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People v. Ward, 2021 IL App (2d) 190243 Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. Caption JEFFREY N. WARD, Defendant-Appellant. District & No. Second District No. 2-19-0243 Filed July 7, 2021 Rehearing denied July 30, 2021 Decision Under Appeal from the Circuit Court of Kane County, No. 18-CM-1380; the Review Hon. Clayton L. Lindsey, Judge, presiding. Judgment Reversed. Counsel on Jeffrey N. Ward, of Geneva, appellant pro se. Appeal Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick Delfino, Edward R. Psenicka, and Barry W. Jacobs, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People. Panel JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justice McLaren concurred in the judgment and opinion. Justice Zenoff concurred in part and dissented in part, with opinion. OPINION ¶1 Defendant, Jeffrey N. Ward, appeals his conviction of the offense of domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2018)) following a jury trial in the circuit court of Kane County. Because the trial court erred in denying defendant’s motion for a directed verdict, we reverse defendant’s conviction. ¶2 I. BACKGROUND ¶3 On June 1, 2018, defendant was involved in a verbal altercation with police officers at the scene of a traffic accident involving his 18-year-old son, Matthew. As defendant was arguing with one of the officers, defendant’s wife, Leslie Ward, stepped between defendant and the officer. Defendant pushed Leslie to the side and continued to argue. Defendant was arrested and charged by complaint with two counts of domestic battery. Count I alleged that defendant knowingly caused bodily harm to his wife, Leslie O. Ward, by pushing her. 720 ILCS 5/12- 3.2(a)(1) (West 2018). Count II alleged that defendant made contact of an insulting nature with Leslie O. Ward by pushing “her with both hands in her shoulder and neck area, causing her to lose her balance and take a few steps back.” See 720 ILCS 5/12-3.2(a)(2) (West 2018). The complaint was signed by Officer Matthew Hann. Leslie refused to cooperate and insisted that her husband did nothing wrong. ¶4 A. Assignment to a Judge From the Fifteenth Judicial Circuit ¶5 The chief judge of the Sixteenth Judicial Circuit requested that a judge from another judicial circuit be assigned to hear defendant’s case. On June 4, 2018, our supreme court ordered the chief judge of the Fifteenth Judicial Circuit to assign a judge from that circuit to preside over defendant’s case. Judge Redington was assigned to hear the case. Defendant moved for substitution of judge. 725 ILCS 5/114-5(a) (West 2018). Judge Clayton Lindsey from the Fifteenth Judicial Circuit was assigned to preside over the proceedings, all of which took place in Kane County. ¶6 B. Motion to Dismiss ¶7 Prior to trial, defendant filed a motion to dismiss, arguing that Leslie told the arresting officer, Sergeant George Carbray, that the “push” did not constitute domestic battery and that “[defendant’s] arrest was just another act of harassment against her family from the Geneva Police Department.” A copy of Leslie’s written statement from June 1, 2018, was attached as an exhibit. The State’s response argued that the victim’s desire to drop charges is not grounds for dismissal. The trial court denied defendant’s motion. ¶8 C. State’s Motion in Limine ¶9 Also prior to trial, the State filed a motion in limine to bar Leslie from testifying that she “consented to the physical contact.” The State argued that Leslie’s “consent” has no bearing on whether the defendant committed a domestic battery on June 1, 2018, because, according to People v. Ford, 2015 IL App (3d) 130810, “consent is neither a statutory nor a common law defense to domestic battery.” Throughout the prosecution of the case, the State posited that the fact that Leslie did not feel insulted or provoked was irrelevant. The State argued that allowing

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Leslie to testify that she consented would be “misleading to the jury as it would be misstating the law.” The trial court barred defendant from arguing that “the alleged victim consented directly or indirectly to the touching that is alleged to have occurred in this matter.” The trial court ruled that Leslie or other witnesses could testify as to “what [they] observed or experienced related to the incident in question.” The trial court noted that Ford does state that “consent is a defense to what would otherwise be a minor sort of offensive touching; medical procedures and batteries that are incidents to participating in certain sporting events,” but it stated that, “by definition, a domestic battery is not a minor sort of offensive touching.”

