author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOUIS R. SUMMERS, Defendant-Appellant.
    Fourth District
    No. 4—89—0427
    Opinion filed August 30, 1990.

      Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Louis Summers, was convicted by a jury of first degree murder. His 19-month-old stepson, Ryan, was the victim. On appeal, defendant contends that (1) his conviction for first degree murder should be reduced to involuntary manslaughter, (2) the trial court improperly instructed the jury, (3) the trial court improperly admitted evidence of “other crimes,” and (4) he was denied the effective assistance of counsel.

We affirm.

I

On December 30, 1988, a caseworker with the Department of Children and Family Services (DCFS), Janice Turkington, visited defendant’s home in order to take Cindy Summers, defendant’s wife, to a laundromat. Ryan was asleep on the floor when Turkington arrived and nothing seemed out of the ordinary to her. However, Turkington could not see Ryan’s face.

Turkington and Cindy left around 7:20 a.m. Later that day, around 7:40 a.m., deputy sheriff George Williams served defendant with summonses for the custody hearings regarding his five children from a previous marriage. Two of defendant’s children from a previous marriage, ages 9 and 11, were already living in the house, as were three of Cindy’s children, ages 4, 2, and 19 months. Deputy Williams remained within defendant’s residence for approximately 10 minutes and noticed nothing unusual.

Thirty minutes later, Officer Lance Wiemelt responded to an emergency call from defendant’s home. As Wiemelt exited his squad car, defendant ran out of his house screaming that his baby had stopped breathing. Defendant told Wiemelt that the baby suffered from asthma. Officer Wiemelt found Ryan lying on the living room floor. Ryan was breathing sporadically and one of his toenails had been torn off. Officer Wiemelt observed no bruises on the child.

Defendant described the origin of Ryan’s toe injury and the asthma attack to several people. Each version of events differed from the others.

Defendant told Officer Wiemelt that Ryan got his foot caught in some bed springs and began crying. Defendant said he laid Ryan on the floor, and Ryan stopped crying. Then, when defendant entered the room after using the bathroom, Ryan’s body was jerking and he was not breathing. Defendant picked Ryan up and ran outside for some air.

Defendant later told Turkington that he found Ryan crying and that his pupils were dilated. Defendant gave Ryan mouth-to-mouth resuscitation until he appeared to be breathing. A few minutes later, Ryan began crying again and defendant found Ryan’s foot caught in the bed springs. Defendant instructed one of the older children living in the home to call for help.

At the hospital, defendant spoke with Officer Brenda Williams. Defendant told Officer Williams that 15 minutes after removing Ryan’s foot from the box spring, Ryan’s body began to jerk. He was unresponsive and gasping for breath. Defendant ran outside with Ryan and told his sons to call an ambulance.

Defendant was also interviewed by Officer Kelvin Roberts. Detective Neal Baker was present during this interview. Defendant related three versions of events to Roberts. First, defendant told Roberts that he heard Ryan crying and took Ryan’s foot out of the coil springs, but defendant was not sure what caused Ryan’s toe injury. In the next version, defendant said that he discovered Ryan seated on the floor some distance away from the coil springs. In his third version, defendant told Roberts that he lifted Ryan off the coil springs and rolled him over on the coil springs so that Ryan could go back to sleep.

Roberts pointed out to defendant that his version of events had changed three times. In response, defendant appeared frustrated, backed up in his chair, lowered his head, and said, “I know. I know.”

The next day, Detective Baker interviewed defendant at the police station. Defendant first told Baker that defendant heard Ryan crying, found him sitting on the floor beside the box spring, laid him down on the floor, and later found him gasping.

During the second part of the interview, Baker testified that defendant said he “might as well tell us that he did it because we were going to arrest him for it anyway.” Defendant then leaned forward, began to cry, and stated to Baker “that he had done it.” Defendant then explained that he picked Ryan up, laid him down next to his brother, told him in a forceful manner to shut up and go back to sleep, and struck him on the right side of his head. Defendant demonstrated to Baker how he hit Ryan by making a sweeping motion with his right hand. Defendant said that he took Ryan into the living room, instructed one of his older children to call an ambulance, shook Ryan, and washed Ryan’s bleeding foot. Defendant claimed he hit Ryan only once on the right side of the head. Defendant also told Baker that he did not know how Ryan’s toenail came off.

In this interview, defendant also told Baker that he did not love Ryan or Ryan’s brother. Defendant admitted that he referred to them in vulgar terms. In addition, defendant admitted that he disciplined all of the children by smacking their hands and butts and by “tapping” their foreheads.

Jan Kelly, a child-welfare specialist, also spoke with defendant on December 31, 1988. She testified that defendant told her, “I never meant it. I didn’t want this to happen.”

A friend of the Summerses, Blaine Vaughn, testified that he and two female friends visited the Summerses’ home on the evening of December 29, 1988. Vaughn stated that the children looked fine and he saw no one physically abuse them. However, when Vaughn and one of the female guests picked up Ryan and Ray, Ryan’s two-year-old brother, to play with them, defendant called the children “little fuckers and dick heads.” Later, Vaughn went into an adjacent room with defendant and, without others present, asked defendant not to call them those names.

Dr. Gregory Simmons, the pathologist who performed the autopsy on Ryan, testified that his examination of Ryan’s body revealed three bruises on the forehead, three or four bruises on the face, four bruises on the left arm, two bruises on the back, one bruise on the inner right knee, one abrasion on the right temple, and one avulsed toenail. Three of the bruises were sectioned and examined microscopically, and Dr. Simmons concluded they were relatively recent, consistent with having occurred within 72 hours of death. There was no inner limit on when the bruises were caused. Each bruise was about one inch in diameter. The bruises that were not sectioned nonetheless appeared to Dr. Simmons to have the same color as the bruises which were sectioned. All of the bruises appeared to be of the same age.

The internal examination revealed that Ryan had been suffering from a mild pneumonia. Dr. Simmons discovered that the brain was massively swollen and a portion of it protruded into the opening through which the spinal cord must travel. This protrusion was significant enough to cut off the respiratory drive center at the base of the brain. In Dr. Simmons’ opinion, Ryan’s death was caused by brain swelling resulting from external trauma to the head. However, Dr. Simmons was unable to determine the nature of the trauma or the amount of force applied. He opined the marks on Ryan’s head could have been caused by a fall, a run into a blunt object, or a human fist.

A pediatric neurosurgeon who examined Ryan on the morning of December 31, 1988, Dr. William Hanigan, diagnosed Ryan as having tin ear syndrome. This condition consists of three elements. Sometimes a fourth element is present. The first element is an injury or hemorrhage to the external ear. The second is marked cerebral swelling on the same side as the ear injury. The third is injury and hemorrhages in the retina, and the fourth is death within 36 to 48 hours of when the blow was struck. This syndrome is confined to children two to four years of age.

When Dr. Hanigan examined Ryan, he was in a coma, not breathing on his own, and brain dead. Ryan had bruises on his left ear and a hemorrhage on the top of the ear. The left side of Ryan’s brain was swollen in a manner consistent with having received a blow to the region of the left ear.

In Dr. Hanigan’s opinion, the trauma to Ryan’s head caused his death. He further opined that the trauma causing Ryan’s death was a tangential or glancing blow of sufficient magnitude as to preclude any inadvertent blow. Dr. Hanigan testified that the amount of force inflicted on Ryan was approximately 70 foot-pounds. According to Dr. Hanigan, Ryan suffered from “a pretty hefty blow” and “a directed smash.” Dr. Hanigan further explained that a boxer’s punch is roughly 90 to 110 foot-pounds. When the prosecutor asked if there was any way Dr. Hanigan could more fully describe 70 foot-pounds to the jury, he said yes, and he did so by striking the table with what he termed a “smash, a directed smash;”

Dr. Hanigan also testified that he had written an article for a medical journal on tin ear syndrome. He researched the amount of force necessary to cause the syndrome in consultation with a mechanical engineer and a biomedical engineer. He also spoke with trainers for professional boxers. By hooking up his hand to a variety of gauges and then striking a wall, Dr. Hanigan was able to judge various blows he struck in terms of foot-pounds. He further defined one foot-pound as essentially meaning the amount of force needed to lift one pound one foot. Dr. Hanigan further explained that these measurements were not exact, but rough estimates.

Cindy Summers, defendant’s wife, testified as to how she and the defendant disciplined their children. Cindy said that she would tap their hands or hit their buttocks; defendant would hit their heads. She said defendant often criticized her about the way in which she disciplined the children and encouraged her to “slap them real hard.” Defendant sometimes hit Ray, Ryan’s two-year-old brother, “up the side of the head” when they were at the supper table. Defendant would claim he was disciplining the child. When Cindy would ask defendant about bruises and marks on the children, defendant would claim they were clumsy and fell down a lot.

