author: HENSAL, Judge.

text:
    STATE of Ohio, Appellee v. David A. DUFFIELD, Appellant
    No. 28615
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: March 30, 2018
    ANDREA L. WHITAKER and WILLIAM T. WHITAKER, Attorneys at Law, for Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
    DECISION AND JOURNAL ENTRY
   HENSAL, Judge.

{¶ 1} David A. Duffield appeals a judgment of the Summit County Court of Common Pleas that convicted and sentenced him for felonious assault, grand theft, and obstructing official business. For the following reasons, this Court affirms.

I.

{¶ 2} According to Detective Ronald Kennedy, he and his partner responded to a request for backup from officers who were in a foot chase with Mr. Duffield. Detective Kennedy and his partner drove to the area and parked their cruiser, but later moved it to a dead end street after an officer spotted Mr. Duffield on that street. After more searching, Detective Kennedy was returning to his cruiser from the yard of a residence that was down the street from the back of the cruiser when he saw Mr. Duffield near the front of the cruiser.

He pointed his firearm at Mr. Duffield, ordered him to get on the ground, and began moving toward him. Mr. Duffield, instead, ran to the passenger side door and attempted to enter the cruiser. Finding the door locked, he ran around to the driver side door. By then Detective Kennedy had reached the sidewalk, so when Mr. Duffield ran to the driver side the detective decided to cut across the road behind the rear of the cruiser.

{¶ 3} When Mr. Duffield reached the driver side door, he opened it and got in the cruiser. According to Detective Kennedy, before getting in, Mr. Duffield looked at him and made eye contact. The detective said that, at the time, he was ten feet behind the cruiser, still cutting across the road behind the rear of it. Detective Kennedy testified that the next thing he knew, the cruiser's lights came on and it began backing up toward him, so he shot at Mr. Duffield, trying to get him to stop. The detective was able to move out of the way of the cruiser, but he continued shooting at Mr. Duffield as it moved alongside him because he did not want to end up directly in front of it. One of the bullets hit Mr. Duffield in the back, causing the cruiser to go over the opposite curb and come to rest on top of a fire hydrant.

{¶ 4} The Grand Jury indicted Mr. Duffield for felonious assault, grand theft, and obstruction of official business. A jury found him guilty of the offenses. The trial court merged them for sentencing purposes and sentenced Mr. Duffield to four years imprisonment. Mr. Duffield has appealed, assigning three errors. We will consider the first two together because Mr. Duffield has argued them that way in his appellate brief.

II.

ASSIGNMENT OF ERROR I

THE EVIDENCE PRESENTED WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR FELONIOUS ASSAULT.

ASSIGNMENT OF ERROR II

MR. DUFFIELD'S CONVICTION FOR FELONIOUS ASSAULT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 5} Mr. Duffield argues that his felonious assault conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. Whether a conviction is supported by sufficient evidence is a question of law, which we review de novo. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In making this determination, we must view the evidence in the light most favorable to the prosecution:

An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 6} If a defendant asserts that a conviction is against the manifest weight of the evidence,

an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten , 33 Ohio App.3d 339, 340, 515 N.E.2d 1009 (9th Dist.1986). Weight of the evidence pertains to the greater amount of credible evidence produced in a trial to support one side over the other side. Thompkins at 387, 678 N.E.2d 541. An appellate court should only exercise its power to reverse a judgment as against the manifest weight of the evidence in exceptional cases. State v. Carson , 2013-Ohio-5785, 6 N.E.3d 649, ¶ 32, citing Otten at 340, 515 N.E.2d 1009.

{¶ 7} Revised Code Section 2903.11(A)(2) provides that "[n]o person shall knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a deadly weapon * * *." Mr. Duffield argues that there was insufficient evidence to convict him under that section because, although the evidence may have been sufficient to establish that he acted recklessly when he drove the cruiser toward Detective Kennedy, there was no evidence that he acted knowingly. "A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist." R.C. 2901.22(B). Recognizing that establishing someone's mental state is "often difficult to prove directly," the Ohio Supreme Court has held that it can "be inferred from the surrounding circumstances." State v. Logan , 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979).

{¶ 8} Mr. Duffield argues that the testimony at trial demonstrates that his only goal during the chase was to escape, not to cause harm to anyone. He also argues that Detective Kennedy was in constant motion after spotting him, making it impossible for him to know where the detective was as he drove the cruiser in reverse.

{¶ 9} Detective Kennedy testified that, after Mr. Duffield opened the driver side door of the cruiser, "[h]e actually stops there, looks right back at me and jumps in the door, and then next thing I know the car is in reverse." On further questioning, the detective confirmed that Mr. Duffield made eye contact with him while he was about 10 feet behind the bumper of the cruiser.

{¶ 10} To convict Mr. Duffield of felonious assault, the State had to prove that Mr. Duffield acted knowingly, not purposefully. From Detective Kennedy's testimony it can be inferred that Mr. Duffield knew that the detective was a short distance behind the police cruiser at the time he began driving it backwards. Viewing the evidence in a light most favorable to the prosecution, we conclude that there was sufficient evidence for the jury to find that Mr. Duffield knowingly attempted to cause physical harm to Detective Kennedy by means of a deadly weapon. See R.C. 2903.11(D)(3) (acknowledging that a motor vehicle qualifies as a deadly weapon). Mr. Duffield's first assignment of error is overruled.

{¶ 11} Regarding the manifest weight of the evidence, a resident of the area testified that he saw the incident from the dead end of the street. He testified that the front of the cruiser was pointed toward him. Just before Mr. Duffield got in the cruiser, Mr. Duffield looked at him for a second and then in the direction from which Detective Kennedy was approaching. He testified that, immediately after Mr. Duffield got into the cruiser, he heard the engine rev and the tires spin as if Mr. Duffield had stomped on the accelerator. He also confirmed that Detective Kennedy was directly behind the cruiser at the time it began moving, although he estimated that the detective was only one to four feet behind the cruiser instead of ten. He opined that, if the detective had not kept moving, he would have been run over.

{¶ 12} Mr. Duffield argues that, because the State failed to present any evidence that he acted knowingly, his conviction for felonious assault is also against the manifest weight of the evidence. We disagree. Not only could Mr. Duffield's state of mind be inferred from the circumstances, the area-resident's testimony corroborated Detective Kennedy's testimony that Mr. Duffield was aware that the detective was close to the back of the cruiser when he entered it and that Mr. Duffield began driving the cruiser in reverse almost immediately after entering it. Accordingly, upon review of the record, we conclude that Mr. Duffield's felonious assault conviction is not against the manifest weight of the evidence. Mr. Duffield's second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN DENYING MR. DUFFIELD'S REQUEST FOR A LESSER OFFENSE JURY INSTRUCTION.

{¶ 13} Mr. Duffield also argues that the trial court incorrectly denied his request for a jury instruction on attempted reckless assault. The court denied the request because it reasoned that it is impossible to attempt to cause a reckless act. "This Court reviews a trial court's decision to give or decline to give a particular jury instruction for an abuse of discretion under the facts and circumstances of the case." State v. Sanders , 9th Dist. Summit No. 24654, 2009-Ohio-5537, 2009 WL 3366307, ¶ 45.

{¶ 14} "An offense is an 'inferior degree' of the indicted offense where its elements are identical to or contained within the indicted offense, except for one or more additional mitigating elements." State v. Deem , 40 Ohio St.3d 205, 533 N.E.2d 294 (1988), paragraph two of the syllabus. Section 2903.13(B) provides that "[n]o person shall recklessly cause serious physical harm to another * * *." Because Mr. Duffield did not cause any harm to Detective Kennedy, this section is inapplicable to the facts. Mr. Duffield argues that he could have been convicted of attempting to violate the section, however, which, he asserts, would be an inferior degree of that offense and the felonious assault offense for which he was indicted.

{¶ 15} The attempt statute provides that "[n]o person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense." R.C. 2923.02(A). According to Mr. Duffield, the commentary to the bill that created Section 2923.02 indicated that, with three exceptions, an attempt to commit an offense is "an offense in itself." 1974 Committee Comment to H 511. Those exceptions are (1) "an attempt to commit conspiracy," (2) "an attempt to commit a minor misdemeanor," and (3) "an attempt to commit any offense which in itself is defined as an attempt[.]" Id.

{¶ 16} Upon review of the statutes and commentary, we conclude that Mr. Duffield was not entitled to a jury instruction on attempt to commit assault under Section 2903.13 because the third "attempt" exception applies. "One obvious requisite of [ Section 2923.02(A) ] is that a person cannot commit an attempt offense unless he or she has acted purposely or knowingly." State v. Nolan , 141 Ohio St.3d 454, 2014-Ohio-4800, 25 N.E.3d 1016, ¶ 7. Once someone purposefully or knowingly attempts to commit an assault, however, Section 2903.13(A) is the applicable subsection of that statute, not Section 2903.13(B). Section 2903.13(A) provides that "[n]o person shall knowingly cause or attempt to cause physical harm to another * * *." Because Section 2903.13(A) already encompasses "an attempt to commit" assault, Section 2923.02 cannot be applied to it. See State v. McCornell , 8th Dist. Cuyahoga No. 91400, 2009-Ohio-1245, 2009 WL 712958, ¶ 25-29 (concluding that defendant could not be found guilty of attempting to violate Section 2903.13(A) ). Accordingly, the trial court exercised appropriate discretion when it denied Mr. Duffield's request for a jury instruction on attempted reckless assault. Mr. Duffield's third assignment of error is overruled.

