offense is a lesserf-] included offense if it is described by the charging instrument of the greater offense.\u201d Bussan, 306 Ill. App. 3d at 839, 715 N.E.2d at 822.\nA lesser-included offense is \u201cestablished by proof of the same or less than all of the facts or a less[-]culpable mental state (or both), than that which is required to establish the commission of the offense charged.\u201d 720 ILCS 5/2 \u2014 9(a) (West 2006). However, \u201c[a] charging instrument need not expressly allege all the elements of the [offense] if those elements can be inferred from the language of the charging instrument.\u201d People v. Baldwin, 199 Ill. 2d 1, 8, 764 N.E.2d 1126, 1130 (2002). If an offense is a lesser-included offense, multiple convictions are improper. Rodriguez, 169 Ill. 2d at 186, 661 N.E.2d at 306-07. If the offense is not a lesser-included offense, then multiple convictions are permissible. Rodriguez, 169 Ill. 2d at 186, 661 N.E.2d at 306-07. Our review is de novo. People v. Milton, 309 Ill. App. 3d 863, 868, 723 N.E.2d 798, 802 (1999).\nFor the State to properly obtain multiple convictions for connected acts that might be treated as a series of offenses, the State must apportion the acts to the offenses in the charging instrument and at trial. See People v. Crespo, 203 Ill. 2d 335, 345, 788 N.E.2d 1117, 1123 (2001). In this case, the State charged defendant with aggravated battery based on holding a knife to Billups\u2019 throat and with domestic battery for putting his hands around Billups\u2019 neck. At trial, during closing arguments the prosecutor clearly distinguished between the separate acts for the separate charges. Therefore, defendant\u2019s conduct consisted of separate acts and not a single physical act.\nDefendant argues that the jury instructions did not apportion the charges. However, defendant did not object to the jury instructions and, therefore, has forfeited any alleged error. People v. Anderson, 325 Ill. App. 3d 624, 636, 759 N.E.2d 83, 93 (2001) (failure to object to a jury instruction forfeits the issue on appeal). Moreover, even if the issue were not forfeited, defendant cites no authority for the argument that the jury instructions must apportion the acts. Finally, the evidence adduced at trial indicated discreet, insulting, or provocative acts for domestic battery and aggravated battery. Billups testified that defendant choked her until she blacked out. Billups further testified that defendant poked her head, sides, and back with a kitchen knife.\nHaving found that defendant committed more than one act, this court must next determine whether domestic battery or aggravated battery is the lesser-included offense of the other. Rodriguez, 169 Ill. 2d at 186, 661 N.E.2d at 306. The charging instrument alleged that defendant committed the offense of aggravated battery:\n\u201cIN THAT HE KNOWINGLY AND WITHOUT LEGAL JUSTIFICATION MADE PHYSICAL CONTACT OF AN INSULTING OR PROVOKING NATURE WITH DEBRA BILLUPS BY HOLDING A KNIFE, A DEADLY WEAPON, TO HER THROAT ***.\u201d\nThe charging instrument alleged that defendant committed the offense of domestic battery as follows:\n\u201cIN THAT HE KNOWINGLY AND WITHOUT LEGAL JUSTIFICATION MADE PHYSICAL CONTACT OF AN INSULTING OR PROVOKING NATURE WITH DEBRA BILLUPS, A FAMILY OR HOUSEHOLD MEMBER, BY PUTTING HIS HANDS AROUND HER NECK, SAID DEFENDANT HAVING BEEN PREVIOUSLY CONVICTED OF THE OFFENSE OF DOMESTIC BATTERY IN MCLEAN COUNTY CASE 2005 CM 1300 ***.\u201d\nClearly, the aggravated-battery conviction required a deadly weapon, an element the domestic-battery charge did not require, and the domestic battery had elements that the aggravated battery did not require \u2014 Billups\u2019 identity as a family or household member and defendant\u2019s previous conviction for domestic battery. See People v. Peacock, 359 Ill. App. 3d 326, 335, 833 N.E.2d 396, 404 (2005) (finding, based on the charging instrument, that aggravated battery and domestic violence were not lesser-included offenses of home invasion). Therefore, defendant\u2019s conviction for domestic battery does not violate the one-act, one-crime rule.\nD. Sentencing Judgment Must Be Amended To Show a One-Year Period of MSR for the Aggravated-Battery Conviction\nDefendant argues the trial court erred in sentencing him to two years\u2019 MSR on his aggravated-battery conviction. The State concedes the error, and we accept that concession.\nAggravated battery is a Class 3 felony. 720 ILCS 5/12 \u2014 4(e)(1) (West 2006). For a Class 3 felony, the MSR term is one year. 730 ILCS 5/5 \u2014 8\u20141(d)(3) (West 2006). Therefore, on remand, the trial court shall amend the sentencing judgment to reflect a one-year period of MSR for the aggravated-battery conviction.\nE. The State Is Entitled to Costs for This Appeal\nIn its appellee brief, the State seeks costs pursuant to section 4 \u2014 2002 of the Counties Code (55 ILCS 5/4 \u2014 2002 (West 2006)). In his reply brief, defendant objects, noting that costs should not be assessed against him because he received partial relief as a result of his appeal.\nHowever, \u201c[t]he successful defense of any part of a criminal judgment challenged on appeal entitles the State to a per diem fee and costs for its efforts.\u201d People v. Smith, 133 Ill. App. 3d 613, 620, 479 N.E.2d 328, 333 (1985) (assessing costs on appeal where the defendant\u2019s conviction and sentence were affirmed with the exception that the defendant was given $10 credit against fines for two days spent in jail prior to trial), citing People v. Nicholls, 71 Ill. 2d 166, 178, 374 N.E.2d 194, 199 (1978) (holding that the appeal fee shall be taxed as costs unless judgment is entered in favor of the accused in full). Because the State has in part successfully defended a portion of the criminal judgment, we grant the State its statutory assessment of $50 against defendant as costs of this appeal.\nIII. CONCLUSION\nFor the reasons stated, we affirm defendant\u2019s convictions for aggravated battery and domestic battery but remand for issuance of an amended sentencing judgment to reflect a one-year period of MSR for defendant\u2019s aggravated-battery conviction. As part of our judgment, we grant the State\u2019s request that defendant be assessed $50 as costs for this appeal.\nAffirmed as modified and remanded with directions.\nKNECHT and TURNER, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE MYERSCOUGH"
      }
    ],
    "attorneys": [
      "Daniel D. Yuhas and Ryan R. Wilson, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.",
      "William A. Yoder, State\u2019s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOEL WILLIAMS, Defendant-Appellant.\nFourth District\nNo. 4\u201406\u20141113\nOpinion filed July 29, 2008.\nDaniel D. Yuhas and Ryan R. Wilson, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nWilliam A. Yoder, State\u2019s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0327-01",
  "first_page_order": 343,
  "last_page_order": 358
}