Cindy also stated that defendant never showed affection toward Ryan. On the night of December 29, 1988, Cindy testified that defendant called Ryan and Ray “motherfuckers and cocksuckers.” She said that defendant had many times before called them vulgar names. That night at dinner, Cindy said defendant stood behind the table, staring at her and the children. She said he watched every time she went to Ryan and Ray. She also said that if she would spend time with Ryan, defendant would give her dirty looks.

Defendant had been hospitalized in December 1988, and was released on December 23, 1988. Cindy testified that defendant behaved differently after he left the hospital. He did not show affection toward Ryan and Ray.

On the night of December 29, 1988, Cindy noted that Ryan was in good physical condition. Between 2 and 3 a.m., Ryan woke up crying, and defendant said he would check on Ryan. Defendant was with Ryan for a short time and then returned to bed, telling Cindy that Ryan was okay. Cindy did not hear any further crying from Ryan. Before Cindy went to do the laundry with Turkington on the morning of December 30, 1988, she testified that she “looked in on” Ryan and Ray, who were both sleeping in the next room. They appeared normal.

Later that same day at the hospital, Cindy testified defendant told her that Ryan had an asthma attack. A year earlier, Ryan had been in an oxygen tent in a hospital, but Cindy recalled the problem as being a condition more like bronchitis. Later, when they were at home, defendant told her Ryan had gotten his toe caught in the box springs.

Defendant did not testify, and the defense rested without presenting any evidence.

The jury returned a verdict of guilty of first degree murder.

II

Defendant first argues that his conviction for first degree murder should be reduced to involuntary manslaughter because the evidence failed to prove beyond a reasonable doubt that defendant struck Ryan knowing that his acts created a strong probability of death or great bodily harm. (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(a)(2).) In support of his claim, defendant alleges that the single blow to Ryan’s head, as distinguished from a continuous beating, supports a finding of recklessness.

A criminal conviction will not be set aside unless the evidence presented at trial is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276.) The evidence must be viewed in the light most favorable to the prosecution, and if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the conviction must be affirmed. (Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) The resolution of factual disputes and the assessment of the credibility of witnesses are functions of the jury. Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573. 99 S. Ct. 2781. 2789.

The State must prove beyond a reasonable doubt that a defendant charged with first degree murder, as defined in section 9—1(a)(2) of the Criminal Code of 1961 (Code), knew that the acts he performed which caused the victim’s death are such as to create a strong probability of death or great bodily harm. (Ill. App. Ct.. Rev. Stat. 1989, ch. 38, par. 9—1(a)(2).) Mental states, such as the intent to kill or to cause great bodily harm, are not commonly proved by direct evidence. (See People v. Terrell (1989), 132 Ill. 2d 178, 204, 547 N.E.2d 145, 155.) Instead, they may be inferred from the character of a defendant’s acts and the circumstances surrounding the commission of the offense. (Terrell, 132 Ill. 2d at 204, 547 N.E.2d at 155-56.) A defendant is presumed to intend the natural and probable consequences of his acts, and evidence that he committed a voluntary and wilful act which has the natural tendency to cause death or great bodily harm is sufficient to prove the intent required for the offense of murder. People v. Foster (1987), 119 Ill. 2d 69, 88, 518 N.E.2d 82, 90.

When a defendant intentionally uses a deadly weapon upon a victim, it may properly be inferred that he intended to cause the victim’s death. (People v. Salazar (1988), 126 Ill. 2d 424, 449, 535 N.E.2d 766, 776.) However, death may also be a natural consequence of a blow from a bare fist when there is great disparity in size and strength between the defendant and the victim, even though a bare fist is not ordinarily regarded as a deadly weapon. People v. Brackett (1987), 117 Ill. 2d 170, 179-80, 510 N.E.2d 877, 882 (170-pound adult male who beat an 85-year-old woman created strong probability of death or great bodily harm); People v. Ward (1984), 101 Ill. 2d 443, 452, 463 N.E.2d 696, 700 (adult male who beat a four-year-old child with his fists and a mop handle was not merely acting recklessly).

In People v. Drumheller (1973), 15 Ill. App. 3d 418, 304 N.E.2d 455, the defendant was convicted of murdering a 14-month-old child. The evidence in that case revealed that the defendant struck the child in the stomach and jerked him off the floor. The child died of peritonitis caused by an explosive rupture of the stomach from blunt trauma. The court concluded that, based on defendant’s conduct in striking the baby and on evidence of previous abuse, the jury could properly infer that defendant possessed the requisite mental state for murder. Drumheller, 15 Ill. App. 3d at 421, 304 N.E.2d at 457-58.

Murder convictions have been affirmed for cases of child abuse involving more than a single blow when coupled with a history of child battering. In People v. Mifflin (1984), 120 Ill. App. 3d 1072, 458 N.E.2d 1343, this court upheld a murder conviction of a 14-month-old child whom defendant struck and threw across a room into a crib. The victim in Mifflin had sustained a total of 21 bruises as well as several burns within the week before he was admitted to the hospital for his fatal injury. (Mifflin, 120 Ill. App. 3d at 1075, 458 N.E.2d at 1344-45.) In addition, the defendant admitted slapping the boy near the top of his head; and also admitted throwing the child at the crib, with the child striking the guard rail and falling to the floor. (Mifflin, 120 Ill. App. 3d at 1076, 458 N.E.2d at 1345.) The trial judge concluded the acts of defendant slapping the child in the head with a “sweeping backhand” and throwing him across the room caused his death. Mifflin, 120 Ill. App. 3d at 1076, 458 N.E.2d at 1346. '

Likewise, in People v. Szerletich (1980), 86 Ill. App. 3d 1121, 408 N.E.2d 1098, a murder conviction was affirmed based on defendant’s hitting a one-year-old child in the head three or four times. Finally, in People v. Jones (1986), 140 Ill. App. 3d 660, 671-72, 488 N.E.2d 1363, 1371, a “very severe beating” to a four-year-old victim which lasted 10 or 15 minutes coupled with previous abuse was found to demonstrate that defendant knew his acts created a strong probability of death or great bodily harm.

Defendant’s repeated verbal abuse of Ryan may be viewed as demonstrating both defendant’s hatred of Ryan and defendant’s wish to seriously harm him. A person who is driven by his bad temper to injure or kill another acts knowingly or intentionally, not recklessly. In this case, the evidence was sufficient to prove defendant wanted to hurt Ryan badly, and defendant succeeded in doing so. The jury reasonably inferred that defendant possessed the state of mind required for first degree murder based on the combination of the 70 foot-pound blow and the deliberate acts of physical mistreatment defendant inflicted upon Ryan. In addition, defendant’s multiple and conflicting versions of how Ryan’s injuries occurred could properly be viewed as indicative of defendant’s guilty knowledge. We conclude the evidence presented at trial was not so improbable or unsatisfactory that it created a reasonable doubt of defendant’s guilt when viewed in the light most favorable to the State.

Ill

Defendant also argues that the trial court committed reversible error by giving the following instruction:

“When you retire to the jury room you first will elect one of your members as your foreperson. He or she will preside during your deliberations on your verdict.
Your agreement on a verdict must be unanimous. Your verdiet must be in writing and signed by all of you, including your foreperson.
The defendant is charged with the offense of First Degree Murder. Under the law, a person charged with First Degree Murder may be found not guilty, or may be found guilty of First Degree Murder, or guilty of Involuntary Manslaughter.
You are to decide based upon the evidence and the law in this case whether to return a verdict of not guilty, a verdict of guilty of First Degree Murder, or a verdict of guilty of Involuntary Manslaughter.
Accordingly, you will be provided with three verdict forms: ‘not guilty’, ‘guilty of First Degree Murder’, and ‘guilty of Involuntary Manslaughter.’
From these three verdict forms, you should select the one verdict form that reflects your verdict and sign it as I have stated. Do not write on the other two verdict forms. Sign only one of these verdict forms.
If you find the State has proved the defendant guilty of both First Degree Murder and Involuntary Manslaughter, you should select the verdict form finding the defendant guilty of First Degree Murder and sign it as I have stated. Under these circumstances, do not sign the verdict form finding the defendant guilty of Involuntary Manslaughter.”

This instruction is Illinois Pattern Jury Instructions, Criminal, No. 26.01Q, at 367-68 (2d ed. Supp. 1989) (hereinafter IPI Criminal 2d (Supp. 1989)). Defendant specifically complains of its last paragraph, which informs the jury that if it finds that the State has proved defendant guilty of both first degree murder and involuntary manslaughter, it should sign only the verdict form finding defendant guilty of first degree murder. Citing People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335, defendant argues that this instruction misstates the law. We agree.