III.

{¶ 17} Mr. Duffield's assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

SCHAFER, P.J.

CALLAHAN, J.

CONCUR.


source: Caselaw Access Project

author: DONOVAN, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Erica THOMASON, Defendant-Appellant
    NO.: 27500
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on March 30, 2018
    MATHIAS H. HECK, JR., by HEATHER JANS, Atty. Reg. No.84470, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 W. Third Street, Fifth Floor, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee.
    CHARLES SLICER III, Atty. Reg. No. 59927, 426 Patterson Road, Kettering, Ohio 45419, Attorney for Defendant-Appellant.
   DONOVAN, J.

{¶ 1} Defendant-appellant Erica Thomason appeals her conviction and sentence for one count of felonious assault (deadly weapon), in violation of R.C. 2903.11(A)(2), a felony of the second degree. Thomason filed a timely notice of appeal with this Court on March 20, 2017.

{¶ 2} The incident which forms the basis for the instant appeal occurred at approximately 5:45 p.m. on May 19, 2016, at the Family Dollar Store located at 440 James H. McGee Boulevard in Dayton, Ohio, when the victim, LaDonna Cook, traveled to the store in order to purchase aluminum foil. Upon arriving at the store, Cook observed Thomason sitting in a car in the parking lot with her daughter, Dashelle Moon , and two other females. The record establishes that Cook and Thomason had a negative history with each other dating back to November of 2015. Thomason had threatened physical violence against Cook on at least three prior occasions.

{¶ 3} Upon entering the store, Cook observed Thomason enter the store after her, whereupon Thomason looked around and then walked back outside to the parking lot. Cook testified that after doing this twice, Thomason went outside and stood in front of Cook's parked car. Cook testified that while she was in the checkout line to purchase the aluminum foil, she was also speaking with a friend on her cellphone regarding Thomason's behavior. Exie Johnson, the employee who was checking Cook out, overheard the telephone conversation. After completing the transaction, Johnson informed Cook that she could come and stand behind the register in a secured area where she would be safe from Thomason.

{¶ 4} Cook declined Johnson's offer and instead went to Aisle 21 in the store and called 911 because she feared that Thomason was planning to attack her. While Cook was speaking with the 911 dispatcher, Moon came into the store, approached Cook, and stated that Thomason had given her permission to allow Moon to "beat up Cook." Cook testified that she told Moon to leave. After Moon left, Cook testified that she grabbed a hammer from off the shelf so that she could protect herself.

{¶ 5} Shortly thereafter, Moon reentered the store and approached Cook. As Moon approached Cook, Thomason walked around from the other side of the aisle and approached Cook from behind. While Moon recorded the incident with her cellphone, Thomason grabbed Cook from behind and rammed her into a wall. Thomason then forced Cook onto the ground and began dragging her around by her hair. Cook testified that she dropped the hammer during the attack, and Thomason was able to gain control of it. Johnson testified that she observed Thomason repeatedly hit Cook in the back with the hammer while she was laying on the ground. The store manager attempted to break up the fight, and ultimately Moon also helped pull Thomason away from Cook. At trial, the State introduced into evidence the partial recording of the assault retrieved from Moon's cellphone.

{¶ 6} Cook testified that once the attack ended, Thomason and Moon ran out of the store laughing and joking with each other. Thomason and Moon had left the scene by the time that the police arrived. As part of their investigation, the police photographed the injuries suffered by Cook during the attack, including bruising and cuts to the right side of her face, injuries to her arm, and bruising on her back.

{¶ 7} On June 27, 2016, Thomason was indicted for one count of felonious assault with a deadly weapon. At her arraignment on July 7, 2016, Thomason pled not guilty to the charge against her.

{¶ 8} A jury trial was held which began on February 6, 2017, and ended on February 8, 2017. Thomason was found guilty of felonious assault with a deadly weapon, and the trial court ordered adult probation to prepare a presentence investigation report (PSI). Thereafter on March 14, 2017, the trial court sentenced Thomason to four years in prison.

{¶ 9} It is from this judgment that Thomason now appeals.

{¶ 10} Thomason's first assignment of error is as follows:

{¶ 11} "COUNSEL FOR THE DEFENDANT WAS INEFFECTIVE AS SHE DID NOT ADVISE HER CLIENT OF HER RIGHT TO TESTIFY IN HER OWN DEFENSE. FURTHER, COUNSEL FOR DEFENDANT WAS INEFFECTIVE FOR FAILURE TO MAKE PROPER OBJECTIONS."

{¶ 12} In her first assignment, Thomason contends that the she received ineffective assistance when her counsel failed to advise her that she could testify in her own defense. Thomason further argues that her counsel was ineffective for failing to ask the trial court to instruct the jury to disregard comments made by a State witness, Exie Johnson. Two separate objections to specific portions of her testimony had been sustained. Lastly, Thomason argues that trial counsel was ineffective for failing to request a jury instruction of self-defense.

{¶ 13} "We review the alleged instances of ineffective assistance of trial counsel under the two prong analysis set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, * * *. Pursuant to those cases, trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Strickland , 466 U.S. at 688 [104 S.Ct. 2052]. To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel's conduct fell below an objective standard of reasonableness and that his errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Id. Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel's perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel." (Internal citation omitted). State v. Mitchell , 2d Dist. Montgomery No. 21957, 2008-Ohio-493, 2008 WL 344149, ¶ 31.

{¶ 14} An appellant is not deprived of effective assistance of counsel when counsel chooses, for strategic reasons, not to pursue every possible trial tactic. State v. Brown , 38 Ohio St.3d 305, 319, 528 N.E.2d 523 (1988). The test for a claim of ineffective assistance of counsel is not whether counsel pursued every possible defense; the test is whether the defense chosen was objectively reasonable. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reviewing court may not second-guess decisions of counsel which can be considered matters of trial strategy. State v. Smith , 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985). Debatable strategic and tactical decisions may not form the basis of a claim for ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy had been available. State v. Cook , 65 Ohio St.3d 516, 524, 605 N.E.2d 70 (1992).

{¶ 15} Initially, we note that the record indicates that Thomason testified on her own behalf at trial. Therefore, Thomason's argument that her trial counsel was ineffective for failing to inform her that she could testify at trial is without merit. Thomason is unable to establish any prejudice even if her assertion is true since she was able to relate her version of the facts.

SUSTAINED OBJECTIONS

{¶ 16} The first sustained objection that Thomason suggests establishes ineffective assistance by her trial counsel occurred during the following exchange between Johnson and the State:

The State: * * * What was the first thing that kind of caught your attention before the altercation started?
Johnson: Well, I was ringing up customers at the register and I rung up, I believe her name is LaDonna. And she had purchased aluminum foil, but she came in and she was just kind of irate and talking on the phone and saying that some people were outside and she knows that they're going to come in and try to fight her.
Defense Counsel: Objection as to what the other witness may have said, Your Honor.
* * *
The State: Your Honor, at this point it's not offered for the truth of the matter [sic] it will explain her conduct.
The Court: Just approach, please.
(At Sidebar)
The Court: Is your objection hearsay?
Defense Counsel: It is.
* * *
The State: At this point it's not being offered for the truth but to explain her conduct, the effect on the-
Defense Counsel: Your Honor, she's talking about people being outside and the facts, presumably threat-alleged threats and so forth are really directed to the contact-the content of this case. I think she can testify as to what tone she was using on the phone.
The Court: Well, the question was what drew your attention. And-
Defense Counsel: As long as she doesn't talk about the content of the phone call I think it's all right.
The Court: Well, but that's-the content is what drew the attention.
The State: Your Honor, I can rephrase. I'll make sure it's abundantly clear that she's not-she has no idea if any of that was true, but it impacted her and she did something as a result of it.
The Court: Very well. I'll sustain subject to rewording.
(End Sidebar)
The State: Exie, so you heard a woman who was at your register having a conversation on the phone. Okay. And without going into what the woman said-
Johnson: Okay.
The State:-as a result, did you do anything or did you say anything to her?
A: Yes, I asked her if she wanted to come and stand behind the register.
Q: And that would be a secured area?
A: Yes.
Q: And why did you do that?
A: Because of the conversation she was having on the phone, I asked her if she wanted to stand behind the register so she could feel a little more safe.

Tr. 109-111.