¶ 10 D. Trial Testimony ¶ 11 Prior to trial, the State nol-prossed count I, domestic battery alleging bodily harm. At trial, Barbara Stilling testified that on June 1, 2018, at about 6:30 p.m., she was involved in a minor traffic accident while heading west on Keslinger Road in Geneva. She was rear-ended by a vehicle driven by Matthew. Stilling called the police, and Hann responded to the scene. The vehicles were moved to a parking lot. Defendant arrived on the scene and spoke to his son first and then to Officer Hann. Stilling heard defendant say “something to the effect like ‘I see a f*** a*** here and it’s you,’ ” referring to Hann. A short time later, Carbray arrived. Stilling said that, while defendant was speaking to Carbray, defendant leaned forward and was “getting in [Carbray’s] face.” Stilling saw Leslie come between the defendant and Carbray “to try to diffuse the situation.” Leslie said something, but Stilling did not hear what she said. Stilling then saw defendant use his right hand to push Leslie off to the right, either on the “neck or upper shoulder.” Leslie “stumbled a little bit but did not fall.” Stilling did not hear “defendant say anything to anyone present at the time.” At the end of Stilling’s direct examination, the prosecutor asked, “When you observed the defendant shove Mrs. Ward, how did that make you feel?” Stilling responded, “I was surprised, startled that it actually happened.” On cross- examination, Stilling added that she was “a little shocked” to see defendant move his wife out of the way. Stilling acknowledged that, when she spoke to Carbray, she never told him that she was “startled” or “shocked” but that she may have used the word “surprised.” At the time of the push, Leslie was facing defendant, and her back was to Carbray. ¶ 12 Leslie testified that she is defendant’s wife and lives with him in their Geneva home, along with their two sons, aged 19 and 22 at the time of trial. On June 1, 2018, Matthew, their younger son, texted and called his parents to tell them that he had been involved in a car accident. Defendant and Leslie drove separately to the scene. Defendant left their home first. Leslie let the family’s dogs in and then left to drive to the scene. When Leslie arrived, defendant was speaking to a police officer. He was not happy. Leslie stated that the Geneva Police Department had “not treated him particularly well.” Leslie got in between defendant and the officer he was speaking to. Leslie did not recall if she said anything to defendant but stated that she might have placed her hand on his chest. She said that defendant never told her to “shut up.” When asked whether defendant shoved her “out of the way,” she responded “No” and said that the contact was similar to passing someone in a hallway and “you go, okay, you need to move.” Leslie said that defendant’s attention was on the police officer in front of him and that he “just moved [her] out of the way.” He did so quickly but held on to her so she would not fall. The following exchange then took place: “PROSECUTOR: Do you want to be here testifying today? LESLIE WARD: Does anybody?

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PROSECUTOR: I need an answer, ma’am. LESLIE WARD: I would prefer to be elsewhere. I think this is a complete farce because there is nothing, nothing, that [defendant] has ever done to me to hurt me. Ever. He has not insulted me. He has never hurt me. He supports me. He has done an incredible job helping me do what I do now.” Leslie testified that, when defendant was arrested, she expressed her “displeasure to the police officers” and she “wrote a statement indicating what had happened.” Leslie said that she stepped between defendant and the officer because, whenever defendant is involved “with the Geneva police, they tend to treat him very poorly and unfairly” but they do not tend to do anything to her. ¶ 13 On cross-examination, Leslie testified that she and defendant had been married for 27 years. Leslie is a middle school teacher and has her master’s degree. She testified that she was not insulted, shocked, or provoked when defendant moved her out of the way. Leslie testified that, after defendant pushed her, the officer said “[t]hat was domestic abuse” and that he was a “mandated reporter.” Leslie told him that as a teacher she was also a mandated reporter and that what defendant did should not be reported. She told the police that she did not want defendant arrested and that she was “very unhappy with the way he was being treated.” Leslie prepared a written statement “right after [the incident] happened.” She made it very clear to the police that she was unhappy with the whole ordeal. The police officer asked her if she would like to make a statement, and she said that she would. Defense counsel showed Leslie a copy of her written statement, which she identified. Defense counsel moved to admit her statement into evidence. The prosecutor objected, stating, “[y]ou cannot admit a consistent statement into evidence.” Defense counsel responded that the victim’s statement in a domestic battery case at the “time of the alleged incident is always relevant as to whether or not the contact was insulting or provoking.” Defense counsel argued that Leslie’s response was relevant “as to whether or not she perceived the contact as being insulting or provoking.” The trial court sustained the State’s objection. ¶ 14 Hann testified that he responded to the accident involving Stilling and Matthew. When defendant arrived on the scene, defendant called Hann a “f*** a***.” Hann testified that defendant was “highly agitated” and spoke in an “angry,” “elevated” tone. Hann recognized defendant and Leslie, who arrived shortly after defendant. After Sergeant Carbray arrived, Hann continued his traffic crash investigation. Hann testified that he heard Carbray ask Leslie how old her son was and Leslie’s response that he was 18. At that point, Hann “observed [defendant] scream [for her to] shut up and [shove Leslie] with both of his hands.” Hann said that Leslie lost her balance and took several steps to stay on her feet. Hann heard Carbray tell defendant that “he just committed a domestic battery[,] and he was placed under arrest at that time.” Hann said that Leslie was not cooperative and that an officer with the Geneva Police Department signed a complaint against defendant. He explained that this “is standard protocol at the Geneva Police Department.” Over defense counsel’s objection, Hann testified that “[t]here’s a hesitancy for the victim to sign complaints against the offender” and “that’s what happened in this case.” ¶ 15 On cross-examination, Hann acknowledged that he knew that defendant was a vocal critic of the Geneva Police Department. Hann acknowledged that he did not document in his report that defendant was aggressive, upset, or angry but noted that he did use the word “agitated” to describe defendant’s demeanor. Hann testified that he was one of the responding officers to

