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Appellate Court Date: 2019.06.03
11:36:09 -05'00'
People v. Bausch, 2019 IL App (3d) 170001
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ERIC D. BAUSCH, Defendant-Appellant.
District & No. Third District
Docket No. 3-17-0001
Filed March 8, 2019
Decision Under Appeal from the Circuit Court of Will County, No. 16-CM-1966; the
Review Hon. Edward A. Burmila Jr., Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Peter A. Carusona, and Amber Hopkins-Reed, of
Appeal State Appellate Defender’s Office, of Ottawa, for appellant.
James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, David
J. Robinson, and Thomas D. Arado, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE CARTER delivered the judgment of the court, with opinion.
Presiding Justice Schmidt and Justice Wright concurred in the
judgment and opinion.
OPINION
¶1 Defendant, Eric D. Bausch, appeals his conviction for domestic battery. Defendant argues
that the State failed to disprove beyond a reasonable doubt that he acted in defense of his
property during the underlying incident. Defendant also argues that his fines should have been
offset by an additional $5 in monetary credit. We affirm.
¶2 I. BACKGROUND
¶3 Defendant was charged with domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2016)) in
that he made physical contact of an insulting or provoking nature with Jovanna Bausch, a
family or household member, by grabbing Jovanna about the body.
¶4 The matter proceeded to a bench trial in Will County circuit court. Jovanna testified that
defendant was her husband and they had been married for 16 years. They had three children
together. On July 14, 2016, Jovanna drove to a marina with her and defendant’s two daughters
so they could spend the night in their boat. Jovanna and defendant had had the boat for two
years, and they both used the boat during that time.
¶5 When they arrived at the marina, Jovanna saw defendant’s vehicle. Jovanna and her
daughters entered the boat and saw defendant sleeping. Jovanna grabbed defendant’s cell
phone. She opened his Tinder page and read his messages. Jovanna explained that she believed
Tinder was “[w]here you meet girls.” Jovanna saw that defendant had been sending messages
to other women, and she became angry. Jovanna took defendant’s phone to her vehicle and
searched through it. She took pictures of things on defendant’s phone. Jovanna then went back
to the boat and returned defendant’s phone. At some point after Jovanna returned to the boat,
defendant woke up.
¶6 Jovanna took the keys, title, and deed to the boat. Jovanna testified that her name was not
on the title to the boat. Jovanna testified that defendant saw her take the keys to the boat, but he
did not see her take the deed and title. Jovanna told defendant that she found out he had been
talking with women. Jovanna walked to her vehicle, and defendant followed her. Jovanna and
her daughters entered her vehicle. Defendant asked Jovanna for the boat keys and the “papers
for the boat.” Defendant became angry. Defendant entered Jovanna’s vehicle and sat down.
Defendant said he was not leaving until he got the keys and papers. Defendant and Jovanna
continued to argue. Eventually, defendant exited Jovanna’s vehicle and walked toward his
vehicle.
¶7 Jovanna began driving out of the parking lot. When she passed defendant’s vehicle,
defendant walked in front of Jovanna’s vehicle and stopped her. Defendant approached
Jovanna’s vehicle and tried to take Jovanna’s purse through the open driver’s side window.
Jovanna’s purse was between the driver’s seat and passenger’s seat. Defendant touched the
purse and tried to open it. Jovanna grabbed the purse with two hands. Defendant tried to take
the purse away from Jovanna, and he grabbed her arm in doing so. One of Jovanna and
defendant’s daughters exited the vehicle and jumped on defendant’s back. The other daughter
began hitting defendant. Two people came over and told defendant to move away. Defendant
stepped away. Defendant sat in the backseat of Jovanna’s vehicle until the police arrived.
¶8 The parties stipulated that Officer Dustin Carlson would testify that Jovanna and her
daughters were emotionally distraught and crying hysterically when he arrived on the scene.
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Carlson would also testify that Jovanna had red blemishes and marks on both of her arms.
Carlson would testify that Jovanna requested that she be examined by emergency medical
services personnel because her arms were burning.1
¶9 The State rested.
¶ 10 Defendant testified that he was sleeping in his boat on the evening of the incident.
Defendant had been sleeping in the boat because he and Jovanna had been having marital
problems and were separated. Defendant woke up when Jovanna placed his cell phone in front
of him. Jovanna started talking about defendant’s Tinder messages. Jovanna walked out of the
cabin and said she had the keys to the boat. Defendant followed Jovanna to her vehicle.
Defendant entered the vehicle and sat in the back seat. Defendant and Jovanna argued about
defendant’s Tinder page. Defendant told Jovanna that taking the keys to the boat was not “that
big of a deal” because he could change the ignition.
