Violation of Probation Trial in Kane County - Not Guilty

People v. TW - My client was on probation for a felony drug case in Kane County. My client lives in Elgin. My client's ex-girlfriend also lives in Elgin. In October 2018, my client was arrested by the Elgin police and was charged with a Felony Aggravated Domestic Battery and a Misdemeanor Domestic Battery. After his arrest, the Kane County State's Attorney's Office filed a Petition to Violate his Probation. The State made an offer that involved a 5-year prison sentence for the Violation of Probation and for the Aggravated Domestic Battery and the Domestic Battery. The State's offer was rejected and the State elected to proceed with the Violation of Probation first.

The criminal charge of Domestic Battery, or Domestic Violence, while it's a Class A Misdemeanor in Illinois, it is considered one of the most serious Misdemeanors in Illinois. Domestic Battery carries a maximum punishment of up to one year in county jail and a maximum fine of $2,500. What makes a Domestic Battery an especially serious Misdemeanor in Illinois is that if you are convicted of a misdemeanor Domestic Battery, you can never expunge or seal the case from your record. The lowest possible sentence for a Domestic Battery in Illinois is Conditional Discharge, which is considered a criminal conviction. A Domestic Battery conviction can never be expunged or sealed from your criminal record. You can be guilty of a Domestic Battery if you make physical contact with a family member that results in physical harm to the family member. You can also be guilty of a Domestic Battery by simply making physical contact of an insulting or provoking nature with a family member.

An Aggravated Domestic Battery is much more serious than a Domestic Battery. An Aggravated Domestic Battery is a Class 2 felony which carries a maximum punishment of between 3 to 5 years in the penitentiary. You can receive probation for an Aggravated Domestic Battery, however, if you are convicted of an Aggravated Domestic Battery, you must serve a minimum of 60 consecutive days in jail. This 60-day minimum jail sentence cannot be waived or excused by the prosecutor or the judge. There's two ways that you can be guilty of an Aggravated Domestic Battery. The first way that you can be found guilty of an Aggravated Domestic Battery is if the victim was unable to breathe even for a second. This type of Aggravated Domestic Battery is commonly referred to as "strangulation".  The other type of Aggravated Domestic Battery involves cases in which the there was great bodily harm or permanent disability or disfigurement to the victim.

A hearing for a petition alleging a Violation of Probation, is much easier for the prosecutor to prove than a trial for a criminal charge. In a Violation of Probation hearing, the Rules of Evidence are relaxed. If you are being charged with a Violation of Probation, you are not entitled to a jury trial. In a Violation of Probation hearing the state has the burden of proving by a preponderance of the evidence, more probably true than not true, that you violated the terms of your Probation. In a trial for a criminal charge, you have the right to have your case decided by a jury. In a criminal trial the prosecutor has the burden of proving that you are guilty of each and every element of the crime that you are being charged with Beyond a Reasonable Doubt. When the state has a criminal case and a Violation of Probation pending, it is common for the state to proceed with the Violation of Probation first because it is easier for them to prove a Violation of Probation than it is to prove a criminal charge.

In this case, the prosecutor was claiming that my client struck his ex-girlfriend repeatedly and strangled her at least twice. The State was claiming that my client went to his ex-girlfriend's house looking for a gun that he had left behind her garage. My client's ex-girlfriend told the police that she encountered my client when she was throwing out the garbage. The ex-girlfriend claimed that when my client could not find his gun, he became angry and was threatening her to get her to tell him where she put his gun. The ex-girlfriend testified that my client was claiming that her brother had taken the gun. The ex-girlfriend testified that after a few minutes, the defendant took her to a friend's apartment a few blocks away. The ex-girlfriend testified that when she went to the friend’s apartment, there were two females and a male inside the apartment. While inside the apartment, the ex-girlfriend testified that my client repeatedly battered her and strangled her while trying to get her to admit that she, or her brother, had taken his gun. After about an hour, the ex-girlfriend testified that my client took her back home. The ex-girlfriend testified that the other three individuals followed my client's car back to her home. When they arrived back at her house, the ex-girlfriend testified that they were met by her brother outside the home. Before my client left, the ex-girlfriend testified that he hit her one more time.

While cross-examining the ex-girlfriend, I was able to point out several inconsistencies in her testimony and in the statements that she made to the police officers who arrived at the scene and interviewed her.  I was able to point out that the ex-girlfriend told the police officer the exact make and model and color of the gun that my client was supposedly looking for. The ex-girlfriend claimed that she did not tell the police this information but that the police officers were able to determine what the gun was based on what they found behind the garage. I was able to get the police officer to admit that all they found in the garage area was a gun cleaning kit and that his police report contained the information concerning the gun because the ex-girlfriend gave him this information. I was able to introduce social media pictures showing the ex-girlfriend's brother holding a gun that looked similar to the gun that she claims my client was looking for. In the social media pictures, the ex-girlfriend’s brother is clearly seen holding the gun and pointing it towards the camera.

I called one of the girls and the male that were inside the apartment to testify. After the police were called to the scene of the ex-girlfriend’s house, they went to the apartment and tried to talk to the female witness. The female witness refused to talk to the police. However, she came to court to testify on behalf of my client. She testified that she did not want to talk to the police because she did not know why they were there and that she has a deep distrust of the police. She testified that nothing happened inside the apartment. She testified that there was no strangulation, or any violence whatsoever. The male that was in the apartment also testified that nothing happened inside the apartment. The male that was inside the apartment testified that he went back to the ex-girlfriend’s home with my client and were encountered by the ex-girlfriend’s brother who came out of the house wearing a winter coat on a warm evening and had his hands inside of his jacket like he had a gun on him.

After hearing all of the evidence and all of the arguments, the Court ruled that the state had failed to prove the allegations in the Petition for Violation of Probation and dismissed the petition against my client.

James Dimeas is a nationally-recognized, award-winning, Violation of Probation and Aggravated Domestic Battery lawyer with over-27 years of experience handling Violation of Probation and Aggravated Domestic Battery cases throughout Chicago, Cook County, DuPage County, Kane County, and Lake County. Expertise named James Dimeas a "Best Criminal Defense Lawyer in Chicago". James Dimeas was named a "Best DUI Attorney". The National Trial Lawyers named James Dimeas a "Top 100 Criminal Defense Trial Lawyer". The American Society of Legal Advocates named James Dimeas a "Top 100 Criminal Defense Lawyer in the State of Illinois For the year 2018, 2019, and 2020". The American Institute of Criminal Law Attorneys named James Dimeas a "10 Best Attorney for Client Satisfaction". Attorney and Practice Magazine gave James Dimeas the "Top 10 Criminal Defense Attorney Award for Illinois," and the award for "DUI Defense Top 10.". The National Academy of Criminal Defense Attorneys gave James Dimeas the "Top 10 Attorney Award for the State of Illinois". AVVO rates James Dimeas as "Superb", 10 out of 10, the highest rating possible for any Violation of Probation and Aggravated Domestic Battery attorney in the United States.

If you are facing criminal charges in any courthouse in Chicago, Cook County, DuPage County, Kane County, and Lake County, you can always contact James Dimeas for a free and confidential consultation. You can talk to James Dimeas personally by calling 847-807-7405.