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the Ward home when the house and defendant’s truck were firebombed. Hann testified that the Geneva Police Department does not equip its squad cars with in-squad cameras and the police officers are not equipped with body cameras. ¶ 16 Carbray, an 18-year veteran of the Geneva Police Department, testified that he was called away from the scene of another accident to respond to the scene involving Stilling and Matthew. He said that he went there because defendant “showed up on the scene and was agitated.” Defendant looked at Carbray and said something to the effect of, “I can’t believe that this f*** a*** is here.” Carbray was asked if he knew defendant, and he replied that he did and that he handled calls with defendant on “countless occasions,” totaling at least a dozen incidents. The prosecutor asked Carbray if he liked defendant, and Carbray responded, “No.” When asked, “Why not?” Carbray responded, “I believe he’s a bully who creates a lot of issues and tries to manipulate people.” According to Carbray, defendant was upset both because his son was involved in an accident and because Carbray was at the scene. Carbray characterized defendant as “unhinged” to the point of “physically shaking.” Carbray acknowledged that he raised his own voice while telling defendant to calm down. He stated that he told defendant that he was interfering in the investigation and that his son is “18 who is an adult.” Carbray said that it would not have been a problem for defendant to be at the scene if he had been “more calm” and that the problem was defendant’s “attitude.” Carbray testified that Leslie was standing next to him when he asked her how old her son was and that, “as soon as she said 18, Mr. Ward took both hands[,] physically pushed her on the shoulder and neck area, and then she went a couple of steps to the side and regained her balance.” Carbray “immediately told Mr. Ward that what he did was a domestic battery and he cannot push his wife.” Carbray stated that he did not immediately arrest defendant. As the “back and forth” between them continued, defendant did not calm down, so Carbray placed defendant under arrest. Carbray testified that both state law and Geneva Police Department policy required that, when a police officer “firsthand observes a domestic violence act occur, we are immediately to protect the victim by making an arrest.” He stated that Leslie did not want her husband arrested but that it had “no bearing” as to whether he was obligated to make an arrest. Over defense counsel’s objection on relevance grounds, Carbray testified that police officers often sign complaints in domestic violence cases “[b]ecause the spouse requires something from the other spouse, be it housing, money, they want to rectify, they don’t want to ruin whatever is going on inside the family for the kids. So often that can be the case.” ¶ 17 Carbray denied having a vendetta against defendant and believed that he had treated defendant fairly. At the police department, Carbray had a “lengthy discussion” with defendant about “what constituted domestic violence.” He told defendant that pushing his wife with two hands is domestic violence. Defendant said that he did push his wife. Carbray clarified that he arrested defendant “because he committed domestic battery,” not because he was not calming down. ¶ 18 On cross-examination, Carbray acknowledged that he had been to the Ward home on numerous occasions. Carbray knew that defendant was a journalist who writes about the Geneva Police Department’s incompetency. In his report, Carbray did not use the words “unhinged” or “physically shaking” to describe defendant. Carbray responded to the Ward residence when the house and truck were firebombed. On another call, people were throwing garbage at the Ward house and trying to break in. Carbray also recalled that defendant had complained about loud helicopter noise coming from Delnor Hospital, which is close to the

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Ward home. Carbray said that sometimes defendant is pleased with the police and sometimes he is upset with them. Carbray said that, prior to testifying, he looked over the “policy” and “the law.” Carbray stated that, when defendant pushed Leslie, they were standing side by side and that Leslie was not standing between him and defendant. After several questions about bias, Carbray acknowledged that his dislike for defendant is a bias. When Carbray was asked what Leslie said to him when defendant pushed her, the prosecutor objected on the grounds of hearsay, and the trial court sustained the objection. Carbray did acknowledge that Leslie told him that arresting defendant was “just another form of harassment against the Ward family.” ¶ 19 On redirect examination, the prosecutor asked Carbray, “On each and every occasion that you responded to the defendant in the past, as asked on cross examination, was he arrested every single time?” Carbray responded, “No, he was not.” The State then rested.

¶ 20 E. Motion for a Directed Verdict ¶ 21 At the close of the State’s evidence, defendant made a motion for a directed finding. ^[1] Defense counsel argued that no witness testified “to having been insulted.” Counsel pointed out that Leslie “expressly said that she was not insulted.” Counsel argued that the only issue is whether the contact between defendant and Leslie was insulting, not defendant’s “demeanor towards any other individual.” Counsel noted that there were four different versions of events, before stating “Mrs. Ward was, by varying accounts, moved one step or two steps or three steps. Mrs. Ward herself said that Mr. Ward held on to her.” Counsel stressed that this was a “minor contact” that “should not be a question that goes to the jury.” ¶ 22 The prosecutor noted that, in ruling on a motion for a directed verdict, “the [c]ourt views all of the evidence and testimony that has been presented in the light most favorable to the State.” The prosecutor noted that there was evidence that defendant yelled at Leslie to “shut up” and “then pushed [Leslie] out of the way.” The prosecutor argued that defendant “shoved her out of the way because he didn’t like what she was saying” and that defendant “was enraged with the Geneva Police Department.” The prosecutor said that this was not a minor contact and that it was a fact question “up to the jury.” The prosecutor then made the following argument: “What I would also like the court to consider is the fact in the simple reading of the statute, the simple reading of the statute reads, that the defendant made physical contact of an insulting and provoking nature with Leslie Ward. It does not state anywhere in the charging documents or the simple reading of the statute that she herself has to be insulted or provoked. It is the nature of the act that is insulting and provoking.” The prosecutor then argued that the fact that Stilling was “shocked” was not impeached and that Stilling “was shocked and insulted and provoked by this.” The prosecutor argued that Carbray’s immediate statement to defendant, that defendant “just committed domestic battery in front of [him],” was evidence that the contact was “insulting and provoking.” ¶ 23 The defense responded by arguing that there was “no evidence that this was insulting.” Counsel acknowledged that defendant’s conduct, as described, would irritate him if he were a police officer and that maybe they should have charged defendant with “obstruction or something else,” but not with domestic battery.