¶ 11 Defendant exited Jovanna’s vehicle and walked over to his vehicle. Defendant saw that
“[a]ll of the boat papers” were missing. Defendant stated that the papers had to stay with the
boat. Defendant was the owner of the boat, and Jovanna’s name was not on any of the papers.
Defendant stepped in front of Jovanna’s vehicle. He approached the driver’s side window and
told Jovanna that she could not take the boat papers. They argued for a while. Defendant
realized that the boat papers were not in the visor of Jovanna’s vehicle. Defendant grabbed
Jovanna’s purse. Defendant did not see Jovanna put the papers in her purse, but he suspected
the papers were in the purse. Defendant explained: “It’s a lot of papers. I would have noticed
them in the van earlier when I was sitting in the backseat trying to get the keys.” Defendant
also said that he believed that Jovanna was “not just going to shove those somewhere.”
¶ 12 Defendant pulled the strap of the purse “pretty hard.” Jovanna grabbed the purse, and
defendant then pulled the purse strap with two hands. They struggled over the purse for 5 to 10
seconds, and the purse strap broke. Defendant only touched the purse strap; he did not grab
Jovanna. One of defendant and Jovanna’s daughters jumped on defendant’s back. The other
daughter did not hit him. Defendant sat in the backseat of Jovanna’s vehicle while they called
the police. He did not speak to Jovanna at that time. Defendant testified that he did not tell a
police officer that he saw Jovanna remove the boat keys and papers from his vehicle on the
night of the incident.
¶ 13 The defense rested.
¶ 14 The State called Officer Andrew Chapple as a rebuttal witness. Chapple testified that he
responded to a call regarding a disturbance at the marina at approximately 9:20 on July 14,
2016. When he arrived on the scene, he observed several crying females and defendant
standing together. Chapple spoke with defendant. Defendant told Chapple that he observed
Jovanna remove his boat keys and papers from his vehicle.
¶ 15 During closing argument, defendant argued that he was attempting to defend his property,
which Jovanna had stolen from him. Defendant contended that he took reasonable steps to
secure his property and asked that the court find him not guilty based on the affirmative
defense of defense of property.
1
The State asserts in its brief that the stipulation is not contained anywhere in the record.
However, the stipulation appears on page 14 in the common-law record. The stipulation is
handwritten and signed by the parties’ attorneys.
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¶ 16 The court found defendant guilty of domestic battery. The court stated that Jovanna’s
injuries resulted from insulting and provoking contact from defendant. The court reasoned: “I
can’t think of anything that would be more insulting or provoking than for a man to try to pull
a purse away from a woman, especially under the circumstances of him not knowing whether
the documents he was seeking were in it.” The court also noted that the fact that the daughters
believed they needed to defend their mother showed that the conduct was insulting or
provoking.
¶ 17 Regarding the affirmative defense of defense of property, the court stated: “There is
nothing to indicate in this case that her presence on the boat, her access to the keys, her access
to those documents was [tortious] or criminal trespass or criminal abuse in any fashion.” The
court reasoned that, even if Jovanna’s name was not on the title documents, “the fact that these
people were married would transcend the signatures on the title documents unless there was
some proof ultimately that he had the property before they were married.”
¶ 18 The court sentenced defendant to 18 months’ conditional discharge. The court asked
defendant how long he had been in custody prior to sentencing. Both defendant and defense
counsel advised the court that defendant had been in custody for two days. The court gave
defendant the statutory $5-per-day monetary credit to be applied against his fines in the
amount of $10 for the two days defendant served in custody.
¶ 19 II. ANALYSIS
¶ 20 A. Sufficiency of the Evidence
¶ 21 Defendant argues that the trial evidence was insufficient to prove him guilty of domestic
battery beyond a reasonable doubt. Specifically, defendant argues that the State failed to
disprove that his use of force was justified by the affirmative defense of defense of property.
We find that, when viewed in the light most favorable to the State, the trial evidence proved
beyond a reasonable doubt that defendant’s use of force was not justified.
¶ 22 To prove defendant guilty beyond a reasonable doubt of domestic battery, the State was
required to establish that defendant knowingly, without legal justification, made physical
contact of an insulting or provoking nature with a family or household member. 720 ILCS
5/12-3.2(a)(2) (West 2016). Regarding the affirmative defense of defense of property, section
7-3(a) of the Criminal Code of 2012 (Code) (id. § 7-3(a)) provides: “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 prevent or terminate such other’s trespass on or other tortious or
criminal interference with *** personal property, lawfully in his possession ***.” At the trial,
defendant presented evidence supporting this affirmative defense through his own testimony.