Hoffer involved a jury trial in which the defendant was charged with murder, voluntary manslaughter, and involuntary manslaughter. The jury returned verdicts finding him guilty of all three offenses. (Hoffer, 106 Ill. 2d at 189, 478 N.E.2d at 337.) The supreme court noted the State’s argument that the jury’s action was not inconsistent because it was instructed that defendant was charged “ ‘with the offense of murder, which includes the offenses of voluntary manslaughter and involuntary manslaughter.’ ” (Hoffer, 106 Ill. 2d at 193, 478 N.E.2d at 339, quoting Illinois Pattern Jury Instructions, Criminal, No. 2.01 (2d ed. 1981) (hereinafter IPI Criminal 2d).) The State also pointed out that the jury was given six forms of verdict — a guilty and a not guilty verdict form as to each charge — and not told that it could return a guilty verdict on only one of the charges. See IPI Criminal 2d No. 26.01. Hoffer, 106 Ill. 2d at 193, 478 N.E.2d at 339.

The supreme court rejected the State’s argument that the mental state required for murder “ ‘subsumed the lesser mental states required for voluntary manslaughter and involuntary manslaughter,’ ” and held that the jury verdicts were legally inconsistent. (Hoffer, 106 Ill. 2d at 194, 478 N.E.2d at 339.) In so holding, the court deemed the mental state necessary to sustain a conviction for involuntary manslaughter to be less culpable than, and mutually inconsistent with, the mental states necessary to sustain a conviction for murder. (Hoffer, 106 Ill. 2d at 194-95, 478 N.E.2d at 340.) “Where a determination is made that one exists [recklessness], the others [intent or knowledge], to be legally consistent, must be found not to exist.” (Hoffer, 106 Ill. 2d at 195, 478 N.E.2d at 340.) The court concluded that because “the jury concluded that the defendant killed another, intentionally or knowingly (murder, voluntary manslaughter) while simultaneously finding that defendant recklessly but unintentionally caused the death of the victim (involuntary manslaughter),” a new trial on all counts was required. Hoffer, 106 Ill. 2d at 195, 478 N.E.2d at 340.

While Hoffer dealt with murder as defined in section 9—1 of the Code prior to the enactment of first degree murder pursuant to Public Act 84—1450, effective July 1, 1987 (1986 Ill. Laws 4222, 4228-32), we note that the new offense of first degree murder essentially incorporates all of the law previously applicable to the offense of murder. (See Haddad, Second Degree Murder Replaces Voluntary Manslaughter in Illinois: Problems Solved, Problems Created, 19 Loy. U. Chi. L.J. 995 (1988); O’Neill, An Analysis of Illinois’ New Offense of Second Degree Murder, 20 J. Marshall L. Rev. 209 (1986).) Thus, we conclude that the Hoffer analysis is fully applicable to the new first degree murder statute.

In its introductory note to chapter 26.00 of the 1989 supplement to IPI Criminal 2d, the Illinois Supreme Court Committee on pattern jury instructions in criminal cases (Committee) cites Hoffer as one of several instances in which a confused jury returned logically or legally inconsistent verdicts. The Committee explained that its extensive modifications to instruction No. 26.01 were designed to avoid such problems in the future. (IPI Criminal 2d ch. 26.00, Introductory Note, at 317 (Supp. 1989).) Under the new form of instruction Nos. 2.01Q and 26.01Q (which are designed for use in cases, such as the present one, in which the jury is instructed on both first degree murder and involuntary manslaughter), the jury is no longer told that one offense “includes” another; further, the jury is now told to sign only one verdict form. (IPI Criminal 2d Nos. 2.01Q, at 42; 26.01Q, at 367-68 (Supp. 1989).) These changes thus address two of the concerns specifically discussed by the supreme court. Hoffer, 106 Ill. 2d at 189, 193, 478 N.E.2d at 337, 339.

The Committee’s goals are laudable and it has otherwise achieved them through its promulgation of the series of instructions for IPI Criminal 2d Nos. 2.01 and 26.01 in the 1989 supplement. However, the present case provides an instance where the modifications go too far. Thus, in cases like the present one, in which the jury has before it not only greater and lesser offenses, but a lesser offense having the less culpable mental state of recklessness, the last paragraph of IPI Criminal 2d No. 26.0 IQ (Supp. 1989) should not be given. The court’s giving of that last paragraph in the present case was, therefore, error.

However, because defendant raised no objection to this instruction, either in the conference on instructions or in his post-trial motion, and failed to tender his own instruction in lieu of the objectionable one that was given, this error is waived on appeal unless it so affects defendant’s substantial rights that it rises to the level of plain error. (People v. Holman (1984), 103 Ill. 2d 133, 176-77, 469 N.E.2d 119, 140.) In People v. Herrett (1990), 137 Ill. 2d 195, the Illinois Supreme Court recently discussed the criteria reviewing courts should employ when deciding whether alleged plain errors, affecting substantial rights, may be noticed on appeal under Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)). The court wrote the following:

“The plain error rule permits a reviewing court to consider a trial error not properly preserved for review in two circumstances. First, where the evidence in a criminal case is closely balanced, a reviewing court may consider a claimed error not properly preserved so as to preclude argument of the possibility that an innocent man may have been wrongly convicted. *** * * *
The plain error rule also may be invoked where the error is so fundamental and of such magnitude that the accused was denied a fair trial.” Herrett, 137 Ill. 2d at 209-10.

In applying these criteria to the present case, we note that immediately after reading the erroneous instruction to the jury, the court stated the following:

“In other words, ladies and gentlemen, there are three forms of verdict. Only one of these should be signed by all of you. As
I have stated, involuntary manslaughter is an included offense, which means the elements of involuntary manslaughter are included in murder, and so if, in theory, you should find him guilty of murder, that would necessarily mean under the law not guilty of involuntary manslaughter and not vice versa. If he were guilty of involuntary manslaughter, he would necessarily be not guilty of murder, and then you have the not guilty form if you find he is not guilty of either of those offenses.” (Emphasis added.)

In compliance with Supreme Court Rule 451(c), the trial court should refrain from clarifying instructions orally from the bench unless the parties have otherwise agreed. (107 Ill. 2d R. 451(c); Ill. Rev. Stat. 1987, ch. 110, par. 2—1107(a).) Nevertheless, the trial court’s explanation was a correct statement of the law. Under Hoffer, the mental states for first degree murder and involuntary manslaughter are mutually exclusive. Accordingly, under these circumstances, a guilty verdict based upon one mental state necessarily finds the defendant not guilty of the charge which is based upon the other mental state. Thus, if the jury finds the defendant guilty of first degree murder, it is necessarily finding him not guilty of involuntary manslaughter; and likewise, if the jury finds the defendant guilty of involuntary manslaughter, it is necessarily finding him not guilty of first degree murder.

As we noted earlier, the IPI Criminal 2d No. 26.01 series of instructions, appearing in the 1989 supplement, should reduce the likelihood of inconsistent verdicts by instructing the jury that it is to sign only one verdict form. Nonetheless, all of the issues instructions in IPI Criminal 2d at some point state (as did the involuntary manslaughter issues instruction in this case), “If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” (See, e.g., Illinois Pattern Jury Instructions, Criminal, No. 7.08, at 67 (2d ed. 1981).) In accordance with this issues instruction, a jury which finds a defendant guilty of first degree murder might look in vain for a verdict form to sign indicating that the jury has found the defendant not guilty of involuntary manslaughter. However, the only verdict forms the jury would have to choose from would be the following: “We, the jury, find the defendant _guilty of first degree murder.” “We, the jury, find the defendant _ guilty of involuntary manslaughter.” and “We, the jury, find the defendant_not guilty.” (See IPI Criminal 2d Nos. 26.01Q, at 367-68; 26.05, at 400-01; 26.02, at 397-98 (Supp. 1989).) There is no verdict form available specifically finding defendant not guilty of involuntary manslaughter. Thus, we conclude that an instruction informing the jury in writing of what the trial judge stated orally in this case might be both appropriate and desirable.

The issue of whether the omission of a portion of a jury instruction constitutes plain error was considered in People v. Almo (1985), 108 Ill. 2d 54, 483 N.E.2d 203. In Almo, the trial court failed to read the jury the “fourth proposition” of the then-murder instruction which provided that the State must prove “ '[t]hat the defendant did not believe that circumstances existed which justified the use of the force which he used.’ ” (Almo, 108 Ill. 2d at 64-65, 483 N.E.2d at 207, quoting Illinois Pattern Jury Instructions, Criminal, No. 27.01 (1968).) The defendant in Almo argued that the jury did not realize that the mental states for murder and voluntary manslaughter are inconsistent. Therefore, defendant claimed it was likely to return convictions on both counts. Almo, 108 Ill. 2d at 65, 483 N.E.2d at 207.

The supreme court deemed this argument to be speculative and further found that, although the jury may have been initially confused, the trial court’s additional instruction alleviated any problem before any verdicts were entered. Almo, 108 Ill. 2d at 65, 483 N.E.2d at 208.