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¶ 24 The trial court pointed out that, while the State needed to show that defendant “[made] physical contact of an insulting or provoking nature with a family member,” witnesses are not required to use the words “insulting or provoking.” The court then stated as follows: “The [c]ourt is going to deny the motion for directed verdict. It’s a factual question that the jury is going to decide. Certainly the terms [‘]insulting[’] or [‘]provoking[’] are common enough for a jury to determine whether or not the testimony as presented is sufficient. That will be what the question ends up being for the jury to determine.” (Emphasis added.) ¶ 25 Defendant elected not to testify and rested without presenting any evidence. Defense counsel, citing People v. Connolly, 322 Ill. App. 3d 905 (2001), again asked that the trial court enter a directed verdict. Counsel cited the discrepancies in the “four different stories” and the lack of any evidence that anyone was “insulted.” Counsel noted that “Mrs. Ward said I’m not— he moved me to the side. I’m not upset with it.” The trial court acknowledged “the differences in the four witnesses” and said that the defense had “done a good job” but that “it’s a factual determination as to whether a reasonable person would find [the contact] to be insulting.” The court said that the question of whether defendant “was agitated at the police or whether he was agitated at the alleged victim in this case was ‘something for the jury to determine and I’m not determining that at this time.’ ” ¶ 26 Defense counsel then made a motion for a mistrial based on the State’s failure to “perfect impeachment” of Leslie when she was asked if she spoke to defendant while he was at the police department and if he told her what to say at bond call. Leslie denied both speaking to defendant and that he told her what to say. The trial court denied the motion. ¶ 27 During closing argument, the State argued that defendant took out his frustration with his son and the police “on his wife when he committed a domestic battery on her.” ¶ 28 The defense argued that the evidence showed only that defendant moved Leslie over and that there was no evidence that she was insulted. Counsel argued that Leslie told Carbray at the time that she was not “offended or hurt” and that the police were “harassing [her] family.” During rebuttal argument, the prosecutor acknowledged that Leslie did not want charges pressed against defendant. The prosecutor argued that, if it were up to Leslie, the domestic battery “would have never been charged.” The prosecutor argued that “[t]he People are complaining that this defendant committed a domestic battery and he needs to be held accountable.” Next, the prosecutor noted that Leslie’s dislike for her (prosecutor) “was palpable,” that Leslie believed that the “whole thing was a farce,” and that Leslie “doesn’t believe that this is a crime. It’s unfair to her.” The prosecutor argued that “that is not the law” and that “[i]t doesn’t matter that Mrs. Ward doesn’t think what happened to her is a crime[,] because it is. She was a victim of domestic battery and that’s why you should care.” This theme continued as the prosecutor argued, “[i]f a victim of domestic battery cannot get on the stand and say she cares about what happened to her, the People of the State of Illinois will tell you that what happened to her is not okay.” The prosecutor argued that defendant was putting Leslie “in her place” and yelled at her to “ ‘shut up.’ How humiliating.” ¶ 29 The prosecutor acknowledged that “Mrs. Ward might not want the charges pressed against this defendant” and suggested that “[t]here’s a ton of reasons why.” The prosecutor then argued that the “kind of conduct exhibited by the defendant in the open, in front of everybody, putting his wife in her place, literally moving her out of the way, that is domestic battery.” The prosecutor argued that there was no evidence to suggest bias on the part of the Geneva Police

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Department, because defendant’s son was given only a warning ticket for failure to reduce speed. The jury found defendant guilty.

