author: JUSTICE CHAPMAN PRESIDING JUSTICE GOLDENHERSH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. MARVIN READ, Respondent-Appellant.
    Fifth District
    No. 5—90—0650
    Opinion filed May 7, 1992.
    Rehearing denied June 16, 1992.
    GOLDENHERSH, P.J., dissenting.
    Penelope S. Karnes and Jeff Plesko, both of Guardianship & Advocacy Commission, of Carbondale, for appellant.
    H. Wesley Wilkins, State’s Attorney, of Jonesboro (Kenneth R. Boyle, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Marvin Read appeals from the decision of the trial court ordering his admission to a facility for the developmentally disabled.

Marvin Read was admitted to Choate Mental Health and Developmental Center (Choate Center) on August 24, 1990, pursuant to a petition for judicial admission. (Ill. Rev. Stat. 1989, ch. 91V2, par. 4 — 400 et seq.) The petition, cause No. 89 — MH—135, alleged that Read was reasonably expected to inflict serious physical harm upon himself or others in the near future. On August 30, 1990, the circuit court dismissed this petition because Read had not been examined by a clinical psychologist or physician within 24 hours pending admission as required by section 4 — 402 of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1989, ch. 911/2, par. 4 — 402). On that same day a second petition for judicial admission was executed against Read by Kent Price. It was filed with the court on August 31, 1990. A hearing on the second petition, cause No. 90 — MH—224, was held on September 6,1990.

At the hearing Read’s attorney informed the court that following the court’s order dismissing cause No. 89 — MH—135, Read had not been discharged from Choate Center. He asked the court to order Read discharged and to dismiss cause No. 90 — MH—224. The record contains a “Notice of Change in Status” filed August 31, 1990, indicating that on August 30, 1990, Read was discharged and released to himself. The State argued that Read was in fact discharged on August 30, but that he did not physically leave the facility because the second petition for judicial admission had been filed. The State asserted that upon execution of the second petition Read was subject to emergency admission (Ill. Rev. Stat. 1989, ch. 911/2, par. 4 — 401) notwithstanding the fact that he had never physically left the Choate Center.

The circuit court denied Read’s motion to dismiss the second petition. The hearing proceeded, and after the testimony of Dr. Donaldson, the circuit court found that the State had established by clear and convincing evidence that Read was subject to judicial admission and ordered him to remain at Choate Center. Read appeals.

Read argues that because he was not physically released from the Choate Center after cause No. 89 — MH—135 was dismissed, the court’s order for judicial admission in cause No. 90 — MH—224 is void. Read directs our attention to the recent case of People v. Valentine (1990), 201 Ill. App. 3d 10, 558 N.E.2d 807, which involved a respondent, Georgia Valentine, who was involuntarily admitted to a mental health facility. Valentine had not been examined by a psychiatrist within 24 hours of her admission as required by the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1987, ch. 911/2, par. 3 — 610), but the trial court refused to dismiss the petition for involuntary admission. The appellate court reversed the trial court and ruled that “[a]ny noncompliance with the statutory [sic] prescribed involuntary commitment procedures renders the judgment entered in such a cause erroneous and of no effect.” 201 Ill. App. 3d at 13-14, 558 N.E.2d at 810.

Read contends that if the failure to release a respondent pursuant to a statutorily mandated release provision deprives the trial court of jurisdiction (Valentine, 201 Ill. App. 3d 10, 558 N.E.2d 807), surely the failure to release Read pursuant to another statutorily mandated release provision deprived Choate Center of the authority to detain Read in order to execute a second petition and certificate. Read is correct in arguing that Choate Center was without authority to detain him under the first petition for admission. There is no dispute that the trial court proceeded properly in dismissing cause No. 89 — MH—135. The trial court’s dismissal of the first petition in the instant case is consistent with Valentine. Unlike Valentine, however, in the case at bar a second petition was filed after it was discovered that the proceeding on the initial petition for commitment was invalid.

Read argues that the trial court was without jurisdiction to act on the second petition where the mandate of the initial petition was not carried out. He cites the definition of “discharge” as provided in the Mental Health and Developmental Disabilities Code:

“ ‘Discharge’ means the full release of any person admitted or otherwise detained under this Act from treatment, habilitation, or care and custody.” (Ill. Rev. Stat. 1989, ch. 911/2, par. 1 — 109.)

No other statutory authority is cited in support of his argument that the trial court lacked jurisdiction to proceed on the second petition where, after Read’s “release to himself,” he did not physically leave Choate Center.

