Articles Posted in Aggravated Assault

benjamin-voros-160962-300x200One of the current and most insidious forms of harassment is cyber bullying. It is now recognized as a serious crime in Chicago and prosecutors are highly motivated to go for those that continue doing it under the auspices of instrument number 720 Ill. Comp. Stat. § 5/12-7.5. The problem with such cases is the degree of difficulty in actually proving that everything happened as the victim described. Institutions such as schools have come up with bespoke policies that are designed to manage the risks. Some local ordinances demand such measures as a prerequisite to being licensed.

Some defense attorneys have expressed concern that the zeal to prosecute may lead to a violation of the defendant’s civil liberties. What was once accepted as normal conflict between and amongst teenagers is now a crime that can land someone in jail. Others point out that the resultant criminal record is an overly excessive punishment for the crime. On the other hand, it is noted that cyber bullying can lead to serious consequences for the victim including self-harm and even suicide on some occasions.

Key Ingredients of the Crime

Hilulaohaio-225x300Chicago has sought to deal with the increasing problem of hate crime using legislative means. The provisions of the Illinois Hate Crime Act (IHCA), 720 ILCS 5/12-7.1, are the leading authority on the management of the criminal process. The act creates an imperative on the state to prosecute but does not explicitly remove the opportunity for private civil cases to take place. Many victims take the opportunity to sue for damages, even when the aggressor is a public authority or their representatives. The range of options for the court includes actual damages, punitive damages, and additional costs, including attorney fees. At other times, the court may offer injunctive relief in order to stop the offending behavior from happening.

The criteria for what constitutes a hate crime can be fluid and those who offend have often used the ambiguity of definitions in order to attempt a get-out-clause for their behavior. Typically, they will claim that this is a case of freedom of speech, which is constitutionally guaranteed. For those who actually go on to commit acts of violence, the case is much simpler since the prosecutor can go for the assault line of questioning and later prove that hate-inspired motives were at play. A crime becomes a hate crime when it is motivated by perceived creed, race, color, gender, ancestry, religion, sexual orientation, disability, nationality and even membership of a particular group. Bigotry is at the heart of this crime and will be part of the Mens Rea during the prosecution.

The Importance of the Motivating Factors

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You have likely heard of the Sex Offender Registry, but have you ever heard of the Murderer and Violent Offender Against Youth Registry? Likely not, as this type of registry is not as widely publicized and only exists in Illinois and four other states – Oklahoma, Montana, Kansas, and Indiana. The Illinois State Police Murderer and Violent Offender Against Youth Registry is a list that provides the public with the names, addresses, and recent photos of certain convicts who live in the state. If you are facing a serious criminal charge or have already been convicted of a crime in Illinois be sure to consult with a local criminal defense attorney about the Murderer and Violent Offender Against Youth Registration Act in order to discuss the registry and determine if it has the potential to impact your life.

Who is Required to Register?

The Murderer and Violent Offender Against Youth Registration Act is contained in code section 730 ILCS 154/1 and details the parameters of the registry. Under the Act, any conviction or adjudication of any of the following statutes requires registration if the victim is less than 18 years old:

A substitute teacher with the Chicago Public Schools was recently arrested and charged with indecent solicitation of a child and intent to commit predatory aggravated sexual assault. The arrest was made after police and the school discovered suggestive texts allegedly sent from the defendant to the former student, a 14-year-old.

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Chicago Indecent Solicitation of a Child

Indecent solicitation of a child is committed when an individual age 17 or older knowingly solicits a child to engage in sexual penetration or sexual conduct, with the intent to commit the act, or knowingly discusses sexual conduct or penetration with the intent that the act be committed.

The police in this case have texts allegedly sent by the defendant to the victim requesting a date and asking her to have sex with him. Assuming that police statements regarding the nature of the texts is correct, a defense against this charge would require proving that either the defendant did not send the texts, or that he did not know he was sending them to a minor.

The news is full of stories about teens send elicit text messages to each other, often as a way to harass or bully other students and even adults. Teens also have a history of playing pranks on teachers or trying to get them in trouble for retaliation against a poor grade or some other perceived slight.

Children today grew up with technology and are avid users of all forms of social media, including texting. Thus many of them are adept at hacking into other’s phones, intercepting IP addresses, or even making it look like a text came from a person it did not.