¶ 30 F. Posttrial Proceedings ¶ 31 Defendant filed a lengthy posttrial motion, requesting that the trial court vacate the jury verdict and enter a finding of not guilty or, in the alternative, grant defendant a new trial. The motion challenged the assignment of a judge from another circuit, the refusal of defendant’s request to present consent as a defense, and the trial court’s denial of defendant’s motion for a directed verdict based on the insufficiency of the evidence. The motion raised additional claims that are not relevant to this appeal. ¶ 32 In its response to defendant’s posttrial motion, the State argued that the “victim in a domestic battery case does not dictate whether charges are filed against the defendant.” The State also argued that, when an officer “observes an act of domestic battery,” the officer “does not have the independent discretion to not make an arrest.” The State argued that it did prove that “defendant’s actions were insulting to Leslie Ward because the jury returned a verdict of guilty.” The State argued that Barbara Stilling’s testimony that she was “shocked” by defendant’s action was “evidence of insulting conduct.” ¶ 33 During argument on defendant’s posttrial motion, defense counsel argued that the police did have discretion to not make an arrest and that the Geneva Police Department “[did] not like [his] client.” Counsel argued that defendant is an outspoken critic of the system and has “been a very outspoken critic of judges” and “of the Geneva Police Department.” Counsel argued that Leslie should have been allowed to testify that she consented. Counsel argued that it was error to instruct the jury on “insulting or provoking” when the charge specified only “insulting.” Defense counsel argued that the assignment of an out-of-circuit judge was a “mystery” to him and that no explanation was given as to why that occurred. ¶ 34 The prosecutor argued that defendant cited no case authority for the proposition that it was error to have an out-of-circuit judge assigned. The prosecutor also noted that defendant filed a motion for substitution of judge within the statutory time frame, so “he was made aware of it.” The prosecutor argued that, “[p]ursuant to 750 ILCS 60/304(a)(1) (West 2018), it actually cites to how when a police officer observes an act of domestic violence he is required to make an arrest.” The prosecutor again cited Stilling’s testimony as evidence that the contact was “insulting or provoking.” The prosecutor contended that “it comes down to the nature of the act.” ¶ 35 The defense responded that the State had not met its burden where there was no evidence that Leslie was insulted or provoked. Counsel agreed that, in order to prove insulting or provoking contact, the victim “does not have to testify that he or she was provoked.” However, counsel argued that, “in this case, the victim didn’t react at all. In fact, she reacted the other way.*** She said, ‘I don’t want him arrested. I am not insulted in any[ ]way.” ¶ 36 The trial court ruled that the assignment of an out-of-circuit judge was not an appropriate basis for a posttrial motion. The trial court stated that it was “interesting” that the victim did say “she was not insulted” and “not provoked.” The trial court commented: “She even used the words that she didn’t find the touching to be offensive. Her opinion of that is also not controlling. It is the jury that determines what—although— although what the victim says is certainly evidence and certainly can be used. If that is

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all we had to do, there would be—every time a wife took the stand and said, ‘I don’t want this charge [anymore]’ or ‘I want to go back to him,’ we would never have a domestic battery conviction. And so I find that argument completely missing the point of what the jury did here. And I stand by my reading of the Ford case. It is, again, descriptive. And this—and I don’t believe that a victim can consent to a domestic battery that is defined as a physical contact of an insulting or provoking nature. That[,] in and of itself[,] takes it out of the non-offensive touching.” The trial court stated that the argument regarding incomplete impeachment of Leslie was not well founded. Next, the trial court said that the “defense chose to put all of their eggs in the basket that the Geneva Police Department was biased against Mr. Ward.” The court noted that defendant “is certainly entitled to have whatever opinion he wants to have. He didn’t take the stand.” The trial court said that, through the cross-examination by the defense, “you could tell” that “[defendant] didn’t like the Geneva Police Department.” The court said that defendant counted on convincing the jury that the only reason he was prosecuted was the bias of the Geneva Police Department and that “he guessed wrong. The jury convicted him.” The court commented that “it was a credibility issue” and that three other witnesses besides Leslie “testified as to the touching, as to the incident.” For that reason, the court denied the posttrial motion. ¶ 37 Following argument on the posttrial motion, the trial court conducted a brief sentencing hearing. The prosecutor began by stating that “defendant does not have any criminal history to report to the court.” The State requested a sentence of probation or conditional discharge with a number of conditions, including domestic violence counseling and a mental health evaluation. Defense counsel argued that “there is no history of domestic violence” and that what occurred was “a domestic touching, not of violence.” Leslie then addressed the trial court. She said, “[W]hat we are doing here is taking away my right to decide whether or not I was insulted.” She said that defendant did not do anything harmful to her and that “[she] was not allowed to decide whether [she] was insulted. Which is insulting.” ¶ 38 The trial court commented, “[I]t appears to me that more than domestic violence there is an anger issue.” Defendant was sentenced to one year of conditional discharge and was ordered to undergo an anger management assessment and any recommended treatment. Defendant timely appealed.

¶ 39 II. ANALYSIS ¶ 40 Defendant raises the following issues on appeal: (1) whether defendant’s case was “improperly transferred to Ogle County at the request of the chief Judge of the 16th Circuit and denied defendant due process,” (2) “whether the trial court abused its discretion in denying defendant’s motion for a directed verdict,” (3) “whether the trial court erred in denying a modified version of the Illinois Pattern Jury Instructions that accurately conveys the law,” and (4) whether the State failed to prove defendant guilty of domestic battery (making contact of an insulting or provoking nature) beyond a reasonable doubt. The first two issues are dispositive.

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¶ 41 A. Assignment of a 15th Circuit Judge ¶ 42 In his brief, defendant argues that his case was transferred “to a county outside of the 16th Judicial Circuit,” which resulted in his “being denied a fair trial from the outset.” We have no authority to overrule our supreme court. “General administrative authority over all courts is vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules.” Ill. Const. 1970, art. VI, § 16. The constitution specifically provides that “[t]he Supreme Court may assign a Judge temporarily to any court.” Id. The defendant was tried in Kane County, and the assignment of Judge Lindsay to preside over his case was clearly within the constitutional authority of the Chief Justice.