{¶ 17} Thomason argues that although her trial counsel's objection to Johnson's testimony was properly sustained, counsel was ineffective for failing to ask the trial court to instruct the jury to disregard the testimony. At the beginning of the trial, the trial court provided the jury with the following opening instruction:

The lawyers present the evidence according to the rules. The judge enforces the rules and determines what evidence may be admitted. From time-to-time objections may be made by counsel. It is the duty of the Court to rule on what evidence is admissible. You must not draw any inferences for or against any party from the questions which the Court does not permit to be answered. Nor should you concern yourselves with the reasons for the ruling by the Court.
Since you do not know the answers to these questions, to speculate on what the answers might have been is tantamount to inventing evidence and being unfair to one of the parties. Further, you must disregard any evidence which the Court orders stricken.

Tr. 90.

{¶ 18} In its instructions to the jury at the close of the trial, the court stated the following:

You must not speculate as to why the Court sustained the objection to any question or what the answer to the question might have been. You must not draw any inference or speculate on the truth of any suggestion included in the question that was not answered.

Tr. 328.

{¶ 19} In our view, the testimony offered by Exie Johnson regarding telephone contents arguably constituted hearsay. Furthermore, it is generally accepted that the jury is presumed to follow the instructions of law given to it by the court. State v. Clark , 2d Dist. Clark No. 2013 CA 52, 2014-Ohio-855, 2014 WL 895421, ¶ 26, citing State v. Raglin , 83 Ohio St.3d 253, 264, 699 N.E.2d 482 (1998). Although defense counsel should have asked that the testimony be stricken and the jury instructed to disregard, Thomason cannot establish prejudice. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), syllabus. Defense counsel timely objected to the testimony by Exie Johnson regarding the contents, and the trial court sustained Defendant's objection. The trial court instructed the jury before and after the presentation of evidence regarding the effect of a sustained objection. Thus, an additional curative instruction for the jury to disregard Exie Johnson's hearsay comments would not have changed the outcome of the trial.

{¶ 20} We further note that the contents of Cook's 911 call, which were admitted into evidence without objection, essentially mirror the hearsay testimony provided by Exie Johnson insofar as Cook identified Thomason as being outside the store acting threateningly towards Cook. Therefore, even if the jury had been advised to disregard Exie Johnson's hearsay testimony, Cook's testimony and the 911 call were admitted which provided essentially the same evidence. Accordingly, we find that Thomason cannot establish that the outcome of the trial would have been any different had the trial court told the jury to disregard Johnson's hearsay statement after sustaining defense counsel's objection.

{¶ 21} The second sustained objection that Thomason suggests establishes ineffective assistance by her trial counsel occurred during the following exchange between Johnson and the State:

The State: What did you see Ms. Thomason do?
Johnson: She comes in and we have like a centerpiece. It's our register. Then it's a walkway [sic] then it's the centerpiece. And there's also a walkway behind the centerpiece which leads to the other aisles down the center. [Thomason] walks from the back where the aisles are and comes around and just jams Ms.-well, the victim, head straight into our back wall.
Q: I'm going to show again State's [Exhibit] 2 and 3. First State's 2; is this the area where the altercation occurred?
A: Yes.
Q: Okay. Now, you said at some point Ms. Thomason takes the victim's head and smashes it against the wall. Where does that occur? That screen in front-
Defense Counsel: Objection. I don't believe that's an accurate characterization [of] what she just testified to.
The Court: Sustained.
The State: What did you see Ms. Thomason do with the victim?
Johnson: She grabs [Cook] and forces her into the back wall, which is, I believe it's where our headphones are.
The State: Okay.

Tr. 115-116.

{¶ 22} Here, the record establishes that immediately after the trial court sustained defense counsel's objection, the State asked Johnson what she witnessed and she clarified her earlier testimony stating that Thomason forced Cook up against the back wall of the store. Upon review, we conclude that an instruction to the jury to disregard the State's alleged mischaracterization of Johnson's testimony would not have changed the outcome of the trial. Moreover, Exie Johnson initially testified that Thomason "jam[med] Ms.-well, the victim, head straight into our back wall. " In our view, the State's comment that Thomason "smashed" Cook's head into the back wall is not a complete mischaracterization of Exie Johnson's testimony. While the word "smashed" is a somewhat stronger language than "jammed," the difference is not so great as to warrant a different trial outcome. Additionally, in light of the abundant evidence adduced at trial establishing Thomason's guilt, the two portions of Exie Johnson's testimony highlighted by Thomason were not so prejudicial as to require a reversal of her conviction. In other words, we conclude that it is unlikely that Thomason would have been acquitted if curative instructions had been given after each objection had been sustained. Therefore, defense counsel's failure to request a curative instruction from the trial court for the jury to disregard Johnson's objectionable testimony did not amount to ineffective assistance.

Self-Defense Instruction

{¶ 23} " 'Self-defense is an affirmative defense, which means that the burden of going forward is on the defendant who must prove each element by a preponderance of the evidence.' " State v. Oates , 2013-Ohio-2609, 993 N.E.2d 846, ¶ 10 (3d Dist.), quoting State v. Kimmell , 3d Dist. Wyandot No. 16-10-06, 2011-Ohio-660, 2011 WL 497077, ¶ 19. (Other citations omitted.) "Affirmative defenses such as self-defense ' "do not seek to negate any elements of the offense which the State is required to prove" but rather they "admit[ ] the facts claimed by the prosecution and then rel[y] on independent facts or circumstances which the defendant claims exempt him from liability." ' " Id. at ¶ 10, quoting State v. Smith , 3d Dist. Logan No. 8-12-05, 2013-Ohio-746, 2013 WL 793208, ¶ 32, quoting State v. Martin , 21 Ohio St.3d 91, 94, 488 N.E.2d 166 (1986).

{¶ 24} To establish self-defense, a defendant must introduce evidence showing that: (1) he was not at fault in creating the violent situation; (2) he had a bona fide belief that he was in imminent danger of bodily harm; and (3) he did not violate any duty to retreat or avoid the danger. State v. Thomas , 77 Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997), citing State v. Williford , 49 Ohio St.3d 247, 249, 551 N.E.2d 1279 (1990). To support a claim for self-defense, a defendant must demonstrate that he acted out of fear or he felt that his life was threatened. State v. Conley , 2015-Ohio-2553, 43 N.E.3d 775, ¶ 59 (2d Dist.), citing State v. Crawford , 2d Dist. Montgomery No. 22314, 2008-Ohio-4008, 2008 WL 3166664, ¶ 26.

{¶ 25} In the instant case, the evidence adduced at trial established that Cook entered the Family Dollar store after observing Thomason sitting in a car in the parking lot of the store. Thomason testified that her daughter, Moon, went inside the store to see what Cook was doing. Thomason admitted that Moon came back outside and reported to her that Cook was going to call the police. Thereafter, Thomason twice entered and exited the store in order to observe Cook. Thomason testified that before entering the store a third time, she took off her shoes in preparation for a fight. Thomason was also informed that Cook had armed herself with a hammer per Moon. Thomason acknowledged that at this point she was very angry and unable to calm down. While Cook was inside the store calling 911 and essentially hiding, Thomason did not leave, but rather voluntarily entered the store specifically to attack Cook.

{¶ 26} Whereupon, Thomason entered the store and "rushed" Cook, knocking her into the back wall of the store as can be seen clearly in the video recorded on Moon's cellphone. Thomason then grabbed Cook and forced her to the ground, knocking the hammer out of her hand. Exie Johnson testified that Thomason then picked up the hammer and began hitting Cook in the back with it. Thomason's actions indicate that she was not acting in fear for herself or anyone else, rather she was acting in anger as the aggressor. We also note that Thomason's defense at trial was that she did not hit Cook with the hammer during the attack and could therefore only be convicted of misdemeanor assault.

{¶ 27} Simply put, the evidence adduced during trial did not support the argument that Thomason acted in self-defense, and defense counsel could have reasonably decided that a self-defense instruction was not warranted and would not be given. Thus, defense counsel's decision to not request an instruction on self-defense was tactical in nature and did not amount to ineffective assistance.

{¶ 28} Thomason's first assignment of error is overruled.

{¶ 29} Thomason's second assignment of error is as follows:

{¶ 30} "THE TRIAL COURT ERRED WHEN IT FOUND APPELLANT GUILTY OF FELONIOUS ASSAULT AS SUCH A FINDING IS AGAINST THE MANIFEST AND/OR SUFFICIENT WEIGHT OF THE EVIDENCE AND THE EVIDENCE PRESENTED WAS INSUFFICIENT TO SUPPORT THE CONVICTION."

{¶ 31} In her second assignment, Thomason contends that her conviction for felonious assault with a deadly weapon was not supported by sufficient evidence. Specifically, Thomason argues that Cook's injuries were inconsistent with being struck with a hammer. Thomason further argues that the evidence established that she was acting in self-defense, and her conviction is, therefore, against the manifest weight of the evidence.

{¶ 32} "In reviewing a claim of insufficient evidence, '[t]he relevant inquiry is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.' " (Citations omitted). State v. Crowley , 2d Dist. Clark No. 2007 CA 99, 2008-Ohio-4636, 2008 WL 4183964, ¶ 12.