So too in the present case, the trial court explained the proper procedure for the jury to follow. In addition, the prosecutor stated during closing argument that the offenses before the jury were mutually exclusive. Last, we note that this record contains no indication that the jury in fact ever found that the State had proved defendant guilty of both first degree murder and involuntary manslaughter, thereby causing the erroneous portion of IPI Criminal 2d No. 26.01Q (Supp. 1989) to be activated. According to the supreme court’s analysis in Hoffer, because the mental states involved in these offenses are mutually exclusive, a jury ought not reach any such conclusions (even though, as in Hoffer itself, juries on rare occasions do just that). Given all of the circumstances before us, we conclude that the trial court’s giving of the erroneous instruction did not rise to the level of plain error.

IV

Defendant next contends that the trial court committed reversible error when it allowed the State to present “other crimes” evidence. Specifically, defendant argues that (1) the State failed to show that the marks on the victim’s brother, Ray, were inflicted by defendant, and (2) the photographs of Ray were highly inflammatory and unduly prejudicial.

Evidence showing that a defendant committed a crime for which he is not on trial is improper when its purpose is to show the defendant’s propensity to commit crime. (People v. Stewart (1984), 105 Ill. 2d 22, 61, 473 N.E.2d 840, 859.) However, evidence of other crimes is admissible to prove modus operandi, intent, identity, motive, absence of mistake, or any relevant purpose other than to show defendant’s propensity to commit crime. (People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, 823-84.) Before such evidence may be introduced, it must be shown that the crime or behavior actually occurred and that the defendant committed it or participated in its commission. Such proof, however, need not be beyond a reasonable doubt. People v. Kimbrough (1985), 138 Ill. App. 3d 481, 488-89, 485 N.E.2d 1292, 1298-99.

The three photographs, People’s exhibit Nos. 12, 14, and 15, depict Ray on the day of Ryan’s death. Exhibit No. 12 is a picture of Ray’s face which shows round red marks on his upper left cheek and lower right cheek, as well as a bruise on his chin. Exhibit Nos. 14 and 15 are photographs of a three-inch-long red mark on Ray’s ear.

The evidentiary foundation for these photographs consisted of both the testimony of Cindy Summers and Officer Baker. At trial, Cindy stated that she disciplined her children by hitting their hands or buttocks, although defendant encouraged her to slap them hard instead. When defendant disciplined Ryan and Ray, he would strike the sides of their heads. According to Cindy, defendant hit Ray one week before Ryan’s death.

Officer Baker testified about an interview he conducted with defendant the day after Ryan was beaten. In this interview, defendant explained that he had “tapped” all of the children, including Ray, on the side of the head and that he may have struck one of the children in the ear.

In People v. Milner (1984), 123 Ill. App. 3d 656, 463 N.E.2d 148, evidence of defendant’s abuse of three children was admitted in the case where defendant was charged with the murder of a fourth child. The evidentiary foundation for this testimony consisted of defendant’s admission that he had shaken these children and medical evidence revealing the similarity of injuries suffered by the deceased and the other children. Milner, 123 Ill. App. 3d at 661-62, 463 N.E.2d at 153.

Similarly, in People v. Wachal (1987), 156 Ill. App. 3d 331, 509 N.E.2d 648, witnesses observed and defendant admitted to hitting the deceased child on several occasions. The court determined that the probative value of this evidence outweighed the danger of any prejudicial effect in light of defendant’s own admissions. Wachal, 156 Ill. App. 3d at 337, 509 N.E.2d at 653.

The trial court’s decision regarding the admissibility of evidence of other crimes will not be disturbed on review unless it constitutes a clear abuse of discretion. (People v. Phillips (1984), 128 Ill. App. 3d 457, 460, 470 N.E.2d 1137, 1139.) We conclude that under the circumstances of this case, evidence that defendant struck the deceased’s two-year-old brother about the head at a time reasonably contemporaneous with the blows defendant allegedly struck the 19-month-old victim on his head, causing his death, is probative of the defendant’s state of mind as he performed these acts. Further, we find that the testimony of Cindy Summers and Officer Baker is sufficient to establish that defendant was the person who struck Ray on the side of the head. Accordingly, the trial court did not abuse its discretion in admitting this “other crimes” evidence.

V

Defendant additionally argues that he was denied the effective assistance of counsel because his attorney failed to object to (1) the jury instruction discussed in part III of this opinion, (2) a police officer’s statement that defendant’s statement kept changing, (3) evidence that defendant verbally abused Ryan and Ray, and (4) Dr. Hanigan’s demonstration explaining the force of 70 foot-pounds. The test of whether an attorney’s performance was ineffective is two-pronged. A defendant must show that the attorney’s performance “fell below an objective standard of reasonableness,” and must demonstrate that he was prejudiced by counsel’s deficient performance. Strickland v. Washington (1984), 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.

We conclude, based upon our careful review of this record, that defendant received vigorous, diligent, and sound representation. Most of the claims made to the contrary by defendant’s counsel on appeal involve rulings by the trial court that had an objection been made, it would have been properly overruled.

As an example, defendant maintains that he was denied the effective assistance of counsel when his attorney failed to object to Officer Roberts’ “opinion” that defendant’s statement kept changing. The plain fact is that based upon the statements of defendant that Roberts related to the jury, defendant’s version of events did keep changing. Hence, no prejudice is shown.

We also reject defendant’s argument that evidence indicating he repeatedly called Ryan and Ray vulgar names was more prejudicial than it was probative. Proof of defendant’s dislike of these children tends to show that Ryan died by criminal, not by accidental, means. The evidence of defendant’s outrageous verbal abuse toward these toddlers speaks eloquently of defendant’s likely mental state as defendant struck Ryan on his head to “discipline” that 19-month-old child.

Defendant next contends that defense counsel’s failure to object to Dr. Hanigan’s physical demonstration regarding the amount of force with which Ryan was hit constituted ineffective assistance. The trial court has a wide degree of discretion in ruling upon the appropriateness of courtroom demonstrations, and the exercise of that discretion will not be interfered with unless it has been abused. People v. Rose (1979), 77 Ill. App. 3d 330, 334, 395 N.E.2d 1081,1085.

At trial, Dr. Hanigan demonstrated the force of a blow equal to 70 foot-pounds. In preparation for this demonstration, Dr. Hanigan hooked up his hand to a variety of gauges in order to replicate the correct amount of force. This demonstration was highly probative of the amount of force defendant inflicted upon Ryan because the meaning of 70 foot-pounds is not likely known to the typical layperson. The trial court’s decision to allow Dr. Hanigan’s demonstration was within its discretion. Accordingly, defense counsel did not deny defendant effective assistance of counsel by failing to object to this demonstration.

Last, defendant again raises the question of the improper instruction, IPI Criminal 2d No. 26.01Q (Supp. 1989). As we stated in part III of this opinion, the notion that the erroneous portion of this instruction had any effect in this case is entirely speculative. Further, the error was in an approved IPI Criminal 2d instruction, thereby leading counsel to think that it was a correct statement of the law.

None of these complaints comes close to demonstrating ineffective assistance of counsel.

Affirmed.

LUND and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALLESTER ALEXANDER, JR., Defendant-Appellant.
    Third District
    No. 3—89—0657
    Opinion filed August 24, 1990.

      Daniel J. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a jury trial, the defendant, Allester Alexander, was found guilty of unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56½, par. 1402.1) and unlawful possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1987, ch. 56½, par. 1401.1). The trial court entered judgment on the intent to deliver count and sentenced the defendant to 15 years in prison. The defendant appeals. We affirm.

On January 12, 1989, Officers Steve Peterson and James Bridges of the Peoria police department received information that a woman they were looking for in connection with a fraud case was seen at an apartment complex. The informant indicated that the woman was in apartment 2F. The officers went to the complex, knocked on the door to 2F, and identified themselves as police officers. Edward McNeeley, the tenant, answered the door. He stepped into the hallway, closing the door behind him. The officers informed McNeeley that they were looking for Paula Carroll and that they would like to look through his apartment. McNeeley agreed to the search but requested that the officers wait a few moments while he picked up some clothing. McNeeley reentered the apartment, closed the door and locked it.

Bridges told Peterson that he was afraid someone would attempt to escape out the back of the apartment, so he went downstairs and walked toward the back door to the apartment building. As he approached the back door, Bridges heard “a noise like somewhat muffled metallic rattling.” Bridges went outside and noticed a white plastic garbage bag on the ground beneath the window of apartment 2F.

Meanwhile, Peterson was allowed into McNeeley’s apartment to conduct the search for Paula Carroll. Peterson noticed the defendant in the living room of the apartment. After looking through the apartment and finding that Carroll was not there, Peterson left the apartment and met Bridges coming up the stairs. The officers went outside, and Bridges showed Peterson the garbage bag. Bridges reached into the bag and pulled out a blanket. As he pulled out the blanket, a triple beam scale dropped out of the blanket. The officers looked into the plastic garbage bag and noted a paper grocery bag containing a paper carton. This carton was open. The officers noticed a white powdery substance in the carton which was spilling out into the paper bag.