¶ 43 B. Defendant’s Motion for a Directed Verdict ¶ 44 Defendant argues that the State presented “no evidence or testimony” to prove that “the victim felt intimidated, surprised, startled, alarmed, offended, insulted, or provoked in any way.” Defendant acknowledges that proof of insulting or provoking contact does not require that the victim testify that the contact was insulting or provoking and that “the trier of fact can make that inference from the victim’s reaction at the time.” Defendant argues that “the fact that observers may have objected to [defendant’s] behavior doesn’t transform it into a criminal offense, nor should it.” Defendant also argues that the State’s evidence was insufficient as a matter of law to prove that defendant “knowingly made contact with his wife in an undignified or contemporaneous [sic] manner.” Defendant asks that we review de novo of the denial of a motion for directed verdict. ¶ 45 The State argues that the “circumstantial evidence, including the factual context in which defendant’s pushing of Leslie Ward[,] was sufficient to establish beyond a reasonable doubt that his contact with Leslie Ward was of an insulting nature.” The State argues that, “considering the consistency of the evidence presented through Stilling and the police officers, as well as the uncontroverted fact that Leslie Ward was facing defendant when he pushed her, the jury was not bound to accept Leslie Ward’s testimony that she was attempting to shield defendant from police and could have reached the opposite conclusion—that Leslie was attempting to calm defendant, who was agitated, yelling[,] and in the face of the police.” The State argues that proof of defendant’s knowledge that the push was insulting or provoking was established by testimony that “he was acting aggressively toward police officers” and “yelled at Leslie Ward to ‘shut up.’ ” The State argues that the jury was not required to credit Leslie’s testimony that she was not offended, insulted, or provoked over the testimony of Stilling, Hann, and Carbray. The State argues that “[t]his court should decline to review the court’s denial of [defendant’s] motion for directed finding de novo.” The State cites no authority for this argument. ¶ 46 “A motion for directed verdict asserts only that as a matter of law the evidence is insufficient to support a finding or verdict of guilty.” People v. Withers, 87 Ill. 2d 224, 230 (1981); 725 ILCS 5/115-4(k) (West 2018). In ruling on a motion for a directed verdict, the trial judge considers “only whether a reasonable mind could fairly conclude the guilt of the accused beyond a reasonable doubt, considering the evidence in a light most favorable to the State.” Connolly, 322 Ill. App. 3d at 914 (citing Withers, 87 Ill. 2d at 230). The fourteenth amendment to the United States Constitution protects a defendant against conviction, “ ‘[e]xcept upon evidence that is sufficient fairly to support a conclusion that every element of the crime has

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been established beyond a reasonable doubt.’ ” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 313-14 (1979)). A motion for a directed verdict provides “an avenue by which a defendant can challenge the constitutional sufficiency of the evidence against him by moving the trial court to review the evidence and to direct a verdict of not guilty if the evidence does not meet the Jackson standard.” Id. at 915. In moving for a directed verdict, the defendant admits the truth of the facts presented by the State, for purposes of the motion. Id. The trial court “does not pass upon the weight of the evidence or the credibility of the witnesses in testing the sufficiency of the evidence to withstand a motion for a directed verdict.” Id. “[A] motion for a directed verdict of not guilty asks whether the State’s evidence could support a verdict of guilty beyond a reasonable doubt, not whether the evidence does in fact support the verdict.” (Emphasis omitted.) Id. In ruling on “a motion for a directed verdict[,] the court can consider only competent evidence.” Hunter v. Troup, 315 Ill. 293, 298 (1924); see Sullivan v. Edward Hospital, 209 Ill. 2d 100, 123 (2004) (no competent evidence on standard of care where the trial court struck testimony of plaintiff’s medical expert; directed verdict for defendant was upheld). The lack of competent, material, legal evidence is grounds for a directed verdict. See 75A Am. Jur. 2d Trial § 794 (2020). 2 “If the plaintiff fails to produce a required element of proof in support of her cause of action, then no cause is presented for the jury’s consideration and the entry of a directed verdict for defendant is proper.” Sullivan, 209 Ill. 2d at 123. “A court is compelled to direct a verdict in favor of defendant at the close of the State’s case if, in viewing all the evidence in favor of the State, the evidence overwhelmingly favored defendant such that the jury could not have concluded otherwise.” People v. Rascher, 223 Ill. App. 3d 847, 854 (1992) (citing Condon v. American Telephone & Telegraph Co., 136 Ill. 2d 95, 100 (1990)). “A mere scintilla of evidence is not enough to require the submission of an issue to the jury.” Dunning v. Cooley, 281 U.S. 90, 93 (1930). The question for the judge is “not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.” Id. Review of a ruling on a motion for a directed verdict presents a question of law, which we review de novo. Connolly, 322 Ill. App. 3d at 917. ¶ 47 Making sure that only relevant and competent evidence is considered by the jury is an important element of a fair trial. Zafiro v. United States, 506 U.S. 534, 540 (1993). Our supreme court has “consistently held that [guilt] must be established by legal and competent evidence, uninfluenced by bias or prejudice raised by irrelevant evidence.” People v. King, 2020 IL 123926, ¶ 43. Trial judges also have an independent duty to correct misstatements of law. “The judge is, after all, the one responsible for instructing the jury on the law, a responsibility that may not be abdicated to counsel.” Brown v. Payon, 544 U.S. 133, 146 (2005). Misstatements of the law on application of essential elements may amount to plain error. People v. Carbajal, 2013 IL App (2d) 111018, ¶¶ 46-47. ¶ 48 We first note that the trial court, in denying the motion for a directed verdict, declined to rule on the legal sufficiency of the evidence. The trial court commented that “the terms [‘]insulting or provoking[’] are common enough for a jury to determine whether or not the testimony as presented is sufficient.” However, the sufficiency of the competent evidence presents an issue of law on which the trial court is obligated to rule. “[T]he trial court is

Competent evidence is evidence that is not barred by some rule of evidence that excludes it. Robert 2 S. Hunter, Trial Handbook for Illinois Lawyers-Criminal § 38.3 (8th ed. 2002).