{¶ 33} "A challenge to the sufficiency of the evidence differs from a challenge to the manifest weight of the evidence." State v. McKnight , 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 69. "A claim that a jury verdict is against the manifest weight of the evidence involves a different test. 'The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.' " (Citations omitted.) Id. at ¶ 71.

{¶ 34} The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of facts to resolve. State v. DeHass , 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). "Because the factfinder * * * has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder's determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness." State v. Lawson , 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).

{¶ 35} This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of fact lost its way in arriving at its verdict. State v. Bradley , 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510 (Oct. 24, 1997).

{¶ 36} R.C. 2903.11, the felonious assault statute, provides that "[n]o person shall knowingly do either of the following: * * * (2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance." R.C. 2903.11(A)(2). "Deadly weapon" means "any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon." R.C. 2923.11(A).

{¶ 37} Here, the State presented evidence that on May 19, 2016, Cook traveled to the Family Dollar store in order to purchase aluminum foil. Upon arriving at the store, Cook observed Thomason sitting in a car in the parking lot with her daughter, Moon, and two other females. Upon entering the store, Cook observed Thomason enter the store, look around, and then walk back outside to the parking lot. Cook testified that after doing this twice, Thomason went outside and stood in front of Cook's parked car. After Cook completed her purchase of the aluminum foil, Exie Johnson, an employee at the store, informed Cook that she could come and stand behind the register in a secured area where she would be safe from Thomason.

{¶ 38} Cook declined Exie Johnson's offer and instead went to Aisle 21 in the store and called 911 because she feared that Thomason was planning to attack her. While Cook was speaking with the 911 dispatcher, Moon came into the store, approached Cook, and stated that Thomason had given permission to Moon to "beat up Cook." Cook testified that she told Moon to leave. After Moon left, Cook testified that she grabbed a hammer from off the shelf so that she could protect herself. It is undisputed that a hammer can be used as a deadly weapon.

{¶ 39} Shortly thereafter, Moon reentered the store and approached Cook. As Moon approached Cook, Thomason walked around from the other side of the aisle and "rushed" Cook from behind. While Moon recorded the incident with her cellphone, Thomason grabbed Cook and rammed her into a wall. Thomason then forced Cook onto the ground and began dragging her around by her hair. Cook testified that she dropped the hammer during the attack, and Thomason was able to gain control of it. Exie Johnson, testified that she observed Thomason hit Cook at least four times in the back with the hammer while she was laying on the ground. The store manager attempted to break up the fight, and Moon also helped pull Thomason away from Cook. The police photographed the injuries suffered by Cook during the attack, including bruising and cuts to the right side of her face, injuries to her arm, and bruising on her back.

{¶ 40} Here, Thomason argues that Cook's injuries are not consistent with those of a hammer. However, the State was only required to establish that Thomason "[c]aus[ed] or attempt[ed] to cause physical harm to [Cook] * * * by means of a deadly weapon." Thomason testified that she picked up the hammer after Cook dropped it. Snapshots taken from the cellphone video recorded by Moon establish that Thomason did, in fact, pick up the hammer while she was attacking Cook. The cellphone video failed to capture the remainder of the assault after Thomason picked up the hammer. Although Thomason denied that she used the hammer during the attack, Exie Johnson testified that she observed Thomason strike Cook on her back at least four times with the hammer.

{¶ 41} Construing the evidence presented in a light most favorable to the State, as we must, we conclude that a rational trier of fact could find all of the essential elements of the crime for which Thomason was indicted and found guilty to have been proven beyond a reasonable doubt. Thomason's conviction for the instant offense is therefore supported by legally sufficient evidence.

{¶ 42} Furthermore, having reviewed the record, we find no merit in Thomason's manifest-weight challenge. It is well-settled that evaluating witness credibility is primarily for the trier of fact. State v. Benton , 2d Dist. Miami No. 2010-CA-27, 2012-Ohio-4080, 2012 WL 3871416, ¶ 7. Here the jury quite reasonably could have credited the extensive testimony provided by the State's witnesses, applied said evidence and all reasonable inferences to the elements of the offense, and thereafter, found Thomason guilty. Whether Thomason used the hammer during her attack on Cook was a question of fact for the jury to decide. Having reviewed the entire record, we cannot clearly find that the evidence weighs heavily against conviction, or that a manifest miscarriage of justice has occurred.

{¶ 43} Thomason's second assignment of error is overruled.

{¶ 44} Both of Thomason's assignments of error having been overruled, the judgment of the trial court is affirmed.

WELBAUM, P.J. and TUCKER, J., concur.

      Moon was Thomason's co-defendant at trial.


author: HALL, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Lance A. WILCOXIN, Defendant-Appellant
    No. 2017-CA-58
    Court of Appeals of Ohio, Second District, Clark County.
    Rendered April 6, 2018
    DANIEL DRISCOLL, Atty. Reg. No. 0074787, Clark County Prosecutor's Office, Appellate Division, 50 E. Columbia Street, P.O. Box 1608, Springfield, Ohio 45501, Attorney for Plaintiff-Appellee
    SAMANTHA L. BERKHOFER, Atty. Reg. No. 0087370, 202 N. Limestone Street, Suite 250, Springfield, Ohio 45502, Attorney for Defendant-Appellant
   HALL, J.

{¶ 1} Lance A. Wilcoxin appeals from his conviction and sentence on one count of aggravated robbery with a firearm specification.

{¶ 2} In his sole assignment of error, Wilcoxin contends the trial court erred in overruling his motion to suppress a witness' identification of him in a photospread. He argues that the photospread was unduly suggestive.

{¶ 3} The record reflects that Wilcoxin was one of two people who stole a cell phone at gunpoint from a student who was leaving a public library. The victim described one of the perpetrators as a white male with dreadlocks and a "teardrop" facial tattoo. (Suppression Tr. at 10). Springfield detective Sandra Fent, the only witness at the suppression hearing, testified that she prepared a photospread containing a picture of Wilcoxin, who had been identified as a suspect, and five other people. To create the array, Fent entered various physical characteristics into a program to produce a computer-generated list of pictures. She then went through the pictures to find five photographs of people who were most similar in appearance to Wilcoxin. (Id. at 6-8). A blind administrator who knew nothing about the case showed the six-person photospread to the victim, who identified Wilcoxin as one of the people who robbed her. (Id. at 9, 12).

{¶ 4} Following Fent's testimony, defense counsel argued that the photospread was unduly suggestive because Wilcoxin was the only person pictured who had a facial tattoo. (Id. at 16-17). The trial court rejected this argument and overruled Wilcoxin's motion to suppress the victim's identification. It reasoned:

The court finds that the presentation of the array to the victim was not suggestive in any way. SPD acted in accordance with the procedures outlined in Section 2933.83 of the Ohio Revised Code and 6.75 of SPD Procedure. Specifically, the photo array was presented to the witness by a blind administrator as defined in Section 2933.83(A)(2) of the Ohio Revised Code.
While the array itself may be somewhat suggestive since the defendant is the only person depicted with a teardrop tattoo, the Court finds that it was not so impermissibly or unduly suggestive as to give rise to a very substantial likelihood of misidentification. All six photographs depict males of somewhat similar age with light complexions, dark hair, and dark eyes. Five of the six photographs, including that of the defendant, depict facial hair and three of the six, including that of the defendant, depict dreadlocks or similarly looking braided hair. Furthermore, the teardrop tattoo on the defendant is not accentuated but barely visible.
The Court finds that Detective Fent, given the unique limitations placed upon her in this case, created a fair photo array that did not violate the defendant's right to due process.
While the defendant raises a potential reliability issue as to the resulting identification, the Court need not address it here because it goes to the weight of the identification and not its admissibility. * * *

(Doc. # 16 at 2).

{¶ 5} On appeal, Wilcoxin reiterates his argument about the photospread being unduly suggestive because he was the only person depicted with a facial tattoo. He also asserts that he was the only person shown wearing a "dreadlocks" hairstyle. Finally, he relies on portions of the trial testimony to argue that the victim's identification of him as one of the perpetrators was not reliable.

{¶ 6} "When a witness has been confronted with a suspect before trial, due process requires a court to suppress the witness's identification of the suspect if the confrontation was unnecessarily suggestive of the suspect's guilt and the identification was unreliable under the totality of the circumstances." State v. Harris , 2d Dist. Montgomery No. 19796, 2004-Ohio-3570, 2004 WL 1506227, ¶ 19. "The defendant must first show that the identification procedure was unduly suggestive. If the defendant meets that burden, the court must then consider whether the identification, viewed under the totality of the circumstances, is reliable despite the suggestive procedure. If the pretrial confrontation procedure was not unfairly suggestive, any remaining questions as to reliability go to the weight of the identification, not its admissibility, and no further inquiry into the reliability of the identification is required." (Citations omitted.) Id.