As the officers were considering their next move, they heard the defendant in the hallway say something to the effect, “I will be back in a few minutes.” The defendant came down the stairs and was confronted by the officers. The defendant was asked whether he was the individual Peterson had just seen in apartment 2F. The defendant replied no and that he had been in the apartment across the hall, working. McNeeley then came downstairs. McNeeley and the defendant were arrested, handcuffed, and made to sit on the floor in the hallway, while other officers were called to the apartment complex. At one point, the defendant complained that the handcuffs were too tight. The defendant stood up, and while the handcuffs were being loosened, Bridges noticed something protruding from the defendant’s back pocket. Bridges retrieved the object, described as a round rubber grommet. It was later shown that the object was used to stabilize a triple beam scale during shipping.

The defendant testified that he had been dropped off at the apartment complex and that he planned to meet a woman called Sparky. After he was unable to locate her, he began walking down the road and was picked up by McNeeley, who he thought lived down the road from the complex. Instead, McNeeley returned to the apartment complex. The defendant testified that he had not known that McNeeley maintained an apartment in the complex. The defendant asked to use McNeeley’s phone to call Sparky.

The two had not been in McNeeley’s apartment very long when there was a knock on the door and the police announced their presence. McNeeley went into the hall and spoke with the officer. He reentered the apartment and while motioning toward a bedroom told the defendant to “get rid of that stuff.” The defendant ran to the bedroom and noticed a blanket in the middle of the room. He bundled up the blanket and stuffed it into a paper bag he found sitting open in the room. He noted an object in the blanket which he testified he later learned was the triple beam scale. He took the paper bag and put it into a white plastic garbage bag he also found in the bedroom. He then threw it all out the window. The defendant testified that he did not know of the presence of any drugs and that he thought the items he threw out the window were stolen goods. After throwing the bag out the window, he noticed a small rubber object on the floor in the area where the blanket had been lying. He picked the object up and put it in his back pocket. The defendant’s fingerprint was found on the paper carton, which tests later showed contained 801.9 grams of 99.7% pure cocaine.

On appeal, the defendant contends that he was not proven guilty beyond a reasonable doubt because the evidence was insufficient to show that he had actual or constructive possession of the cocaine.

When presented with a challenge to the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

To support a conviction for the unlawful possession of a controlled substance, the State must prove beyond a reasonable doubt that the defendant had knowledge of the controlled substance and that it was in his immediate and exclusive control. (People v. Scott (1987) , 152 Ill. App. 3d 868, 505 N.E.2d 42.) Possession may be established by evidence of actual physical possession or constructive possession. (People v. Jones (1982), 105 Ill. App. 3d 1143, 435 N.E.2d 823.) Actual possession requires an act of physical dominion over the narcotics, while constructive possession requires a showing that the defendant controlled the premises upon which the narcotics are found. (People v. Calhoun (1977), 46 Ill. App. 3d 691, 361 N.E.2d 55.) Actual possession is proved by testimony which shows defendant exercised some form of dominion over the unlawful substance, such as trying to conceal it or throw it away. People v. Scott (1987), 152 Ill. App. 3d 868, 505 N.E.2d 42.

It is well settled that knowledge is an essential element in the chain of proof of the crime of possession of narcotics. (People v. Ackerman (1971), 2 Ill. App. 3d 903, 274 N.E.2d 125.) Although the element of knowledge is seldom susceptible to direct proof, it may be proved by evidence of acts, declarations or conduct of the accused from which the inference may fairly be drawn that he knew of the existence of the narcotics at the place they were found. (People v. Mack (1957), 12 Ill. 2d 151, 145 N.E.2d 609.) Whether there is knowledge and control are questions of fact to be determined by the jury, and its findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of guilt. People v. Wiley (1988) , 174 Ill. App. 3d 444, 528 N.E.2d 26.

In the instant case, the defense went to extraordinary lengths to prove that the defendant was not a tenant or owner of the apartment. The defendant did not have control of the premises, and therefore we are not presented with a case of constructive possession. The question is whether the evidence was sufficient to prove actual possession.

Here, the defendant’s fingerprint was found on the paper carton containing the cocaine. The evidence showed that the amount and purity of the cocaine were such that it could not possibly have been held for an individual’s personal use. Under the circumstances, the jury could have fairly inferred from the evidence that the defendant had the requisite knowledge to prove actual possession. He threw the carton of cocaine, along with the other items in the plastic garbage bag, out the window. His conduct in running to the bedroom and disposing of the cocaine was sufficient to allow the jury to find that he had knowledge of presence of the cocaine. The jury was not required to believe the defendant’s explanation that he thought the items were stolen goods and that he was disposing of them out of friendship for McNeeley. It was for the jury to decide what weight and credibility to give to the defendant’s testimony. The evidence showed that the defendant lied to the police on at least two occasions during the course of their investigation.

In sum, viewing the evidence in the light most favorable to the prosecution, we find the jury could have found beyond a reasonable doubt the essential elements of possession with intent to deliver.

The defendant also contends that he is entitled to a new trial because testimony by a State’s witness indicated that the defendant had invoked his constitutional right to remain silent during the course of a police interrogation.

At trial, the State presented the testimony of Officer Michael White concerning statements made by the defendant while in police custody. White testified that after the defendant was taken to the Peoria County sheriff’s department, the defendant agreed to be interviewed by police officers, including White. At trial the following exchange took place between White and the assistant State’s Attorney:

“Q. Could you tell us what he said to you and what you said to him?
A. I told Mr. Alexander that I didn't believe him, that I believed that he knew about the cocaine that was found outside the window of the apartment and told him one of the theories that I had believed in, that Mr. Alexander had been within the apartment building, and that Mr. McNeeley had answered the front door when the two detectives had arrived there, and that with McNeeley at the front door, that I believed Alexander had thrown the items out the rear window of the apartment building.
Q. And was that the extent of your conversation with him?
A. He denied that and said that wasn’t true. I also told him that I didn’t believe he was responsible solely for that large amount of cocaine and asked him to talk with me about it. At that time he said that he thought he had better confer with an attorney before we spoke anymore, so our conversation was terminated at that point.”

The defendant argues that White’s statement regarding the termination of the interview improperly revealed to the jury the defendant’s invocation of his constitutional right to remain silent. However, we find the defendant waived this issue by the defendant’s subsequent actions at trial. Defense counsel did not object to the statement by Officer White concerning the termination of the interview. In fact, on cross-examination counsel questioned White extensively on the meaning of Miranda warnings and the fact that the defendant at one point in the interview expressed his desire to speak with an attorney before he said anything further to the police. We also note that the defendant in his testimony mentioned the termination of the interview and that in closing arguments both the State and defense counsel commented on the fact that the defendant terminated the interview with White.

Nor do we find merit to the defendant’s contention that counsel was ineffective in failing to object to the statement by White and then compounding the error by questioning White on the issue.

To prove ineffective assistance, the defendant must first demonstrate that his counsel’s performance failed to meet reasonable professional standards, and second must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. (People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357.) A defendant claiming ineffective assistance must overcome a strong presumption that the challenged action of counsel was the product of sound trial strategy and not of incompetence. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) In the instant case, the defendant has failed to overcome this presumption. Viewed in its totality, we cannot say that counsel’s representation failed to meet reasonable professional standards.

For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

BARRY and SCOTT, JJ., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    RHONDA DANHOF, Plaintiff-Appellant and Cross-Appellee, v. RICHLAND TOWNSHIP, Defendant-Appellee and Cross-Appellant.
    Third District
    No. 3—89—0589
    Opinion filed August 30, 1990.
    Rehearing denied October 2, 1990.

      Jerelyn D. Maher, of Janssen, Maher, Wertz & Miller, of Peoria (Jay H. Janssen, of counsel), for appellant.
    Sarah Hansen Sotos and Jenna Lynn Schoeneman, both of Judge & Knight, Ltd., of Park Ridge (Elizabeth Brown Knight, of counsel), for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff, Rhonda Danhof, was a passenger in a truck which lost control on a gravel roadway in Marshall County, Illinois, which resulted in Rhonda becoming a quadraplegic. The truck was owned by Rhonda’s fiance, Ted Vickers. At the time of the accident, Ted, who was also a passenger in the truck, was allowing his 13-year-old sister, Rebecca Vickers, to drive the truck. On May 20, 1985, the plaintiff filed a negligence action against Rebecca Vickers and Ted Vickers, the County of Marshall, and Richland Township. The County of Marshall was dismissed from the lawsuit on the basis that the roadway was under the jurisdiction of defendant Richland Township. The suit against Rebecca Vickers and Ted Vickers was dismissed after a good-faith settlement was reached wherein the driver’s insurance carrier, Country Companies, paid the policy limits applicable to the risk. The negligence claim against Richland Township, which alleged that the condition of the gravel roadway was a proximate cause of the accident, went to jury trial and the jury found for defendant Richland Township. The plaintiff filed a post-trial motion alleging that reversible error occurred in three instances: the jury’s misconduct during deliberations where the jury in order to define “proximate” consulted a dictionary which was not admitted into evidence; the jury was improperly instructed as to the duty of the driver of the vehicle, in which the plaintiff was a passenger, when the driver was no longer a party to the action; and that the trial court improperly excluded the rebuttal testimony of Bobette Connett. We find that no reversible error occurred and affirm the decision below.