In any case where technology, particularly computers or smartphones, played an essential part in the alleged crime, it is vital to have a forensic expert examine the phone that allegedly sent the texts, the phone that received the texts, and all data associated with the messages to determine if the messages were actually sent by the owner of the phone. This can be traced via IP addresses, date, time and location the messages were sent, even whether the phone was re-routed through a different address. Evidence obtained in a forensic search could show that the messages were sent at a time when the phone was not in the defendant’s possession, from a location he never frequented, or from a different address altogether.

If it can be proven that the defendant did in fact send the texts, then it would be necessary to prove that he knew he was sending them to a minor. Presumably, since he had taught in the girl’s school, he was aware that she was underage. But it is possible that he believed he was sending them to a different person – perhaps he transposed a number, or the student shares a name with an adult in his phone contact list and he didn’t pay close enough attention to the recipient when he inputted the number (it is not uncommon for students and teachers to interact via social media or e-mail, so the idea of him having a student’s cell phone number is not that far off). The student may have mistakenly believed he was soliciting her, or may have realized his error but thought it was funny to play along. Regardless, if it cannot be proven that the defendant knew he was interacting with a minor, then he must be acquitted or the charges dropped.

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A Chicago man was arrested last week after shooting his ex-girlfriend in the thigh; he also shot the girlfriend’s mother, who is a Chicago police officer, numerous times, and kidnapped his son. Charges are pending, but it is likely the man faces at minimum charges of attempted murder, aggravated assault with a weapon and kidnapping. When arrested, the defendant allegedly admitted to the shootings, asking police, “Did I kill her?” and saying, “I didn’t want this to happen, I didn’t want it to go this far.”

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Defense when Defendant Admits to Crime

In all criminal defense cases, the defense attorney’s goal is to get the best possible result for his client. The ultimate goal is an outright acquittal, where the defendant is found not guilty and walks out of the courthouse a free man. Yet in some cases, all the available evidence points to the defendant’s guilt, so an acquittal is not a viable defense strategy. This does not mean, however, that the defendant has no options – and it is these cases where an experienced criminal defense attorney can make all the difference.

We will assume, for this discussion, that the defendant’s statements to the police upon his arrest were in fact made, and that they are a true admission of his guilt. That confession, coupled with both shooting victims likely being able to identify him as the shooter, the defendant and girlfriend’s son being found in his custody, and the gun and spent casings being found in his car – assume again they are a match for the weapon used – all point to his guilt, and would make it difficult to argue a case of mistaken identity, accidental misfiring or self-defense.

The goal of the criminal defense attorney in this case, then, would be to work to get all or some of the charges reduced or dropped. The kidnapping charge has the potential to be reduced to child endangerment or dropped entirely. Technically the defendant’s actions meet the definition of aggravated kidnapping – he transported his son (because he did not have visitation with his son at the time, he is considered to have kidnapped him) while armed with a firearm and while discharging a firearm that caused great bodily harm to another person.

However, a case could be made that at the moment of the kidnapping, the defendant was actually acting in the child’s best interest. The child’s mother and grandmother had just been shot – leaving him alone and frightened in the middle of a crime scene was potentially more dangerous than the defendant removing him from the scene. The fact that the boy was soon found unharmed at the home of another family member adds additional support to reducing or dropping that charge.

The defendant is also allegedly a Gangster Disciple, a notorious Chicago-area gang. The prosecution may be willing to enter into a plea agreement for a reduced sentence in the defendant were willing to testify against any other current gang members. The defendant may also qualify as a participant in Chicago’s Gang Intervention Probation or Gang Violence Reduction Strategy programs.

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A 92-year-old woman was acquitted of aggravated assault against an off-duty Chicago police officer, but still faces two counts of misdemeanor battery in an incident that left her 86-year-old husband dead. The woman and the police officer’s wife were also shot.

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The two couples were neighbors who had a longstanding dispute over what relatives and neighbors of the two couples described as petty differences – snow being dumped on each other’s sidewalks and littering on the lawns. On the day in question, the officer allegedly heard his wife and the defendant arguing, and came out to see the defendant throwing dirt over the fence at his wife and hitting her with a broom.

At some point, the defendant’s husband went back inside the home and returned with a gun, firing at the officer’s wife and hitting her in the chest and arm. It was then that the police officer returned fire, killing the husband and hitting the defendant in the arm.