{¶ 7} The defendant "bears the burden of showing that the identification procedure was 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification' and that the identification itself was unreliable under the totality of the circumstances." State v. Sherls , 2d Dist. Montgomery No. 18599, 2002 WL 254144, *2 (Feb. 22, 2002), quoting Neil v. Biggers , 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). "We review a trial court's refusal to suppress a pretrial identification for an abuse of discretion." State v. Harmon , 2017-Ohio-8106, 98 N.E.3d 1238, ¶ 22 (2d Dist.), citing State v. Wilson , 2d Dist. Montgomery No. 22624, 2009-Ohio-1038, 2009 WL 597275, ¶ 19.

{¶ 8} Upon review, we see no abuse of discretion in the trial court's suppression ruling. The photo array is part of the record, and we have examined it. The array contains photographs of six young men of similar age, hair color, eye color, and skin tone. The photographs have similar backgrounds, and the men are dressed similarly. The small tattoo about which Wilcoxin complains is neither prominent nor a significant facial feature. Although the mark is visible, it is not clear, given the quality of the photographs, that it even is a tattoo. We note too that at least one of the other subjects, the person in the top row on the far right, has a similar-appearing mark on his cheek.

{¶ 9} In any event, there is no requirement that subjects in a photospread "bear no differing marks or blemishes." State v. Gordon , 10th Dist. Franklin No. 10-AP-1174, 2011-Ohio-4208, 2011 WL 3671876, ¶ 31, citing State v. Green , 67 Ohio App. 3d 72, 79, 585 N.E.2d 990 (8th Dist.1990) ; see also State v. Frazier , 2016-Ohio-727, 60 N.E.3d 633 (2d Dist.) (finding a photospread not unduly suggestive despite the fact that the defendant was the only person with tattoos all over his face); Roussell v. Caldwell , No. CV 17-846, 2017 WL 2790701, *7 (E.D. La. June 7, 2017), report and recommendation adopted , No. CV 17-846, 2017 WL 2778207 (E.D. La. June 26, 2017) ("Although the defendant was the only person in the photograph display with a facial tattoo, all had facial hair or other facial characteristics that resembled the defendant's description. From the defendant's photo, the mark below his eye is not distinguishable as a 'teardrop tattoo.' To require that the photographic display include other persons who look similar to the defendant and have a 'teardrop tattoo' is unreasonable. We find that the photographic display was not unduly suggestive."); United States v. Lang , No. 06-30124, 2007 WL 1725548, *10 (5th Cir. June 14, 2007) ("Lee's argument that the fact that the police lineup from which numerous witnesses selected Lee contained no other photographs of a man with a tattoo on his face makes it impermissibly suggestive is similarly unavailing. The government is not required to fill a lineup with other photos of men of roughly Lee's age, hair, and skin tone, all of whom have tattoos on their faces. As we have noted, '[p]olice stations are not theatrical casting offices; a reasonable effort to harmonize the lineup is normally all that is required.' Swicegood v. Alabama , 577 F.2d 1322, 1327 (5th Cir.1978) (quoting United States v. Lewis , 547 F.2d 1030, 1035 (8th Cir.1976) ). Disparity in physical appearance among the lineup photos is not enough to render an identification suggestive."); Bennett v. State , 223 Md. App. 768, 2015 WL 5893595, *6 (2015) ("Although the [teardrop] tattoo may somehow distinguish appellant from his neighbors in the array, it is not sufficient to brand the array as unduly suggestive. Maryland courts have not specifically considered the impact of teardrop tattoos on photographic array procedures, but they have considered similar markings and found them not to be suggestive.").

{¶ 10} Wilcoxin also complains about being the only person pictured wearing "dreadlocks." Although two other men are shown with a similar hairstyle, Wilcoxin contends they are wearing "cornrows" or "braids." Having reviewed the photographs, however, we note that the hairstyles are quite similar. Because we believe the six photographs are substantially alike, the trial court reasonably concluded that the photospread was not unduly suggestive.

{¶ 11} Finally, Wilcoxin cites portions of the trial testimony to argue that the victim's identification of him was unreliable. "No inquiry concerning the reliability of identification evidence is necessary, however, when there is no basis to conclude that it was the product of an impermissibly suggestive confrontation procedure." State v. White , 2d Dist. Montgomery No. 20324, 2005-Ohio-212, 2005 WL 120059, ¶ 48. Therefore, the trial court correctly declined to address Wilcoxin's argument about reliability of the victim's identification in its suppression ruling.

{¶ 12} The assignment of error is overruled, and the judgment of the Clark County Common Pleas Court is affirmed.

WELBAUM, P.J. and TUCKER, J., concur.

      At various places in the record, the appellant's last name is spelled "Wilcoxin," "Wilcoxen," and "Wilcoxon." For present purposes, we will use "Wilcoxin," which is the spelling found in the judgment entry on appeal. (Doc. # 20).


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jaron R. RICHARDSON, Defendant-Appellant.
    No. 2-15-0737
    Appellate Court of Illinois, Second District.
    Opinion filed April 6, 2018 Rehearing denied September 26, 2018
    Michael J. Pelletier, Patricia Mysza, and Chan Woo Yoon, of State Appellate Defender's Office, of Chicago, for appellant.
    Michael G. Nerheim, State's Attorney, of Waukegan (Patrick Delfino, Lawrence M. Bauer, and Aline Dias, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE McLAREN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Jaron Richardson, appeals the trial court's order dismissing his postconviction petition. He contends that the trial court erred by allowing appointed postconviction counsel to withdraw without stating why each of the contentions in defendant's petition lacked merit. Alternatively, defendant contends that counsel's assistance was unreasonable where he failed to amend the petition to add a viable claim. We affirm.

¶ 2 Following a jury trial, defendant was found guilty of unlawful use of a weapon by a felon while in possession of body armor ( 720 ILCS 5/24-1.1(a), (e) (West 2010) ). One of the issues at trial was whether the vest defendant was wearing was in fact body armor. Waukegan police detective Francisco Cancino testified that the vest was similar to one he wore daily as a police officer. He described how the vest's inserts protected the wearer's vital organs. He demonstrated how the inserts functioned.

¶ 3 In response to defense counsel's objection that the State was trying to qualify Cancino as an expert on body armor without having previously disclosed him as such, the court stated that qualifying him was not necessary. It nevertheless allowed the prosecutor to do so. Defense counsel again objected. In a sidebar, the court stated that it was returning to its "original ruling" that the State did not need to qualify Cancino as an expert and that the State should not be "wasting a lot of time" doing so.

¶ 4 The jury found defendant guilty. Defense counsel filed a posttrial motion arguing, inter alia , that the trial court erred by first advising the jury that Cancino had been qualified as an expert on body armor and then, after changing its ruling, failing to advise the jury that Cancino was not testifying as an expert. Defendant also filed a pro se posttrial motion alleging ineffective assistance of counsel. After counsel explained her strategy, the court denied both motions without appointing new counsel. The court sentenced defendant to 17 years' imprisonment.

¶ 5 On direct appeal, we held that expert testimony was not needed to prove that the vest in question was body armor. We noted that generally lay witnesses may testify about the nature of a substance they observe and with which they are familiar and that their testimony may even take the form of a conclusion as to what the substance is. People v. Richardson , 2013 IL App (2d) 120119, ¶ 12, 374 Ill.Dec. 338, 995 N.E.2d 477. Accordingly, we affirmed defendant's conviction. Id. ¶ 24.

¶ 6 Defendant then filed a pro se postconviction petition and requested appointed counsel. The trial court, finding that at least some claims were not frivolous, advanced the petition to the second stage of postconviction proceedings. See 725 ILCS 5/122-2.1(b) (West 2014). The court appointed Ian Kasper to represent defendant.

¶ 7 At the next status date, Kasper sought leave to file a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) and to withdraw as counsel. He said that he had spoken with trial counsel, appellate counsel, and defendant about the petition and had found nothing "that is justiciable or would be an appropriate motion as a post conviction petition that wasn't either litigated by the Second Circuit [sic ] or resolved earlier by this court." The court allowed him to file the certificate but did not allow him to withdraw.

¶ 8 The State moved to dismiss the petition. At a hearing on the motion, Kasper informed the court that defendant wished to personally argue his petition. Kasper stated that he had filed a Rule 651(c) certificate and had explained to defendant why he "agreed or disagreed" with his claims. Defendant confirmed that he wished to represent himself. The following colloquy then occurred:

"THE DEFENDANT: The reason why I want to argue the petition, Your Honor, is because when I filed this petition, I filed it as a pro se petition post-conviction [sic ].
THE COURT: Right.
THE DEFENDANT: Meaning that I had the intentions from the beginning to argue this throughout the whole proceeding myself, and I am under the understanding that counsel was appointed as stand-by counsel only, not the lead.
THE COURT: No.
THE DEFENDANT: I was not aware that counsel was supposed to take the lead in this. I've had one conversation with Mr. Kasper and that was over the phone and that was not enough time for me to go through all the ins and outs of my motions and issues and all the case laws that I have been researching for the past two years in a 30-minute conversation."