The accident in question happened on August 28, 1984, when Rebecca Vickers turned the truck she was driving onto Richland Township Roadway 425 North (Roadway 425N) in rural Lacón, Illinois. As Rebecca turned onto the gravel roadway, she lost control of the truck and the truck rolled over. The plaintiff’s theory of the case is that the condition of Roadway 425N was a proximate cause of the accident since Richland Township had allegedly dumped 56 tons of gravel onto the roadway without grading the roadway. The plaintiff presented five witnesses who testified as to the condition of the gravel upon Roadway 425N. Rebecca Vickers testified that as she turned the corner onto Roadway 425N she could not steer the truck because the gravel was pulling her. Ted Vickers testified that the gravel was fluffy, heavy, uneven and thick. Ronald Danhof, the plaintiff’s father, went to the accident scene in the early morning hours on August 29, 1984, and observed freshly graded ditches as well as new, thick, wavy gravel. Carol Vickers, Ted’s mother, testified that she drove on Roadway 425N on the day of the accident and that the gravel was heavy, thick, and rutted. James Vickers, Ted’s father, also traveled on Roadway 425N prior to the accident and described the roadway as being great amounts of gravel just dumped in piles with ruts. James Vickers further testified that the roadway had been graded two or three days before the accident.

The defendant presented three witnesses who testified regarding the condition of Roadway 425N on August 28, 1984. James Wiegand, the Marshall County deputy who responded to the accident, considered the roadway to be in good condition and stated the roadway appeared to have fresh gravel on it and to have been recently graded. Amos Tomason, a nearby resident who heard the noise of the accident and went to the scene, testified that the roadway was “fairly even, same as always” and that he observed no significant humps or lumps of gravel. Charles Dalrymple, an emergency medical technician with the ambulance that responded to the scene, testified that he did not experience any difficulty with the ambulance on the gravel road and that the road appeared fairly even with no big piles, humps or waves of gravel.

Richland Township road commissioner Paul Fitschen testified that two township trucks had hauled 56 tons of gravel on August 28, 1984, but did not state where the gravel was dumped. Fitschen further stated that the township’s sole road grader was not operated on August 28, 1984. Robert Lippman, a civil engineer who testified as the plaintiff’s expert witness, testified that if the township piled up wavy gravel and left it overnight, a “loose gravel” sign should have been posted to warn motorists. Lippman further admitted, however, that his opinion was made without the benefit of observations made by the investigating police officer, the neighbors, or ambulance personnel which Lippman had requested from plaintiff’s attorney, Jay Janssen. Lippman stated that if the investigating police officer, the neighbors, and ambulance personnel indicated that they had driven on the roadway without running into any problems and the roadway contained no waves, bumps, or humps of gravel, then it would be his opinion that no advance warning sign was necessary.

On the last day of trial, after both parties had rested their case, the plaintiff attempted to call Bobette Connett as a rebuttal witness, claiming that she was a disinterested person who could not be found during the plaintiff’s case in chief and that she could testify that the gravel road was a “mess,” with gravel 10 inches deep. The defendant objected on the grounds that there was not sufficient disclosure of the witness’ location in the plaintiff’s answers to interrogatories and that the testimony did not constitute rebuttal testimony. The trial court subsequently excluded Bobette Connett as a rebuttal witness. Thereafter, the plaintiff elicited testimony from Bobette Con-nett in the form of an offer of proof in order to attempt to change the trial court’s previous ruling. Following Connett’s testimony, the trial court rejected the plaintiff’s offer of proof, and the evidence was closed.

After closing arguments, the jury was given its instructions and began its deliberations. During deliberations, it was discovered that the jury utilized a two-volume Webster dictionary which was not admitted into evidence. The trial court subsequently held an evidentiary hearing to inquire into the presence and use of materials taken into the jury room during deliberations. The jury foreman, Donald Stedman, testified that he looked up the word “proximate” in the dictionary and read it to the jury. The remaining jury members testified that they recalled a dictionary being present but their memories varied as to what words were looked up. The jurors stated that they followed the trial court’s jury instructions and that the dictionary definition of “proximate” did not affect the verdict. Following the evidentiary hearing, the trial court found that the jury’s verdict was amply supported by the evidence and that the jury verdict was not tainted by the use of the dictionary.

On appeal, the plaintiff first argues that the trial court committed reversible error in finding that it was harmless error for the jury to consult a dictionary which was not admitted into evidence to define proximate cause. We agree with the trial court that the plaintiff here was not so substantially prejudiced by the presence of the dictionary as to require a reversal. First, it is important to point out that the trial court conducted a full evidentiary hearing following the trial to determine what effect, if any, the dictionary had upon the jury’s verdict. This evidentiary hearing was in accordance with Loucks v. Pierce (1950), 341 Ill. App. 253, wherein a dictionary definition not admitted into evidence was present in the jury room. The trial court in Loucks, without conducting an evidentiary hearing, found that the presence of the dictionary definition, among other irregularities, necessitated granting a motion for a new trial. The appellate court in Loucks reversed and remanded the case for an evidentiary hearing to determine if the presence of the dictionary, among other irregularities in the jury’s deliberations, warranted a new trial. Thus, in the present action, the trial court followed the proper procedure in first conducting an evidentiary hearing before granting a new trial.

Additionally, it is well settled that not every instance in which extraneous or unauthorized information reaches the jury results in error so prejudicial to require reversal. (People v. Holmes (1978), 69 Ill. 2d 507.) Here, the definition of “proximate” in the dictionary did not contradict, nullify, or negate the trial court’s jury instruction on proximate cause. (See Gertz v. Bass (1965), 59 Ill. App. 2d 180.) The Webster dictionary defined proximate as “next,” while the jury instruction on proximate cause provided as follows:

“When I use the expression ‘proximate cause,’ I mean a cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.”

At the evidentiary hearing, the jurors stated they followed the trial court’s jury instructions and that the dictionary definition of “proximate” did not affect their verdict. Under these circumstances, we agree with the trial court that the use of the dictionary by the jury was, at most, harmless, nonprejudicial error.

The plaintiff next argues that it was reversible error for the trial court to give jury instruction number 26, which provided as follows:

“It is the duty of every driver of a vehicle using a public highway to exercise ordinary care at all times to avoid placing himself or others in danger and to exercise ordinary care at all times to avoid a collision.”

The plaintiff claims that this instruction was erroneous since the defendant driver had previously entered into a good-faith settlement and was no longer a party to this cause of action. We find no merit to the plaintiff’s contention. It is well established that a particular jury instruction given by the trial court is justified if it is supported by some evidence in the record. (Ralston v. Plogger (1985), 132 Ill. App. 3d 90.) The central issue in this dispute is whether the conduct of the 13-year-old driver was the sole proximate cause of this accident or whether other proximate causes produced the plaintiff’s injuries. Jury instruction number 26 is an accurate statement of the law and deals directly with the crux of this controversy. Consequently, the trial court did not err in submitting instruction number 26 to the jury.

Finally, the plaintiff maintains that the trial court committed reversible error in excluding the rebuttal testimony of Bobette Connett. The applicable rule is that the allowance of rebuttal evidence lies within the discretion of the trial court, and the trial court’s ruling will not be set aside absent an abuse of discretion. (Henderson v. Hudson (1984), 121 Ill. App. 3d 780.) In the instant case, the trial judge heard Mrs. Connett’s testimony through an offer of proof and then determined to exclude her testimony. We cannot find that the trial court abused its discretion since Mrs. Connett’s testimony regarding the condition of the gravel roadway was merely cumulative of the testimony presented by the plaintiff’s witnesses and would not be reasonably expected to change the jury verdict.

For all the foregoing reasons, we affirm the decision of the trial court.

Affirmed.

BARRY and SCOTT, JJ., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE PETERSON, Defendant-Appellant.
    First District (1st Division)
    No. 1—85—2487
    Opinion filed March 26, 1990.
    Rehearing denied September 6, 1990.
    Modified opinion filed September 17, 1990.

      Michael J. Pelletier and Debra R. Salinger, both of State Appellate Defender’s Office, of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Jeffrey Newman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, the defendant, Eddie Peterson, was convicted of the murder of Ernest Hardaway and was sentenced to 25 years’ imprisonment. The defendant then appealed his conviction and sentence to this court. This court affirms.

