dissenting:
I do not agree the trial court abused its discretion by refusing defendant’s nonpattern instructions.
A trial court may properly refuse a defendant’s instruction when no evidence supports his theory. People v. Dunlap, 315 Ill. App. 3d 1017, 1024, 734 N.E.2d 973, 981 (2000). While defendant advanced multiple theories throughout trial, i.e., the victim’s injuries were self-inflicted and defendant was attempting to come to the aid of his wife, he eventually argued that his conduct was justified as reasonable discipline. Defendant’s admitted conduct of grabbing the victim by the hair, pushing her to the floor, and dragging her three feet clearly exceeded the limits of reasonable parental discipline. Defendant’s own testimony therefore rendered instruction No. 5 inapplicable and unsupported by the evidence.
Additional evidence adduced during defendant’s trial failed to support defendant’s theory of reasonable discipline. Chris Miller, the victim’s boyfriend at the time of the battery, testified that T.S.R. called him at approximately 9:30 p.m. on February 25, 2003, following the altercation with her parents. Chris testified that while he talked to T.S.R., he could hear defendant “yelling” in the background. Chris called his mother, Kathy Miller, and connected her to the call, creating a three-way conference call. Chris continued to hear defendant in the background while he and his mother talked to T.S.R. Chris testified he heard defendant call T.S.R. a liar and say “its not like [Chris’s] mom never hits her kids.” Kathy Miller testified her son, Chris, called her while she was on duty as a registered nurse. Kathy testified T.S.R. was “hysterical” during the three-way conversation and was “sobbing pretty hard.” Kathy also testified to hearing defendant’s “angry” and “frustrated” voice in the background. When asked if she heard defendant say anything while she was talking to Chris and T.S.R., Kathy testified, “I heard *** a comment that I hit my kids, too. *** And then I heard *** ["']I didn’t hit you that hard.[’] ” Kathy ended her conversation with Chris and T.S.R. She testified, “I didn’t need to hear any more, I felt it was a volatile situation[,] and I was hanging up and calling the county sheriff.”
Sergeant Tim Collins of the De Witt County sheriffs department responded to the call. He testified that he spoke to T.S.R. upon arriving at the Robertses’ home. Collins testified that T.S.R. looked “very upset. She had been crying and she had a large bruise around her left eye.” During Collins’s testimony, the State introduced a photo of T.S.R. taken after the altercation. Collins confirmed that the photo fairly and accurately portrayed the condition of T.S.R.’s bruised and swollen face as it looked when he arrived at the Robertses’ home. The photo, People’s exhibit No. 1, shows discoloration under both of T.S.R.’s eyes and a large, swollen bruise under her left eye.
In light of defendant’s testimony and this additional evidence, the court correctly refused to give defendant’s instruction No. 5. While this court may have recognized the use of reasonable discipline, it did not sanction striking a child in the face, grabbing her by her hair, pushing her to the floor, and dragging her. This court recognized spanking in limited form. Swatting a young child on the behind cannot be equated to hitting and grabbing a 16-year-old young woman by the hair and dragging her three feet. Defendant’s use of force was clearly unreasonable. Defendant’s instruction No. 5 was unsupported by the evidence and was, therefore, correctly refused.
Defendant’s instruction No. 6 was also correctly refused because it inaccurately states the law. The majority explains a nonpattern instruction may be used if no instruction exists or if the existing instructions do not accurately state the law. See Mata, 316 Ill. App. 3d at 854, 737 N.E.2d at 1125. However, the proposed nonpattern instruction must also accurately state the law. 177 Ill. 2d R. 451(a); Pollock, 202 Ill. 2d at 211, 780 N.E.2d at 682. Our court has recognized a parental right to reasonable discipline. F.W., 261 Ill. App. 3d at 901, 634 N.E.2d at 1128. Defendant’s instruction No. 6 stated that a parent is justified in using force “when and to the extent that he reasonably believes such conduct is necessary for the proper and necessary discipline of his child.” (Emphasis added.) This instruction applies a subjective standard to the administration of corporal punishment by instructing the jury to consider the parent’s belief as to the reasonableness and necessity of discipline. No cases exist, including those defendant cited in support of this instruction (Walters, 211 Ill. App. 3d 102, 570 N.E.2d 6; People v. Parris, 130 Ill. App. 2d 933, 267 N.E.2d 39 (1971); Ball, 58 Ill. 2d 36, 317 N.E.2d 54), that support defendant’s claim that the “reasonable belief” of a parent that his use of force is necessary is a defense.
Further, this court, in Walters, 211 Ill. App. 3d at 105, 570 N.E.2d at 7, found that even where a jury instruction accurately states the parental right to reasonable discipline, it may be refused if it is misleading or argumentative. Here, similarly, the trial court agreed defendant’s nonpattern instructions were simple and brief, but it found they were not impartial and were argumentative. See 177 Ill. 2d R. 451(a). In light of the foregoing, I do not agree the court abused its discretion by refusing to give defendant’s nonpattern instructions. For these reasons, I would affirm the trial court.