Accordingly, the State was required to disprove the affirmative defense in addition to proving
the elements of the charged offense. Id. § 3-2(b); People v. Washington, 326 Ill. App. 3d 1089,
1092-93 (2002).
¶ 23 When presented with a challenge to the sufficiency of the evidence, “ ‘the relevant
question is 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. Collins, 106 Ill. 2d 237, 261 (1985)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
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¶ 24 Defendant does not argue that the State failed to prove that he made physical contact of an
insulting or provoking nature with Jovanna or that Jovanna was a family or household member.
Rather, defendant argues that the State failed to show that defendant’s use of force was
unjustified. Specifically, defendant argues that the State failed to disprove that defendant acted
in defense of his property pursuant to section 7-3(a) of the Code (720 ILCS 5/7-3(a) (West
2016)).
¶ 25 We find that, when viewed in the light most favorable to the State, the trial evidence
established beyond a reasonable doubt that defendant’s use of force against Jovanna was not
justified. Even assuming that the boat was solely defendant’s property, any belief that
defendant’s use of force was necessary to retrieve his property was unreasonable under the
circumstances. Defendant admitted he did not know that the boat keys and title papers were in
Jovanna’s purse. Rather, he suspected these items were in the purse because he did not see
them in the visor of Jovanna’s vehicle. Defendant’s mere suspicion that his property was
located in Jovanna’s purse did not justify him in forcefully grabbing Jovanna’s arms or purse
(which was her property). Under these circumstances, defendant’s use of force against Jovanna
was excessive and unreasonable.
¶ 26 We acknowledge that the circuit court rejected defendant’s affirmative defense on a
different ground—namely, that Jovanna had a marital property interest in the boat. We decline
to adopt the circuit court’s reasoning on this point. However, we may affirm the judgment of
the circuit court on any basis supported by the record. People v. Anderson, 401 Ill. App. 3d
134, 138 (2010).
¶ 27 B. Monetary Credit
¶ 28 Defendant argues that he is entitled to an additional $5 in monetary credit to be applied
against his fines because the record shows that he was in custody prior to sentencing for three
days rather than two days. We find that the record does not show with sufficient clarity that
defendant is entitled to the requested relief.
¶ 29 Section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14(a) (West
2016)) provides: “Any person incarcerated on a bailable offense who does not supply bail and
against whom a fine is levied on conviction of the offense shall be allowed a credit of $5 for
each day so incarcerated upon application of the defendant.” An application for monetary
credit under section 110-14 may be raised at any time and at any stage of court proceedings if
“the basis for granting the application of the defendant is clear and available from the record.”
People v. Caballero, 228 Ill. 2d 79, 88 (2008). “Whether a defendant received proper credit
against his fine is a question of law that we review de novo.” People v. Sulton, 395 Ill. App. 3d
186, 189 (2009).
¶ 30 Here, the record does not show with sufficient clarity that defendant spent three days in
presentence custody rather than two. Defendant and his attorney both advised the circuit court
that defendant spent two days in presentence custody. A mittimus for failure to give bail
appearing in the record shows that defendant failed to give bail on July 15, 2016, and was
remanded to the confinement of the county jail on that day. A bail bond deposit appearing in
the record shows that defendant posted bond on July 16, 2016. Based on defendant’s and
defense counsel’s statements to the court, the mittimus for failure to give bail, and the bail
bond deposit, it is clear that defendant spent two days in presentence custody.
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¶ 31 Defendant contends that the record shows that he spent an additional day in custody
because he was taken into custody shortly after 9 p.m. on July 14, 2016. In support of his
contention, defendant cites Officer Chapple’s testimony that he responded to a call for a
disturbance at the marina at approximately 9:20 p.m. on July 14, 2016. However, Chapple did
not testify as to when defendant was taken into custody. Defendant also cites defense counsel’s
statement during closing argument that defendant was arrested after the police arrived.
However, defense counsel’s closing argument was not evidence, and it did not establish
precisely what time defendant was taken into custody. Based on the record before us, it is
possible that defendant spent a portion of July 14, 2016, in custody, but it is also possible that
he was not taken into custody until after 12 a.m. on July 15, 2016.
¶ 32 Because the basis for granting defendant’s application for an additional day of monetary
credit is not “clear and available from the record” (Caballero, 228 Ill. 2d at 88), defendant has
not established that he is entitled to the requested relief. See People v. Lopez, 229 Ill. 2d 322,
344 (2008) (“[T]he appellant bears the burden of providing a reviewing court with a complete
record sufficient to support his claims of error, and any doubts that arise from the
incompleteness of the record will be resolved against the appellant.”).
¶ 33 III. CONCLUSION
¶ 34 The judgment of the circuit court of Will County is affirmed.
¶ 35 Affirmed.
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