At the defendant’s trial, the State presented Douglas Matthews as its first witness. Matthews testified that on September 22, 1983, he was arrested along with the defendant, Ernest Hardaway and David Clay, for the armed robbery of a gas station in St. Johns, Indiana. Matthews also said that he was at the defendant’s house on October 24, 1983, but could not recall the conversation that he had with the defendant. When Matthews continued to claim that he could not recall his October 24 conversation with the defendant, the State and defense counsel agreed to read Matthews’ grand jury testimony from October 28, 1983, into the record.

Matthews testified before the grand jury that on October 24, 1983, he was at the defendant’s house. The defendant told Matthews that Hardaway had threatened him and his family. Hardaway had asked the defendant to kill the gas station attendant from the Indiana robbery, along with David Clay, who had agreed to testify for the State, so that there would be no eyewitnesses to the robbery, but the defendant had refused to do so. The defendant also told Matthews that Hardaway had been in his home and had pulled a gun on him, but left without harming him because the defendant’s sister was home. Matthews testified that the defendant said that if Hardaway’s threats continued, he would have to put Hardaway away eventually. Matthews explained that the defendant meant he would have to kill Hardaway. Matthews claimed that the defendant had called his attorney and told the attorney about Hardaway’s threats. The attorney told the defendant he would look into the situation, but the defendant never heard back from him.

Matthews then told the grand jury that on October 26, 1983, the defendant telephoned him and told him to come over. The defendant sounded nervous and, when Matthews arrived at the defendant’s house, the defendant told him that he had just killed Hardaway. The defendant explained that Hardaway had telephoned him that evening and asked the defendant to pick him up. Hardaway told the defendant that he wanted to go to Altgeld Gardens, a housing project, to steal money from some “dope” houses for his next court date. As the men were walking around Altgeld Gardens, Hardaway turned around and looked at the defendant. Hardaway “had his gun out, *** away from his body,” so the defendant fired his .45 caliber automatic at Hardaway several times.

On cross-examination, defense counsel asked Matthews if he had ever seen Hardaway pull a gun on the defendant before. In response, Matthews said that on the day of the gas station robbery, Hardaway pulled his gun out when the defendant was driving and laid the gun in his lap, pointed toward the defendant.

Georgia Buglass, an assistant State’s Attorney, was the State’s next witness. Buglass said that on October 27, 1983, she was assigned to the felony review unit of the State’s Attorney’s office and was called to the violent crimes division of the Chicago police department. At the police department, Buglass met with the defendant and gave him his Miranda warnings. After the defendant received his Miranda warnings, he told Buglass that he wanted to talk to her about Hardaway’s death. Buglass said that she wrote down the defendant’s statement and, when he was finished talking, read it back to him. After the defendant made some changes on the statement, he signed it.

In his statement, the defendant said that on October 26, 1983, he and Hardaway went to Altgeld Gardens to commit an armed robbery because they both needed money. Both men carried guns in their jacket pockets. The defendant followed Hardaway as they were walking around an apartment building. As they were walking, the defendant saw Hardaway take his gun out. The defendant said, “[w]hen [Hardaway] took his gun out, I could see the shadow of his gun, and it was point [sic] in the direction that I was coming, because I could see the shadow of him and the gun before I walked around the corner of the budding.” The defendant told Buglass that he then pulled his gun out, pushed Hardaway’s arm to the side so that Hardaway’s gun was not pointed at him, and then fired several shots at Hardaway. Next, the defendant ran to his car and drove off, stopping so that he could throw his gun into the Calumet River. The defendant said that Hardaway did not say anything to him either before or after he saw the shadow of Hardaway’s gun. Finally, Buglass testified that the defendant never said that Hardaway had threatened him or had pointed a gun at him.

Hardaway’s girlfriend, Pamela Reed, testified next. Reed said that on October 26, 1983, around 9 p.m., she was at home with Hardaway when the defendant telephoned and asked to speak with Hardaway. When Hardaway hung up the telephone, he told Reed that he and the defendant were going to go to Altgeld Gardens “to stick up a coke house.” Hardaway then left with the defendant, and Reed never saw him alive again.

Officer Michael McDermott testified and said that on October 26, 1983, he received a report that a man had been shot in Altgeld Gardens. McDermott found a .22 caliber revolver near Hardaway’s body, as well as gun casings from a .45 caliber automatic. McDermott learned that the other officers on the scene had handled the .22, so he also inspected it. McDermott observed five live rounds in the .22 and concluded, based on his inspection of the weapon, that it had not been fired because there was no gunshot residue around the gun barrel and there was no scent of gunpowder on the gun.

Albert Wolf, a detective with the Chicago police department, also testified. Wolf stated that he interviewed the defendant on October 27, 1983. Wolf confronted the defendant with some inconsistencies in his story, specifically, that he had told another officer he had not seen Hardaway for two months and that he was at home at the time of Hardaway’s murder. The defendant then admitted to Wolf that he shot Hardaway. The defendant told Wolf that Hardaway had telephoned him on October 26 and asked him for a ride to Altgeld Gardens because he had to pick up a package. Around 9 p.m., the defendant picked Hardaway up and drove him to Altgeld Gardens. When they arrived at Altgeld Gardens, Hardaway got out of the car. The defendant waited in the car for approximately 10 minutes. Hardaway then came back to the car and told the defendant to come with him. The defendant got out of the car and followed Hardaway. The defendant told Wolf that Hardaway had his hand in his pocket and, after they had walked a short distance, Hardaway stopped, turned and pulled his hand up. The defendant claimed that he knew Hardaway had a gun and knew what Hardaway was going to do. When Hardaway’s gun got caught in his jacket, the defendant pulled out his .45 automatic and shot at Hardaway until his gun was empty. The defendant then ran back to his car and drove away. On his way home, the defendant stopped and threw his gun into the Calumet River.

Wolf next testified that the defendant never said that Hardaway had threatened him. The defendant also never mentioned seeing a gun or a shadow of a gun on Hardaway. On cross-examination, Wolf said that the defendant claimed he had shot Hardaway in self-defense. Wolf further explained that even though the defendant never mentioned that he had seen a gun on Hardaway, the defendant did tell Wolf that he knew Hardaway had a gun.

Following Wolf’s testimony, the State and the defense stipulated that five expended .45 caliber automatic bullets and one metal fragment were recovered from Hardaway’s body. The parties also stipulated that when the defendant was picked up for questioning on October 27, 1983, he told police officer Dennis McGuire that he had not seen Hardaway for two months and, on the night of the murder, that he had stayed home watching television with “Tony” for the entire evening. Finally, the parties stipulated to the coroner’s report which showed, among its findings, that Hardaway had suffered a bullet wound to the right lower back and to the back of the neck. The State rested its case following the stipulations. The defense then moved for a directed finding of not guilty, which the trial court denied. The defense then also rested.

' The trial court, in finding the defendant guilty, stated that even though some evidence of self-defense had been raised, the evidence was insufficient to create a reasonable doubt when considered in light of the other facts and circumstances of the case. The court noted that the defendant gave four different statements concerning what had happened, and all the statements were inconsistent with one another, as well as with the other evidence in the case. Further, none of the statements mentioned any prior threats by Hardaway. The court stated that the firing of five bullets was inconsistent with a claim of self-defense. In addition, the court found the fact that two of the bullets entered in the back of the neck and the lower back to be inconsistent with self-defense.

Next, the court denied the defendant’s post-trial motions. In sentencing the defendant, the court said that it was appropriate for it to take into account the pending armed robbery charges in Indiana, even though there had been no finding on those charges at the time. The State requested a sentence of 35 years. The court, however, sentenced the defendant to 25 years’ imprisonment.

On appeal, the defendant first contends that the State failed to rebut his claim that he killed Hardaway in self-defense. First, the defendant argues that this court must disregard his statement to Officer McGuire that he had not seen Hardaway for two months and that he was home on the night of Hardaway’s murder because that statement was made when the defendant was afraid of admitting what he had done. Further, the defendant contends that his claim that he had acted in self-defense was corroborated, because a gun was found next to Hardaway’s body which was not the murder weapon. The defendant then alleges that he reasonably believed that his life was in danger when he shot Hardaway, because Hardaway had previously threatened him.

In response to the trial court’s findings, the defendant argues: the number of shots fired does not rebut his self-defense claim because he was firing an automatic weapon; the bullet wounds to Hardaway’s back and the back of his neck do not prove that the defendant shot Hardaway as he was walking away; the defendant’s flight from the crime scene does not establish his guilt since he told Matthews about the crime when he arrived home; the fact that the defendant picked Hardaway up at home does not disprove self-defense because the defendant may have picked Hardaway up out of fear of what Hardaway would do if he refused; the three statements that the defendant gave concerning the shooting were not inconsistent because they all mentioned that Hardaway had a gun; and the fact that the defendant did not state that he was afraid of Hardaway does not negate his self-defense claim because he was not required to verbalize his fear.