Aggravated Assault of Chicago Police Officer

As I have discussed previously on this blog, an assault is committed if the defendant “knowingly places another person in reasonable apprehension of receiving a battery”. However, assault against a police officer is automatically aggravated assault. In this case, the officer and his wife claimed that the defendant committed aggravated assault because she allegedly reached for her husband’s gun after he had been shot.

A judge acquitted the defendant of aggravated assault, ruling that the prosecutor hadn’t provided enough evidence to support the charge. This was the right call based both on circumstances and the law.

First, circumstances. While the officer and his wife allege that the defendant reached for her husband’s gun after he’d been shot, the chaos that no doubt surrounded the shooting would have made their recollection of the incident suspect. While it is possible the defendant did reach for her husband’s gun – whether to retaliate or to protect herself from further gunshots – the more logical scenario is that she was reaching toward her husband to help him. And since he’d been holding the gun when he was shot, it was likely either in his hands or close to his body, which could have caused the officer and his wife to misconstrue her action. Because of these conflicting scenarios, it casts reasonable doubt on the defendant’s motives, thus necessitating her acquittal.

Now the law. Aggravated assault of a police officer occurs if the assault took place:

  • While the officer was performing official duties;
  • To prevent performance of official duties; or
  • In retaliation for performing official duties

In this case, the officer was not performing his official duties – he was off-duty. So even if the defendant had been reaching for her husband’s gun, the most she could have been charged with was simple assault, as the officer was not acting in any official capacity.

Chicago Battery Charge

The defendant was charged with battery for allegedly throwing dirt at her neighbor and hitting her with a broom. This may seem laughable – potential jail time for throwing dirt on somebody? A battery charge for hitting her neighbor with a broom? How hard could a 92-year-old woman actually hit somebody? Unfortunately for the defendant, the law makes no distinction for the extent of the injury. The slightest touch qualifies as a battery, even if it does not cause any physical damage.

But the prosecution must prove that the defendant did in fact strike the neighbor. If the dirt was thrown in the wife’s direction, but never hit her, or if the defendant simply waved the broom in the air, again not hitting her, the battery charge would have to be dismissed. Or if the wife committed a battery against the defendant first, there could be a claim of self-defense. Or the police officer and his wife could be exaggerating, or even fabricating, the battery claims, in an attempt to make themselves appear less blameworthy. These avenues would all have to be explored pre-trial in an attempt to get the charges reduced or dismissed entirely.  Continue reading

A Chicago man was charged with aggravated battery, aggravated discharge of a firearm and aggravated discharge of a firearm near a school in late May following a shooting of a man near a Lawndale elementary school.

Chicago Aggravated Discharge of Firearm

You can find an in-depth discussion on the differences between battery and aggravated battery on my website, and last week I discussed one aspect of aggravated discharge of a firearm on the blog, as it pertains to firing at a vehicle. Discharge of a firearm is also automatically upgraded to ‘aggravated’ if the discharge occurs within 1,000 feet of school property or any school activity, regardless of whether school is actually in session.

As odd as it seems, in this case if the shooting had occurred 1,001 feet from the school, the defendant would have been charged simply with aggravated battery and discharge of a firearm. But because the shooting occurred closer to the school, he was slapped with the additional charge of aggravated discharge of a firearm, all because of the location.

Aggravated discharge of a firearm near a school is a Class X felony, punishable by no less than 10 and no more than 45 years in prison.

Defense Against Aggravated Discharge of a Firearm near School

As in any criminal defense, the first step is to determine whether the evidence supports a conclusion that the defendant was in fact the shooter. Eyewitness testimony is often unreliable. If that is the only evidence tying the defendant to the scene of the crime, it can often be successfully disputed in court, particularly if other evidence tends to disprove the prosecution’s contention that the defendant committed the crime.

If the charges were based in whole or in part on forensic evidence, it is important that a team of forensic experts examine the evidence in order to determine whether the prosecution’s experts came to the right conclusion. For example, if an arrest was made based on forensic evidence linking the gun to the defendant, we would want to examine:

  • Whether the defendant’s fingerprints were found on the weapon;
  • Whether any other fingerprints were found on the weapon, and;
  • Whether gunpowder residue matching the weapon was found on the defendant.

Lack of fingerprints or gunpowder residue linking the defendant to the weapon, or the presence of another set of fingerprints on the weapon, would help plant doubt on the prosecution’s assertion that the defendant was in fact the shooter.