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obligated to rule on the defendant’s motion for a directed verdict.” Rascher, 223 Ill. App. 3d at 854. A defendant should not have to “guess as to whether the State had proved its case.” Id. During its comments while considering defendant’s renewed argument for a directed verdict, the trial court remarked, “I don’t think it’s such a clear question one way or the other” and “it’s up to the jury to make the determination and it’s a factual determination as to whether a reasonable person would find it to be insulting.” The trial court noted that it was up to the jury to determine whether defendant was “agitated at the police or whether he was agitated at the alleged victim in this case.” The trial court accepted the State’s argument, repeated throughout the prosecution, that under the domestic battery statute the State is required to prove not that the victim was herself insulted or provoked but only that the contact itself was insulting or provoking. During argument on the motion for a directed verdict, the State argued that “[i]t does not state anywhere in the charging documents or the simple reading of the statute that she herself has to be insulted or provoked. It is the nature of the act that is insulting or provoking.” The State argued that the evidence showed that Stilling “was shocked and insulted and provoked by this.” During closing arguments to the jury, the State conceded that Leslie was not insulted or provoked and that she believed that “this whole thing [was] a farce.” According to the State, Leslie “[did not] believe that this was a crime.” ¶ 49 Illinois’s domestic battery statute defines domestic battery based on insulting or provoking physical contact: “(a) A person commits domestic battery if he or she knowingly without legal justification by any means: (b) Makes physical contact of an insulting or provoking nature with any family or household member.” 720 ILCS 5/12-3.2(a)(2) (West 2018). ¶ 50 We disagree with the State’s interpretation of the statute. While it is true that the victim is not required to explicitly testify that he or she felt insulted or provoked, the State is required to prove that the physical contact insulted or provoked the victim, not some third party. The cardinal rule of statutory construction is to give effect to the legislature’s intent by giving language its plain meaning while avoiding absurd results. People v. Hanna, 207 Ill. 2d 486, 498 (2003). Our court has consistently held that “[t]he domestic battery statute’s plain language defines the offense in terms of contact that insults or provokes the victim, and the contact does not need to cause physical injury.” People v. Green, 2011 IL App (2d) 091123, ¶ 23 (citing People v. DeRosario, 397 Ill. App. 3d 332, 334 (2009)). “The difference between simple battery and domestic battery is that the latter is committed against ‘a family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure ***.’ [Citation.]” People v. Wilson, 214 Ill. 2d 394, 397 (2005). Every district in our state has consistently held that, when a defendant is accused of battery or domestic battery (insulting or provoking contact), the State must prove that the defendant’s physical contact was insulting or provoking to the victim, not to some third party. See People v. Craig, 46 Ill. App. 3d 1058, 1060 (1977) (no evidence to show defendant’s “purpose was to provoke or insult the complainant”); DeRosario, 397 Ill. App. 3d at 334 (“plain language defines the offenses in terms of contact that insults or provokes the victim”); People v. Bissaillon, 55 Ill. App. 3d 893, 894 (1977) (“complaint need not allege that defendant’s contact was both insulting and provoking and the cause of bodily harm to the victim”); People v. Wrencher, 2011 IL App (4th) 080619, ¶ 55 (trier of fact can make the inference that the victim was insulted or provoked “from the victim’s reaction at the time”); People v. Latham, 13 Ill. App. 3d 371, 373-74 (1973)