The State contends that the evidence clearly established the defendant’s guilt beyond a reasonable doubt. The State maintains that the defendant was entitled to use deadly force only if he reasonably believed that Hardaway would kill or seriously injure him, and the trial court’s finding on the issue of self-defense should not be reversed unless the State’s evidence was so improbable or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt. In support of its argument, the State notes that: several days before the killing, the defendant told Matthews that he would kill Hardaway if Hardaway continued to threaten him; the defendant called Hardaway and picked him up at home so they could commit an armed robbery of a “dope” house; the defendant shot five bullets, two of which entered the back of Hardaway’s neck and his lower back; the defendant ran from the crime scene and disposed of his weapon; and the defendant gave four different accounts of the events on the night of the murder. The State also contends that none of the elements justifying the use of deadly force were present in this case because there was no evidence that the defendant was in danger of imminent harm, there was no evidence that Hardaway was the aggressor here and there was no evidence that the defendant reasonably believed that the use of force was necessary to avert the danger against him.

The Illinois Criminal Code of 1961 provides that “[a] person is justified in the use of force against another *** which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.” (Ill. Rev. Stat. 1987, ch. 38, par. 7—1.) If a defendant raises a defense of self-defense, the State then has the burden of proving, beyond a reasonable doubt, that the defendant’s use of force was not justified. (People v. Price (1987), 158 Ill. App. 3d 921, 926, 511 N.E.2d 958, 961; People v. Lenzi (1976), 41 Ill. App. 3d 825, 826, 355 N.E.2d 153, 155.) Whether a defendant’s use of force was justified is a question of fact for the trier of fact to decide; therefore, the trial court’s verdict should not be set aside unless the evidence presented by the State was so improbable, impossible or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt. (Price, 158 Ill. App. 3d at 926, 511 N.E.2d at 961; People v. Cox (1984), 121 Ill. App. 3d 118, 123, 459 N.E.2d 269, 272; People v. Martinez (1977), 49 Ill. App. 3d 345, 348, 364 N.E.2d 346, 349.) Further, a trier of fact need not believe the defendant’s version of events, even if it is the only version, but instead “may consider other facts and circumstances in the record which tend to contradict defendant’s story or at least raise serious questions about its probability.” Price, 158 Ill. App. 3d at 926-27, 511 N.E.2d at 961.

Although some evidence was raised in support of the defendant’s claim that he acted in self-defense, this court finds that the State proved beyond a reasonable doubt that the defendant’s use of force was not justified. In order to justify the use of deadly force, the evidence must show that unlawful force was threatened against a defendant, he believed the danger of harm was imminent, he was not the aggressor, force was necessary to avert the danger threatened against him, and the amount of force used was necessary. (Lenzi, 41 Ill. App. 3d at 834-35, 355 N.E.2d at 162; People v. Brumbeloe (1968), 97 Ill. App. 2d 370, 377, 240 N.E.2d 150, 154.) The evidence presented by the State proved beyond a reasonable doubt that none of the foregoing factors were present in this case.

The defendant gave four contradictory accounts of his activities on the night of Hardaway’s murder. The very fact that the defendant gave contradictory accounts detracts from his credibility. (Price, 158 Ill. App. 3d at 927, 511 N.E.2d at 962.) Further, none of the defendant’s stories established that Hardaway had threatened him with imminent harm or that Hardaway was the aggressor. In fact, when Hardaway allegedly pulled his gun out, he never said anything to the defendant, and it was not clear whether Hardaway actually aimed his gun at the defendant. The only threats that Hardaway allegedly made to the defendant had occurred several days earlier and, despite the threats, the defendant was left unharmed. The fact that Hardaway was holding a gun does not, in itself, prove that Hardaway was the aggressor, since Hardaway was at Altgeld Gardens to commit an armed robbery. Further, the defendant willingly picked Hardaway up at home so they could commit another armed robbery. Based on a review of the record in this case, this court cannot conclude that the evidence was so improbable, impossible or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt.

The defendant next contends that this court should reduce the degree of his crime to voluntary manslaughter and remand for resentencing. The defendant argues that even if this court finds his belief that he was acting in self-defense to be unreasonable, this court should find him guilty only of voluntary manslaughter because he subjectively believed that his use of force was justified. In response, the State argues that the defendant’s conviction for murder should stand. The State contends that it was unnecessary for the trial court to address the reasonability of the defendant’s belief that he was acting in self-defense since the trial court found that the defendant did not believe that Hardaway would kill or seriously injure him.

A voluntary manslaughter conviction is proper if the trier of fact concludes that the defendant actually believed that force was necessary to prevent imminent death or great bodily harm, even though that belief was unreasonable. (Price, 158 Ill. App. 3d at 927-28, 511 N.E.2d at 962; see also People v. O’Neal (1984), 104 Ill. 2d 399, 405-06, 472 N.E.2d 441, 443; People v. Johnson (1972), 4 Ill. App. 3d 249, 251-52, 280 N.E.2d 764, 766; Brumbeloe, 97 Ill. App. 2d at 374, 240 N.E.2d at 153.) If, however, the trier of fact concludes that a defendant had no such belief, the defendant should be found guilty of murder. (Price, 158 Ill. App. 3d at 928, 511 N.E.2d at 962.) It is in the province of the trier of fact to assess the credibility of the witnesses and determine the weight to be given their testimony. Price, 158 Ill. App. 3d at 927, 511 N.E.2d at 962.

The trial court in the present case found the defendant guilty of murder, concluding that the defendant did not, even subjectively and unreasonably, believe that he was justified in killing Hardaway. The record in this case supports the trial court’s conclusion that the defendant did not believe that Hardaway was threatening him with imminent death or great bodily harm. Accordingly, this court will not reduce the degree of the offense on appeal.

In his last issue on appeal, the defendant argues that his sentence should be reduced because the trial court impermissibly considered unreliable information at sentencing, namely, that the defendant had armed robbery charges pending against him in Indiana. The defendant claims that this information was improperly considered by the court because the court did not know the facts underlying the Indiana charges. According to the defendant, since the trial court improperly relied on this information in sentencing him, his sentence should be reduced.

The State, on the other hand, alleges that the trial court properly sentenced the defendant to 25 years’ imprisonment. The State maintains that the trial court considered the Indiana robbery as a motive for the Hardaway murder and as part of the transaction leading to murder. The State then notes that a trial court’s sentence should not be disturbed absent an abuse of discretion. Because the defendant’s sentence here was within the minimum and maximum sentences for murder, the State contends that the trial court did not abuse its discretion in sentencing the defendant.

The imposition of a sentence is a matter of judicial discretion and, absent an abuse of that discretion, the trial court’s sentence may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883; People v. Martin (1983), 112 Ill. App. 3d 486, 502, 445 N.E.2d 795, 808; see also People v. La Pointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344, 348.) The trial court is in a better position to determine the proper punishment to be imposed based upon the particular facts and circumstances of the case. Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884; Martin, 112 Ill. App. 3d at 502, 445 N.E.2d at 808.

Here, the defendant claims that the trial court did abuse its discretion in sentencing him because it considered the pending robbery charges. Although it is true that bare arrests and pending charges may not be used in aggravation of a sentence (People v. Wallace (1986), 145 Ill. App. 3d 247, 255, 495 N.E.2d 665, 670; People v. Shumate (1981), 94 Ill. App. 3d 478, 488, 419 N.E.2d 36, 44; People v. Perry (1976), 38 Ill. App. 3d 81, 85, 347 N.E.2d 340, 344), this court has held that merely because a trial court has knowledge of other arrests before imposing sentence does not amount to reversible error, because the trial court is presumed to have recognized and disregarded incompetent evidence unless the record reveals the contrary (Shumate, 94 Ill. App. 3d at 488, 419 N.E.2d at 44). Moreover, the trial court, in imposing sentence, is not limited in its consideration to information which would be admissible during trial, but may look to the facts of the crime and other facts which might mitigate or aggravate the offense. People v. Adkins (1968), 41 Ill. 2d 297, 300-01, 242 N.E.2d 258, 260.

While there is evidence in the record that the trial judge mentioned the pending Indiana charges during the sentencing hearing, we do not construe those comments to mean that he considered the pending case in Indiana in aggravation. Rather, as noted by the State, we construe his comment as considering the evidence that was adduced at trial, which prominently included the facts regarding the Indiana case. He considered the Indiana armed robbery as motive and as part of the entire chain of events leading to Hardaway’s murder. Further, since the minimum sentence in this case was 20 years’ and the maximum was 60 years’ imprisonment (see Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(1)), this court cannot conclude that the defendant’s sentence of 25 years was an abuse of discretion.

Accordingly, for all of the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. Furthermore, pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, and People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319, we grant the State’s request that the defendant be assessed $75 as costs for the State’s defending this appeal and incorporate it as part of our judgment.

Judgment affirmed.

O’CONNOR and MANNING, JJ., concur.