Aggravated discharge of a firearm requires that the defendant intentionally fired his weapon. Our team of forensic experts would also examine whether there is any possibility that the gun could have been discharged due to a malfunction. If this were the case, it would negate the intentional requirement and result in a dismissal of the charge.

Aggravated discharge of a firearm in Illinois also requires that the defendant knowingly discharged the firearm near the school. If it can be shown that the defendant did not know that he was in a school zone when the shooting occurred – for example, if there were no signs at the location of the discharge indicating that he was in a school zone – then it may be possible to have the charges dismissed. Continue reading

A Chicago man was charged in mid-May with felony aggravated assault, among other charges, for threatening to kill a police officer with an ice pick. Unfortunately for him, in Illinois assault of a police officer is immediately classified as an aggravated offense and carries stiffer penalties than if the crimes were committed against an ordinary citizen.

Illinois Assault Charges

Police in Riverside received a call about a “suspicious” man who was banging on the front door of a residence and repeatedly ringing the doorbell. An officer responded and approached the man, asking why he was banging on the door. According to police reports, he told police he would not show them his identification (although it is unclear if the officer had even requested it), and then allegedly reached into his pocket, pulled out an ice pick and threatened to kill the officer. The man fled the scene when the officer pulled his gun and ordered him to drop the ice pick. He struggled when police caught up with him, but was quickly subdued.

In Illinois a person commits assault if he knowingly “places another person in reasonable apprehension of receiving a battery” – or in everyday language, if the alleged victim had a reasonable fear that the defendant was about to cause him physical harm. Simple assault is a Class C misdemeanor punishable by less than 30 days in jail and a maximum fine of $1,500, or between 30 and 120 hours of community service if no jail time is imposed.

But the victim in this case was a police officer, and on January 1, 2011, the law­ was changed to impose stiffer penalties in Illinois assault and battery cases where a police officer is the victim.

Assault of Illinois Police Officer

In 2010 the Illinois legislature passed a law that imposed harsher penalties on individuals who committed assault or battery against an on-duty officer. When the law went into effect on January 1, 2011, simple assault was immediately upgraded to aggravated assault if the victim was a police officer. The assault did not have to be any more menacing for the charge to move up to aggravated – it just had to be committed against an officer of the law. With the upgraded charge came increased penalties: a Class 4 felony and up to three years imprisonment and/or a $25,000 fine.

But while the charge was reclassified and the penalties increased, mounting a defense against a charge of aggravated assault of a police officer is not much different than defending against a charge of simple assault against an ordinary citizen. Aggravated assault against a police officer occurs if the officer was assaulted:

  • While performing official duties;
  • To prevent performance of official duties; or
  • In retaliation for performing official duties.

Defenses against this charge could include whether the defendant was aware that the assaulted person was a police officer; for example, if the officer was dressed in plain clothes, if he didn’t identify himself on approach, or if he was in an unmarked police cruiser. If it was impossible for the defendant to have known the victim was a police officer, it may be possible to have the charge reduced to simple assault.

Whether the charge is reduced to simple assault or remains at aggravated, defense against the assault portion would be the same whether against a police officer or an ordinary citizen. The basis of an assault charge is whether the alleged victim could have reasonably feared being physically injured.

Whatever the circumstances and whomever the alleged victim, an attorney will scrutinize all of the evidence and witness testimony to get the aggravated assault charges against you reduced or dismissed entirely. Continue reading

A new bill introduced in the Illinois legislature would extend the statute of limitations in some rape cases. Senate Bill 2609 seeks to change when the statute of limitations in rape cases begins to run. Current law provides that the statute of limitations in rape cases begins to run on the date the alleged rape occurred, if the alleged victim reported it to police within three years. If you are being investigated for, or have been charged with, committing rape, contact an experienced sexual assault attorney immediately.  depressed-girl-1030147-m

Proposed Changes to Illinois Sexual Assault Statute of Limitations

If the new law is enacted, the statute of limitations would begin to run on the date the police processed DNA evidence from the rape kit. The new law is in response to a case in which the alleged victim submitted to a DNA rape kit. By the time the police processed it, the 10-year statute of limitations had expired, and the prosecution was unable to file charges against the alleged rapist. The bill’s sponsor argues that victims should not be denied justice due to police mistakes, whether caused by a lack of competency or a backlog of cases.