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(indictment alleging defendant committed aggravated battery on a peace officer was defective where it did not allege that “either bodily harm or *** physical contact of an insulting or provoking nature resulted from the physical contact”). ¶ 51 One recent case from the Fourth District disagrees with our interpretation of the element of “insulting or provoking contact” in Illinois’s battery statutes. In People v. Williams, 2020 IL App (4th) 180554, the defendant was found guilty of aggravated battery (great bodily harm), armed violence, and aggravated battery (insulting or provoking/public way) (720 ILCS 5/12- 3.05(c) (West 2018)) following a jury trial. The evidence at trial established that the defendant kicked the unconscious victim in the head. Prior to being kicked, the victim had been struck in the back of the head by another person. He fell to the sidewalk and did not remember much after that. On appeal, the defendant argued that the evidence was insufficient. The defendant argued that “a person cannot make contact of an insulting or provoking nature with an individual who is already unconscious.” Williams, 2020 IL App (4th) 180554, ¶ 49. In rejecting this argument, the majority stated that “[t]he plain language of the statute applies the terms ‘insulting or provoking’ to the types of contact, not to the reaction of the victim. In other words, the jury should determine if the contact was of the sort that would be insulting or provoking.” (Emphasis omitted.) Id. ¶ 50. The majority disagreed with our interpretation of the terms “insulting or provoking” in DeRosario, 397 Ill. App. 3d at 336. The majority stated that “[i]nsofar as the Second District may have endorsed the notion that a victim must in fact be subjectively insulted or provoked, we decline to follow the Second District’s reasoning.” Williams, 2020 IL App (4th) 180554, ¶ 52. Justice Turner specially concurred, stating that “[t]he plain language of the statute requires that the insulting or provoking contact must be made with an individual, and the individual is of course the victim.” Id. ¶ 93 (Turner, J., specially concurring). Justice Turner noted that the majority had noted that “ ‘[a]ny person would know that when defendant kicked [the victim], that was “physical contact of an insulting or provoking nature” at a minimum, and the jury was entitled to come to that conclusion.’ ” Id. ¶ 93 (quoting 2020 IL App (4th) 180554, ¶ 50 (majority opinion)). Justice Turner disagreed with the majority’s criticism of DeRosario. ¶ 52 We disagree with the majority in Williams that it is the “type of contact” that governs whether contact is “insulting or provoking.” If that were the case, we would not look to the context, the relationship of the parties, and the reaction of the victim at the time. As the First District stated in People v. d’Avis, 250 Ill. App. 3d 649, 657 (1993), “[W]hat may be an innocent touching in one instance, may be interpreted quite differently in a different set of circumstances.” Id. at 651. In DeRosario, the physical contact was minor; the defendant’s knee touched the victim’s back and hip while he sat behind her in a smoking lounge. DeRosario, 397 Ill. App. 3d at 332. The “contact occurred in the context of a failed relationship,” and the defendant had “been stalking” the victim. Id. at 334. ¶ 53 “The terms ‘insulting’ and ‘provoking’ are taken from the common law tort of battery, which requires only an offensive contact—the sort of thing that might provoke a breach of the peace.” United States v. Evans, 576 F.3d 766, 767 (7th Cir. 2009). Spitting on a person is a common example of the type of contact that may amount to battery. Id. Spitting on a person is an act of “pure malignity.” Alcorn v. Mitchell, 63 Ill. 553, 554 (1872). The State’s argument that it is not required to prove that defendant’s physical contact caused Leslie to be “insulted” or “provoked” is inconsistent with the plain language of the statute. The committee comments to section 12-3 (battery) note that “[t]raditionally, any unlawful touching of another constituted

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a battery.” 720 ILCS Ann. 5/12-3, Committee Comments-1961, at 250 (Smith-Hurd 1993). The comments explain that the amended statute is intended “to limit the traditional ‘barest touching[,]’ which does not cover bodily harm[,] to one of ‘an insulting or provoking nature.’ ” Id. Just as a defendant cannot be found guilty of battery based on “bodily harm” without some form of physical pain or damage to the body of the victim, a defendant cannot be found guilty of battery based on “physical contact of an insulting or provoking nature with an individual” without some form of proof that the victim was insulted or provoked. The Illinois Supreme Court decision in People v. Hale, 77 Ill. 2d 114 (1979), illustrates this point. In Hale, the defendant was charged with knowingly making contact of an “insulting or provoking nature” with a police officer engaged in the execution of his official duties. Id. at 115. The defendant’s motion to dismiss for failure to state the offense of aggravated battery was granted “in order that the State might seek review of the ruling on the aggravated battery charge.” Id. The appellate court held that “the information was insufficient to charge aggravated battery because it did not allege that the police officer suffered bodily harm.” Id. Our supreme court reversed the appellate court, explaining that the Criminal Code of 1961 identifies two alternative types of misconduct that can be defined as battery: “ ‘A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.’ [Citation.]” Id. ¶ 54 The supreme court noted that the Criminal Code provides in section 12-4 that the act of battery will constitute aggravated battery, a Class 3 felony, in certain enumerated situations, including the following: “(b) A person who, in committing a battery either: *** (6) Knows the individual harmed to be a peace officer *** so engaged in the execution of any of his official duties including arrest or attempted arrest.” (Internal quotation marks omitted.) Id. at 116. The court explained that the issue before it was whether, “under section 12-4(b)(6), insulting or provoking physical contact knowingly inflicted upon a police officer engaged in the execution of his duties constituted aggravated battery or whether only battery resulting in bodily harm to the officer comes within [the] statute.” Id. at 117. The court noted that the appellate court districts were “not in harmony.” Id. Citing People v. Meints, 41 Ill. App. 3d 215 (1976), the court concluded that the words “battered” and “harmed” in the aggravated battery statute do not refer to the technical “meanings of ‘battery’ and ‘harm’ in the battery statute.” Hale, 77 Ill. 2d at 118. The court stated that “all three words [‘assaulted,’ ‘battered,’ and ‘harmed’ 3] were used synonymously, and, consequently, either of the alternative acts of battery will satisfy section 12-4(b)(6).” Id. The court noted that its conclusion was reinforced “by its compatibility with the apparent legislative purpose to afford additional protection to those in positions of authority.” Id. “Since a battery is committed upon ordinary persons by either causing bodily harm or by insulting or provoking physical contact, consistency would seem to require that both forms of misconduct would constitute aggravated battery when committed upon those in authority.” (Emphases added.) Id. at 118-19.