¶ 9 Later, the court questioned defendant further about his decision:

"THE COURT: * * *
So if you don't wish to have [Kasper] be your attorney, that's fine. I'll release him from the case, and you can proceed pro se if you wish to.
THE DEFENDANT: It is my wish, Your Honor."

¶ 10 In response to the court's queries, defendant said that he had some credits toward a postgraduate degree and felt capable of representing himself. The court then discharged Kasper, and defendant proceeded to argue in opposition to the State's motion to dismiss. Later in the hearing, defendant said that he hoped that he would not be held to the same standards as a lawyer. The court explained that he would, given that he had made the decision to represent himself. Defendant responded that "counsel came and showed up today and proved to me I wouldn't have been represented by him in that same manner ***. So that's why I pretty much was boxed in."

¶ 11 At the conclusion of the hearing, the court granted the State's motion and dismissed the petition. Defendant timely appeals.

¶ 12 Defendant argues that the trial court erred by allowing Kasper to withdraw without explaining specifically why each of defendant's contentions in his pro se petition lacked merit. Defendant contends that, despite asserting generally that none of his claims were "justiciable," Kasper never explained why his specific claims were frivolous. See People v. Kuehner , 2015 IL 117695, ¶¶ 9-10, 392 Ill.Dec. 347, 32 N.E.3d 655.

¶ 13 In response, the State points out that Kasper's motion to withdraw was denied and that Kasper did not leave the case until defendant elected to proceed pro se . Thus, the State contends, defendant waived the right to postconviction counsel.

¶ 14 Kuehner and People v. Komes , 2011 IL App (2d) 100014, 352 Ill.Dec. 440, 954 N.E.2d 300, both held that it was error to allow appointed postconviction counsel to withdraw without addressing specifically each of the defendant's claims and stating why they lacked merit. Here, however, we agree with the State that defendant clearly stated his intention to represent himself and thus waived his statutory right to the assistance of counsel.

¶ 15 Defendant insists that he was "forced to proceed pro se due to counsel's hostility to his claims." He cites his later remarks to the effect that he felt "boxed in." However, the record clearly refutes this contention. Defendant's earlier remarks quoted above show that he always intended to represent himself on the petition.

¶ 16 To be sure, defendant voiced concerns about the thoroughness of Kasper's consultation with him. However, he had already made clear that his "intentions from the beginning" were to represent himself and that he would accept Kasper-or any attorney-only as stand-by counsel. Thus, defendant freely chose to argue the petition himself.

¶ 17 A similar analysis disposes of defendant's second contention, that Kasper provided unreasonable assistance by failing to amend the pro se petition to include the additional claim that appellate counsel was ineffective for failing to argue that the trial court erred by failing to instruct the jury that Cancino was not testifying as an expert. A postconviction petitioner's right to counsel is statutory, not constitutional ( People v. Suarez , 224 Ill. 2d 37, 42, 308 Ill.Dec. 774, 862 N.E.2d 977 (2007) ), and a postconviction petitioner is entitled only to a reasonable level of assistance ( People v. Patterson , 2012 IL App (4th) 090656, ¶ 23, 361 Ill.Dec. 682, 971 N.E.2d 1204). Rule 651(c) ensures such reasonable assistance by requiring that postconviction counsel consult with the defendant to ascertain his contentions of deprivation of his constitutional rights, examine the record of the trial court proceedings, and make any amendments to the defendant's pro se petition that are necessary for an adequate presentation of his contentions. Suarez , 224 Ill. 2d at 42, 308 Ill.Dec. 774, 862 N.E.2d 977 (citing Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013) ).

¶ 18 We note that generally postconviction counsel need amend the petition only to present the defendant's contentions, not to add new claims. People v. Peoples , 346 Ill. App. 3d 258, 262, 281 Ill.Dec. 612, 804 N.E.2d 577 (2004). In any event, though, defendant represented himself at the hearing on the petition, thus waiving the right to counsel. Defendant's remarks show that he carefully considered the issues he wanted to present, and nothing in the record suggests that he sought Kasper's assistance in amending the petition. In People v. French , 210 Ill. App. 3d 681, 690, 155 Ill.Dec. 457, 569 N.E.2d 934 (1991), we held that a defendant who discharged his postconviction counsel and elected to proceed pro se could not later complain about counsel's representation. So too here.

¶ 19 The judgment of the circuit court of Lake County is affirmed. As part of our judgment, we grant the State's request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls , 71 Ill. 2d 166, 178, 15 Ill.Dec. 759, 374 N.E.2d 194 (1978).

¶ 20 Affirmed.

Justices Zenoff and Burke concurred in the judgment and opinion.


text:
    Destin MCINTOSH, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. WALGREENS BOOTS ALLIANCE, INC., Defendant-Appellee.
    No. 1-17-0362
    Appellate Court of Illinois, First District, FIRST DIVISION.
    April 23, 2018
    Siprut PC, of Chicago (Joseph J. Siprut, Todd L. McLawhorn, and Richard S. Wilson, of counsel), for appellant.
    Morgan, Lewis & Bockius LLP, of Chicago (Kenneth M. Kliebard and Gregory T. Fouts, of counsel), for appellee.
   PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Destin McIntosh filed a putative class-action complaint seeking damages from defendant Walgreens Boots Alliance, Inc., for allegedly imposing and collecting the Chicago Bottled Water Tax (Chicago Municipal Code § 3-43-010 et seq. (added Nov. 13, 2007) ) on retail sales of beverages that were exempt from the tax. Defendant filed a motion to dismiss plaintiff's complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619(a)(9) (West 2016) ), arguing that plaintiff's claim was barred by the voluntary payment doctrine. The circuit court granted defendant's motion and dismissed plaintiff's complaint with prejudice. Plaintiff appeals. For the following reasons, we reverse the circuit court's judgment and remand for further proceedings.

¶ 2 BACKGROUND

¶ 3 Since January 1, 2008, the City of Chicago (City) has imposed a five-cent tax on the retail sale of each bottle of water sold in the city. Chicago Municipal Code § 3-43-030 (added Nov. 13, 2007). The retail bottled water dealer is required to include the tax in the sale price of the bottled water. Id. The purchaser of bottled water is ultimately liable to the City for payment of the tax. Id. § 3-43-040. The wholesale bottled water dealer is responsible for collecting the tax from the retail bottled water dealer and is responsible for reporting and remitting the tax to the City. Chicago Municipal Code § 3-43-050(A) (amended Nov. 16, 2011). Furthermore, "[a]ny wholesale bottled water dealer who shall pay the tax levied * * * shall collect the tax from each retail bottled water dealer in the city to whom the sale of said bottled water is made, and any such retail bottled water dealer shall in turn then collect the tax from the retail purchaser of said bottled water." Id. § 3-43-050(B). Alternatively, "[i]f any retailer located in the City shall receive or otherwise obtain bottled water upon which the tax imposed herein has not been collected by any wholesale bottled water dealer, then the retailer shall collect such tax and remit it directly" to the City. Id. § 3-43-050(C).

¶ 4 The City specifically excludes certain bottled beverages from the tax. The exceptions are set forth in the Chicago Bottled Water Tax Guide, https://www.cityofchicago.org/content/dam/city/depts/rev/supp_info/TaxSupportingInformation/BottledWaterTaxGuide.pdf (last visited Apr. 18, 2018). The tax guide states that "taxable products" include, "In general, all brands of non[-]carbonated bottled water intended for human consumption." Id. The tax guide then lists 12 "non-taxable examples" of products that are exempt from the tax. Relevant to the matter before us, the City exempts Perrier, mineral water, and "other products similar to those listed above due to carbonation and/or other features such as flavoring." Id.

¶ 5 On August 15, 2016, plaintiff filed a verified class-action complaint seeking damages under the Consumer Fraud and Deceptive Practices Act (Consumer Fraud Act) ( 815 ILCS 505/1 et seq. (West 2016) ). For the purposes of this appeal, we accept as true all the well-pleaded facts in plaintiff's complaint and draw all reasonable inferences in his favor. Edelman, Combs & Latturner v. Hinshaw & Culbertson , 338 Ill. App. 3d 156, 164, 273 Ill.Dec. 149, 788 N.E.2d 740 (2003). The complaint alleged that in November 2015, news outlets reported that defendant was charging the tax on sparkling water sales that were supposed to be exempt. These reports included photos of receipts reflecting the imposition of the tax on purchases of exempt products. In response to these reports, defendant announced that it had "corrected the issue." Plaintiff alleged that in 2015, he purchased Perrier, LaCroix, and Smeraldina on multiple occasions from four different Walgreens locations in Chicago. He alleged that he was charged the tax on each of his purchases of carbonated, flavored, and mineral water, even though the beverages were exempt from the tax. He further alleged that he did not "expect or bargain" to be charged the tax and "did not realize" he had been charged the tax.