Effect of Statute of Limitations Extension in Illinois Rape Cases

If SB 2609 passes, it will likely have little effect on the prosecution of rape cases. The case that spurred on the new law is no doubt a one-time case of severe police ineptitude not likely to be repeated, even if the police do have a backlog of rape kits to process. Even though opponents of the law say it does not give the police incentive to process DNA rape kits, since they know charges can be filed no matter how much time has passed between the date the alleged rape occurred and the date they final process the kit, the embarrassment over this case should keep them honest.

Passage of SB 2609 will have no effect on how the Chicago Law Offices of David L. Freidberg, P.C., will defend against sex crimes cases. Rape kits and DNA evidence are not the bombshell evidence the prosecution and media would have you believe. The rape kit only confirms whether the alleged victim and alleged rapist had sexual intercourse. If the DNA results from the rape kit show that the alleged rapist did not have sex with the alleged victim, then the charges will be dropped. And if the DNA results show that the two did have sex? Well, that’s all it shows.

Evidence of sexual intercourse is just that – proof that two people had sex. It is not evidence that a rape occurred. If the sex was consensual and no protection was used, of course the rape kit would find the alleged rapist’s DNA on the alleged victim. If it shows scratches, abrasions or other marks on or inside the victim, that still is not evidence that a sexual assault occurred.

David L. Freidberg has an arsenal of forensic experts who can examine the results of a DNA rape kit to determine whether there’s any possibility that the sample was improperly tested or not large enough for an accurate result. They can also testify to any number of harmless, non-assault reasons why marks or abrasions on the victim could have occurred, either during consensual sex or during the victim’s normal daily activities. Continue reading

Did you know that chasing a person in your car can get you arrested for aggravated assault in Illinois? Two Chicago-area residents recently learned this the hard way when they were arrested and charged with felony aggravated assault.

A Wilmette man was charged for allegedly trying to run over a man who chased after his vehicle. And a Hazel Crest woman was charged in downtown Chicago after an alleged attempt to slam her car into a bicycle police officer. A conviction on felony aggravated assault charges carries prison time and hefty fines, so it is important that you contact an experienced Chicago aggravated assault attorney to help build your defense.

In Illinois a person commits simple assault when he puts another person in fear of receicar-chase-937355-mving a battery. No actual harm or physical contact is required – it is enough that the other person was afraid of being harmed or touched.

Like simple assault, aggravated assault does not require physical contact between you and the alleged victim. The “aggravated” element can come in to play if a weapon was used during the assault. In Illinois, the definition of weapon includes a vehicle, if it was used in a manner that threatened to harm another person – and attempting to run somebody over is enough for the police to make an arrest, as the two individuals in the news stories above learned.

The penalties for a conviction are steep and include minimum prison terms. Felony aggravated assault with a vehicle is a Class 4 felony punishable by one to three years in prison. If the assault is against a police officer, it is a Class 3 felony, and is punishable by three to five years in prison. Both also carry the possibility of up to a $25,000 fine.

Defending Against Aggravated Assault with a Vehicle

In a case involving assault charges, the first step would be to determine whether an assault actually occurred. If the alleged victim’s fear of injury was not reasonable, then no assault occurred, and the charges might be dismissed. If the assault did occur, then the defense attorney must determine whether the aggravating factors were actually present. If they weren’t, then the charges could be reduced to simple assault.

In the case of the Wilmette man, who allegedly tried to back over the other person, an experienced criminal defense attorney would look at whether the driver could actually see the other person in his rear view mirror. If the driver did not know the man was back there, then he cannot be considered to have “used” a vehicle to threaten harm. Likewise, if there was a mechanical failure with the car that the driver was unaware of, such as faulty brakes, the driver could not be considered to have “used” the car to threaten harm, since he had no control over it backing up.  There is an intent component with regard to assault charges.

In the case of the Hazel Crest woman, the criminal defense attorney would need to determine whether she knew the officer was a peace officer. If he was a plainclothes officer who had not identified himself as the police, the charges might be dropped to a Class 4 felony. And when the driver turned and allegedly tried to run him over, did she actually know he was there, or was he in a blind spot or appear from nowhere? A person on a bicycle has more maneuverability on a city street than a car, so there is an argument to be made that the bicyclist could have quickly positioned himself in a spot where he wasn’t easily visible to the driver. Continue reading