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Fifth Division

May 3, 2002

No. 1-01-0048

JUSTICE GREIMAN delivered the opinion of the court:

At the conclusion of a bench trial, the defendant, Sultan Taher, was convicted of domesticbattery pursuant to section 12-3.2(a)(2) of the Criminal Code of 1961 (Criminal Code) (720 ILCS5/12-3.2(a)(2)(West 2000). Defendant was sentenced to 18 months of conditional discharge and180 days imprisonment, subject to remittur. Additionally, defendant was fined $800 and thecourt extended a previously entered order of protection prohibiting defendant from havingcontact with his two children during the 18-month period of conditional discharge.

The issues presently before the court are as follows: (1) whether the statute under whichdefendant was convicted is unconstitutionally vague; (2) whether the statute under whichdefendant was convicted is unconstitutionally broad; (3) whether defendant was proven guiltybeyond a reasonable doubt; and (4) whether the court erred when it entered and continued theorder of protection prohibiting defendant from having any contact with his children.

On July 31, 2000, Sabah Taher filed a misdemeanor complaint for domestic batteryagainst her husband, the defendant, Sultan Taher. The complaint alleged that defendant violatedsection 12-3.2(a)(2) of the Criminal Code when he knowingly, without legal justification, madephysical contact of an insulting or provoking nature with his wife. 720 ILCS 5/12-3.2(a)(2)(West2000).

At trial, Sabah testified that early in the day on July 31, 2000, she had an argument withdefendant, during which defendant hit her. Sabah stated that defendant left the house shortlyafter the argument and that she did not call the police because she was afraid.

Sabah testified that around 5:30 p.m. she was at home with her two young children, whowere both asleep. According to Sabah's testimony, she had a headache and decided to lie downin her bedroom. When defendant returned to the house, Sabah stated that he entered theirbedroom screaming at her to get him a cup of Pepsi. Sabah testified that she told defendant shehad a headache and asked if he could get the Pepsi himself. Sabah stated that defendant thengrabbed both of her arms, turned her around, and threw her onto the floor. Sabah testified thatshe was in great pain when her back hit the floor. Defendant then forced his foot into Sabah'smouth and told her to kiss his foot and get him the Pepsi. Sabah testified that defendant's footremained in her mouth for a few seconds and that he turned his foot while it was in her mouth. After removing his foot from her mouth, Sabah testified that she remained on the floor forapproximately two minutes while defendant called her various degrading names in both Englishand Arabic.

Sabah testified that when she rose from the floor she tried to call her family, but she couldnot because defendant had unplugged the phones from the wall and locked them in his briefcase. Further, Sabah stated that she could not leave the house because all of the doors in her houserequire a key to get either in or out and defendant had locked the house keys in his briefcase. Later in the evening, defendant plugged in the phones and Sabah called her family who, in turn,called the police. Lastly, Sabah testified that she did not go to the emergency room.

Defendant testified that when he came home his family was sleeping. Defendant thenstated that he attempted to wake his wife so that she could eat the dinner that he brought home. According to defendant, he stood at the left side of the bed, called his wife's name, and tickledher stomach in an attempt to wake her. Defendant stated that apparently Sabah was still angryfrom the earlier fight and showed her anger by swinging her right arm across her body, scratchingdefendant, and then falling out of bed. Defendant testified that Sabah fell about 18 inches fromthe bed to the ground and that he asked her if she was hurt. In response, defendant stated that hiswife called him derogatory names and said "f- - - off" at least 10 times. Defendant stated that hedid not want the fight to progress further so he left his wife on the ground and walked into theliving room.

Defendant denied unplugging the phones and taking the house keys and also stated thatSabah could have left the house at any time. In fact, defendant testified that Sabah began callinghim names while she packed her clothes and announced that she was finally going to leave him,however, she remained at home. A few hours after the fight, defendant stated that he recalledSabah talking on the phone with her mother for about 45 minutes, then, unexpectedly, the policeknocked on the front door.

According to the testimony of Officer Peter Hennessy, who testified on behalf of thedefendant, he arrived at defendant's house at approximately 9 p.m. Hennessy stated that when hearrived at the house there was no physical evidence to indicate that there had been a disturbance. Hennessy further testified that he remembered interviewing Sabah and her stating that defendantthrew her out of bed and forced his foot into her mouth; however, he noticed no sign of physicalinjury.

After closing arguments, the trial court found defendant guilty of domestic battery. Defendant then filed a motion to reconsider, which was subsequently denied by the trial court.

At the aggravation stage of the sentencing hearing, the prosecution stated that if Sabahtestified she would state that defendant had been abusing her for four years and that previouslyshe never had the courage to call the police. Further, the State informed the trial court that, inviolation of the order of protection, defendant's relatives contacted Sabah.

In mitigation, the defense stated that this case involves touching in an insulting manner,rather than bodily harm. Further, defense counsel informed the trial court that defendant does nothave any prior convictions. Defense counsel stated that for the past four years defendant hasbeen employed as a respiratory therapist and is currently working at two local hospitals. Defendant pays Sabah $950 per month in support.

At the conclusion of the sentencing hearing, the trial court placed defendant onconditional discharge through May 29, 2002. Defendant was also sentenced to 180 daysincarceration, subject to remittur, and was fined $800. The trial court required defendant toattend counseling sessions for domestic violence. Lastly, the order of protection was ordered toremain in full force and effect through May 29, 2002. Defendant appeals.

Whether a statute is constitutional is a matter of law, and, therefore, the standard ofreview is de novo. People v. Fisher, 184 Ill. 2d 441, 448 (1998). "Statutes carry a strongpresumption of constitutionality, and the party challenging the constitutionality of a statute bearsthe burden of rebutting this presumption." People v. Maness, 191 Ill. 2d 478, 484 (2000), citingRussell v. Department of Natural Resources, 183 Ill. 2d 434, 441 (1998). Section 12-3.2(a) ofthe Criminal Code defines the offense of domestic battery as follows:

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