¶ 6 Plaintiff's one-count complaint asserted that defendant represented to purchasers of bottled water that "the total price included the tax required and allowable by law" and that defendant "knowingly overcharged taxes" to plaintiff and others "by improperly charging the [tax] on sales of carbonated, flavored and mineral water." Plaintiff claimed that defendant's overcharge "was inconspicuous in that only a close inspection and investigation of the applicable tax rates and specific rates charged by [defendant] would reveal the overcharge." Plaintiff claimed that defendant's conduct constituted "a deceptive and unfair practice" under the Consumer Fraud Act because defendant intended plaintiff and others to rely on its representations in order to purchase products sold by defendant. The complaint alleged that defendant's "unfair and deceptive practices took place in the course of trade or commerce" and that plaintiff and others "suffered injuries in fact and actual damages, including the loss of money and costs incurred as a result of [defendant's] violation" of the Consumer Fraud Act. Finally, plaintiff alleged that his and others' injuries were proximately caused by defendant's unfair and deceptive behavior, "which was conducted with reckless indifference toward the rights of others, such that punitive damages are appropriate." The complaint sought an order certifying a class and awarding actual and statutory damages, reasonable attorney fees and costs, and other relief.

¶ 7 Defendant filed a motion to dismiss plaintiff's complaint pursuant to section 2-619(a)(9) of the Code ( 735 ILCS 5/2-619(a)(9) (West 2016) ). Defendant argued that plaintiff's claim was barred by the voluntary payment doctrine because the tax "was disclosed to [p]laintiff at the time he paid it, and the tax was remitted to the taxing authority." The motion was fully briefed. On January 27, 2017, the circuit court held a hearing on the motion to dismiss. A handwritten order was entered that same day granting defendant's motion to dismiss the complaint with prejudice "for the reasons stated in open court based on Lusinski v. Dominick's [Finer Foods, Inc. ], 136 Ill. App. 3d 640, 91 Ill.Dec. 241, 483 N.E.2d 587 [ (1985) ]." Plaintiff filed a timely notice of appeal.

¶ 8 ANALYSIS

¶ 9 Plaintiff raises two related arguments on appeal. First, he argues that the voluntary payment doctrine per se does not apply to claims under the Consumer Fraud Act. He contends that the Consumer Fraud Act codified public policy and that the voluntary payment doctrine does not apply to causes of action based on statutorily codified public policy. He relies primarily on our decision in Nava v. Sears, Roebuck & Co. , 2013 IL App (1st) 122063, 374 Ill.Dec. 164, 995 N.E.2d 303, in support of his argument. Second, he argues that even if the voluntary payment doctrine does apply to Consumer Fraud Act claims, his Consumer Fraud Act claim satisfies the doctrine's fraud exception. He contends that the circuit court's reliance on Lusinski was misplaced because that case did not involve any allegation of fraud. We address these arguments in turn.

¶ 10 We review de novo a circuit court's ruling on a motion to dismiss. Lyons v. Ryan , 201 Ill. 2d 529, 534, 269 Ill.Dec. 374, 780 N.E.2d 1098 (2002). A motion to dismiss under section 2-619 of the Code admits the legal sufficiency of the complaint and asserts an affirmative matter outside the pleading that avoids the legal effect of or defeats the claim. Relf v. Shatayeva , 2013 IL 114925, ¶ 20, 375 Ill.Dec. 726, 998 N.E.2d 18. In ruling on a section 2-619 motion, we accept as true all well-pleaded facts in plaintiff's complaint and draw all reasonable inferences in plaintiff's favor. Hermitage Corp. v. Contractors Adjustment Co. , 166 Ill. 2d 72, 85, 209 Ill.Dec. 684, 651 N.E.2d 1132 (1995). Conclusions of law or fact, however, will not be accepted as true unless supported by specific factual allegations. Merrilees v. Merrilees , 2013 IL App (1st) 121897, ¶ 14, 375 Ill.Dec. 855, 998 N.E.2d 147 (citing Ziemba v. Mierzwa , 142 Ill. 2d 42, 47, 153 Ill.Dec. 259, 566 N.E.2d 1365 (1991) ). An affirmative matter in a section 2-619(a)(9) motion is a defense that negates the cause of action completely or refutes conclusions of law or conclusions of fact contained in the complaint that are unsupported by allegations of specific fact upon which the conclusions rest. Illinois Graphics Co. v. Nickum , 159 Ill. 2d 469, 486, 203 Ill.Dec. 463, 639 N.E.2d 1282 (1994). The affirmative matter must be apparent on the face of the complaint or supported by affidavits or other evidentiary materials. Epstein v. Chicago Board of Education , 178 Ill. 2d 370, 383, 227 Ill.Dec. 560, 687 N.E.2d 1042 (1997). The defendant bears the initial burden of establishing that the affirmative matter defeats the plaintiff's claim; if the defendant satisfies the burden, the burden shifts to the plaintiff to demonstrate that the defense is unfounded or requires the resolution of a material fact. Id.

¶ 11 First, plaintiff argues that the voluntary payment doctrine per se does not apply to claims under the Consumer Fraud Act because the Act statutorily defines our state's public policy. We disagree with plaintiff that all Consumer Fraud Act claims are categorically exempt from the voluntary payment doctrine. We do, however, agree with Nava that the voluntary payment doctrine does not apply where the plaintiff has asserted a Consumer Fraud Act claim based on a deceptive practice or act.

¶ 12 "The Consumer Fraud Act is a regulatory and remedial statute intended to protect consumers, borrowers and business persons against fraud, unfair methods of competition, and other unfair and deceptive business practices." Cripe v. Leiter , 184 Ill. 2d 185, 190-91, 234 Ill.Dec. 488, 703 N.E.2d 100 (1998). Section 2 of the Consumer Fraud Act declares as unlawful

"[u]nfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the 'Uniform Deceptive Trade Practices Act', approved August 5, 1965 [ 815 ILCS 510/2 ], in the conduct of any trade or commerce." 815 ILCS 505/2 (West 2016).

To state a claim under the Consumer Fraud Act, a plaintiff must allege "(1) a deceptive act or practice by the defendant; (2) the defendant's intent that the plaintiff rely on the deception; and (3) the occurrence of the deception during a course of conduct involving trade or commerce." Robinson v. Toyota Motor Credit Corp. , 201 Ill. 2d 403, 417, 266 Ill.Dec. 879, 775 N.E.2d 951 (2002).

¶ 13 The voluntary payment doctrine states that money voluntarily paid under a claim of right to the payment, and with knowledge of the facts by the person making the payment, cannot be recovered back on the ground that the claim was illegal. Getto v. City of Chicago , 86 Ill. 2d 39, 48-49, 55 Ill.Dec. 519, 426 N.E.2d 844 (1981) (citing Illinois Glass Co. v. Chicago Telephone Co. , 234 Ill. 535, 541, 85 N.E. 200 (1908) ). "Absent fraud, misrepresentation, or mistake of fact, money voluntarily paid under a claim of right to the payment, with full knowledge of the facts by the person making the payment, cannot be recovered unless the payment was made under circumstances amounting to compulsion." Jenkins v. Concorde Acceptance Corp. , 345 Ill. App. 3d 669, 675, 280 Ill.Dec. 749, 802 N.E.2d 1270 (2003) (citing Nickum , 159 Ill.2d at 497, 639 N.E.2d 1282 ); see also Lusinski , 136 Ill. App. 3d at 643-44, 91 Ill.Dec. 241, 483 N.E.2d 587 (finding that voluntary payment doctrine bars claims against a retailer for erroneously imposed taxes absent a showing that customer paid taxes either (1) without knowledge of facts sufficient to form a basis for protesting the tax or (2) under duress).

¶ 14 In Nava , the plaintiff asserted a Consumer Fraud Act claim alleging that the defendant improperly assessed state sales taxes on the entire retail sale price of digital television converter boxes where part of the sale price was subsidized by a federal consumer voucher program. Nava , 2013 IL App (1st) 122063, ¶ 1, 374 Ill.Dec. 164, 995 N.E.2d 303. The defendant, in part, raised an affirmative defense that plaintiff's claim was barred by the voluntary payment doctrine. Id. ¶ 2. The parties filed cross-motions for summary judgment, and the circuit court granted summary judgment in favor of the defendant. Id. ¶ 5. We reversed. We concluded that, because the federal government is exempt from state sales and use taxes ( 35 ILCS 120/2-5(11) (West 2010); 35 ILCS 105/3-5(4) (West 2010) ), its voucher reimbursement could not be taxed. Nava , 2013 IL App (1st) 122063, ¶ 18, 374 Ill.Dec. 164, 995 N.E.2d 303. We then found that the plaintiff had produced sufficient evidence to create a genuine issue of material fact as to each element of his Consumer Fraud Act claim and that the defendant was not entitled to summary judgment. Id. ¶¶ 20-23. We then rejected the defendant's argument that the plaintiff's claim was barred by the voluntary payment doctrine, observing that the doctrine "does not apply where the payment was procured by deception or fraud." Id. ¶ 24. We further found that "because the doctrine cannot apply to impede causes of action based on statutorily defined public policy, this court has held that it should not apply to claims brought under the [Consumer Fraud] Act." Id. (citing Ramirez v. Smart Corp. , 371 Ill. App. 3d 797, 805 n.2, 309 Ill.Dec. 168, 863 N.E.2d 800 (2007) ).

¶ 15 In Ramirez , the plaintiff asserted, in part, a Consumer Fraud Act claim against the defendant medical record retrieval and copying service, alleging that the defendant overcharged patients for its service. Ramirez , 371 Ill. App. 3d at 799, 309 Ill.Dec. 168, 863 N.E.2d 800. The circuit court determined that the voluntary payment doctrine barred the plaintiff's claim and granted summary judgment in favor of the defendant. Id. at 801, 309 Ill.Dec. 168, 863 N.E.2d 800. On appeal, the plaintiff argued that she adequately pleaded that her payment was made under duress and that she lacked a reasonable alternative method for obtaining her medical records, which precluded the application of the voluntary payment doctrine. Id. We reversed the circuit court's judgment, finding that there were genuine issues of material fact as to the availability of reasonable alternative services. Id. at 803, 309 Ill.Dec. 168, 863 N.E.2d 800. We further considered whether the section 8-2001 of the Code ("Hospital Records Act") (735 ILCS 5/82001 (West 1998) ), which obligates hospitals to enable patients to obtain copies of their medical records, precluded the application of the voluntary payment doctrine. Relying on a case from Tennessee, we concluded that the Hospital Records Act contained an implied element of reasonableness in the billing of patients for services. Ramirez , 371 Ill. App. 3d at 804, 309 Ill.Dec. 168, 863 N.E.2d 800 (citing Pratt v. Smart Corp. , 968 S.W.2d 868 (Tenn. Ct. App. 1997) ). We found that the voluntary payment doctrine would not impede the plaintiff's claim of excessive charges because her claim "might well violate the intent of the Hospital Records Act, i.e. , that a party must act reasonably when fulfilling its mandate." Id. In a footnote, we observed that the plaintiff's complaint alleged a Consumer Fraud Act claim and noted that

"[t]he Consumer Fraud Act is a regulatory and remedial statute intended to give broad protection to consumers, borrowers, and business people against fraud, unfair methods of competition, and other unfair and deceptive business practices. [Citations.] The object of the statute is the protection of the public interest. [Citation]. Thus, [the defendant's] allegedly excessive charges would violate the fairness requirements of the Consumer Fraud Act as well." Id. at 805 n.2, 309 Ill.Dec. 168, 863 N.E.2d 800.

¶ 16 Aside from the fact that the footnote in Ramirez is obiter dictum (see Schweihs v. Chase Home Finance, LLC , 2016 IL 120041, ¶ 41, 412 Ill.Dec. 882, 77 N.E.3d 50 (noting that "obiter dictum * * * means a remark or opinion uttered by the way") ), the Ramirez court reached its conclusion without considering our decision in Flournoy v. Ameritech , 351 Ill. App. 3d 583, 286 Ill.Dec. 597, 814 N.E.2d 585 (2004). In Flournoy , the plaintiff asserted claims of fraud and negligence against the defendant prison telephone service provider. The plaintiff alleged that the defendant deliberately terminated collect calls he made from a prison phone, resulting in additional charges to the recipient of the calls in the form of initial calling fees and surcharges, and that the plaintiff sent money every month to his mother to cover the cost of his collect calls. Id. at 584, 286 Ill.Dec. 597, 814 N.E.2d 585. The circuit court dismissed the plaintiff's complaint under sections 2-615 and 2-619 of the Code. We reversed, concluding that the plaintiff adequately stated a cause of action under the Consumer Fraud Act. Id. at 587, 286 Ill.Dec. 597, 814 N.E.2d 585. We further held that the voluntary payment doctrine did not bar the plaintiff's claim because we concluded that the plaintiff sufficiently alleged a deceptive practice and that his claim was "in the nature of fraud." Id. We distinguished between Consumer Fraud Act claims based on unfair practices, which are barred by the voluntary payment doctrine, and Consumer Fraud Act claims based on deceptive practices or fraud, which are not barred by the voluntary payment doctrine. Id. (observing that in Jenkins , "the plaintiffs did not allege fraud sufficient to defeat the voluntary payment doctrine because their claim under the Consumer Fraud Act was based on an unfair practice rather than deception or fraud").

¶ 17 Regardless of whether the footnote in Ramirez is a fully accurate statement of the law, both Nava and Flournoy make clear that when a plaintiff sufficiently pleads a Consumer Fraud Act claim based on a deceptive act or that is in the nature of fraud, the voluntary payment doctrine does not apply and is not a bar to the plaintiff's claim. Here, plaintiff's underlying allegation is that defendant imposed a tax on transactions that were exempt from that tax. Therefore, to avoid the application of the voluntary payment doctrine, plaintiff's complaint must sufficiently allege a deceptive act or fraudulent conduct by defendant.

¶ 18 Plaintiff contends that his Consumer Fraud Act claim alleges a deceptive practice or otherwise satisfies the fraud exception to the voluntary payment doctrine. He asserts that, "Here, * * * [p]laintiff alleges that [defendant] knew it was not supposed to charge or collect the bottled water tax on [p]laintiff's purchases, yet [d]efendant deceptively represented that it could, and then in fact collected the monies from [p]laintiff." Defendant responds that plaintiff's complaint failed to allege sufficient facts to satisfy the fraud exception to the voluntary payment doctrine and failed to state a claim under the Consumer Fraud Act because he failed to allege sufficient facts to show that defendant intended to induce plaintiff's reliance on any misrepresentation. In his reply brief, plaintiff argues that defendant "forfeited" any argument regarding the sufficiency of his complaint by failing to raise that argument in the circuit court. Plaintiff's forfeiture argument, however, is misplaced. "[A]n appellee may raise any argument in support of the circuit court's judgment, even if the argument was not raised in the circuit court, as long as the argument has a sufficient factual basis in the record." BMO Harris Bank National Ass'n v. LaRosa , 2017 IL App (1st) 161159, ¶ 16, 413 Ill.Dec. 519, 78 N.E.3d 511. Therefore, we will evaluate plaintiff's complaint to determine whether it contains sufficient factual allegations to state a deceptive act or fraud claim under the Consumer Fraud Act.

¶ 19 Disregarding all of the numerous legal conclusions in plaintiff's complaint, he alleged that at the time he purchased Perrier, LaCroix, and Smeraldina from defendant, he did not know that his purchases were exempt from the bottled water tax. He further alleged that defendant (1) represented to purchasers of bottled beverages that the total purchase price included taxes required and allowable by law, (2) charged customers the bottled water tax on purchases of beverages that were exempt from the tax, (3) intended for its customers to rely on its representation that the total purchase price included required and allowable taxes, and (4) made its representations in the course of trade or commerce. Plaintiff further alleged that he and other customers suffered injuries and actual damages that were proximately caused by defendant's conduct.

¶ 20 We find that plaintiff's complaint sufficiently alleges a deceptive act and stated a claim under the Consumer Fraud Act and, therefore, the voluntary payment doctrine does not bar plaintiff's claim. As set forth above, the Consumer Fraud Act prohibits "the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any [such] material fact * * * in the conduct of trade or commerce." 815 ILCS 505/2 (West 2016). We held in Nava that, "[i]f, as the plaintiff alleges, the defendant charged a tax neither it nor the plaintiff was bound to pay, it can be found to have engaged in a deceptive act" for the purposes of the Consumer Fraud Act. Nava , 2013 IL App (1st) 122063, ¶ 20, 374 Ill.Dec. 164, 995 N.E.2d 303. Furthermore, we held that the defendant's intent that the plaintiff rely on a deceptive act might be established by the fact that the customer's payment of the tax was a natural and predictable consequence of the defendant asking the plaintiff to do so. Id. (noting that the defendant's intent that a plaintiff rely on a deceptive act does not require proof that the defendant intended to deceive the plaintiff). Here, plaintiff alleged that defendant represented to customers that the bottled beverages they purchased were subject to the bottled water tax, when the purchased products were in fact exempt from the tax, and represented to customers that the purchase price of the beverages included the required tax. Plaintiff further alleged that defendant intended that its customers rely on its representation that the products were subject to the tax when the customers were in fact buying tax-exempt products. Taking those allegations as true, the defendant could be found to have engaged in a deceptive act, which precludes the application of the voluntary payment doctrine as a defense. We find that plaintiff has sufficiently alleged a Consumer Fraud Act claim in the nature of fraud and, therefore, the voluntary payment doctrine does not bar his claim. We therefore reverse the circuit court's order dismissing plaintiff's complaint and remand for further proceedings.

¶ 21 CONCLUSION

¶ 22 For the foregoing reasons, the judgment of the circuit court is reversed, and we remand for further proceedings.

¶ 23 Reversed and remanded.

Justices Simon and Mikva concurred in the judgment and opinion.

      Plaintiff's complaint acknowledged that he did not have receipts for any of his purchases.

      The record on appeal does not contain a transcript of the circuit court's hearing on the motion to dismiss.