There is nothing in the record to indicate that there was a time lag between Choate Center’s receipt of the discharge order and the execution of the second petition. The State contends that with the second petition executed, requiring the State to see that Read physically left the facility would serve no purpose because defendant would have been immediately readmitted. The State cites In re Splett (1991), 143 Ill. 2d 225, 572 N.E.2d 883, in support of its position. Richard Splett was involuntarily admitted to a mental health facility. The appellate court reversed his involuntary admission order because the record failed to show that he had received formal notice of the proceedings. The supreme court affirmed the appellate court’s judgment on the ground that Splett was not eligible for involuntary admission under the Code, but it specifically rejected the appellate court’s finding that absent formal proof of notice of the commitment proceedings an involuntary admission order must be declared invalid. The court held that “proof of formal notice of the proceeding may be excused when circumstances demonstrate that actual notice is sufficient.” Splett, 143 Ill. 2d at 236, 572 N.E.2d at 888.

In this case the actual physical release of Read from the facility was not necessary in order to comply with the statutory definition of a “discharge.” The “Notice of Change in Status” indicates that Read was in fact discharged and released, albeit to himself, on August 30, 1990, the same day the court ordered it. There is nothing in the record to indicate the exact time of day that the petition in cause No. 90 — MH— 224 was filed. Furthermore, there is nothing in the record showing that Read tried to leave the facility or that he wanted to leave or that he was prevented from leaving. Under the circumstances herein we do not find that the failure to physically release Read from Choate Center precluded the State from subsequently filing an involuntary commitment petition. Based on the facts of this case, requiring Read to physically leave Choate Center before filing the second petition would require that we construe the statute as requiring the performance of an empty formality when the legislative intent has been otherwise achieved. See Splett, 143 Ill. 2d at 232, 572 N.E.2d at 886.

The facts in this case are similar to those in In re Shaw (1987), 153 Ill. App. 3d 939, 506 N.E.2d 456. In that case a petition for involuntary admission was dismissed for failure to comply with the five-day time limit found in section 3 — 403 of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1989, ch. 91 1/2, par. 3 — 403), and the respondent was ordered discharged. The respondent, however, was not discharged and a second petition was filed. The appellate court noted that the record was unclear as to whether the second petition was filed the same day respondent was ordered discharged or the following day. At a hearing on the second petition, the court found the allegations had been proved by clear and convincing evidence and found the respondent subject to involuntary admission. On appeal, the respondent argued that he was entitled to immediate discharge despite the fact that the second petition was proper in all respects. He further argued that any proceedings after the court’s order dismissing the first petition were void and without effect. In affirming, the appellate court stated:

“[T]he mere failure to discharge, whether or not occasioned by the mental health facility’s own omission in failing to follow through on a court order, does not necessarily insulate the respondent from subsequent, otherwise-valid involuntary proceedings. In sum, respondent may be possessed of other legal avenues for redress of a wrong, but this is presently not the appropriate forum to decide such matters.” Shaw, 153 Ill. App. 3d at 945, 506 N.E.2d at 460.

Read argues that Shaw was wrongly decided. We disagree. Read contends that in accordance with the holding of In re Smith (1986), 145 Ill. App. 3d 1002, 496 N.E.2d 497, it is mandatory that he be discharged. Smith, a patient at a mental health facility, appealed from two orders, the first of which changed her status from a voluntary to an involuntary patient and the second of which required her continued hospitalization. The appellate court held that the petition for continued hospitalization, which was filed one week after the period of initial involuntary hospitalization expired, was not timely; thus, the order requiring her continued hospitalization was invalid.

The facts in Smith are dissimilar to those in the instant case; in the case at bar, there is no allegation that the second petition was untimely filed. The order rendering Read a subject of judicial admission at Choate Center is based on a timely filed petition. Read in fact does not contest the validity of the second petition except with regard to the court’s alleged lack of authority to act on the petition. Finally, in Smith, although the court recognized that the respondent was entitled to be discharged, the court pointed out that the respondent could be subject to further restriction at the facility in the event appropriate involuntary admission proceedings were commenced.

As in Smith, the trial court in the case at bar properly ordered Read discharged once it was determined that the statutory requirements for judicial admission had not been complied with. The subsequent filing of a valid petition for judicial admission was not precluded because of the disposition of the first petition. We conclude that there is nothing in the Mental Health and Developmental Disabilities Code which indicates that the relief Read requests is available. “We cannot inject remedies not found in the statute.” (In re Williams (1987), 151 Ill. App. 3d 911, 918, 503 N.E.2d 816, 821.) The failure of Choate Center to physically discharge Read does not mean that the subsequent petition is void or ineffective, and the circuit court’s order in cause No. 90 — MH—224 finding the respondent subject to judicial admission was properly entered.

Affirmed.

RARICK, J., concurs.

PRESIDING JUSTICE GOLDENHERSH,

dissenting:

I respectfully dissent.

My colleagues conclude that under the facts of this case an actual physical release of defendant was not necessary to effect a “discharge” since, according to the appropriate documents, defendant was discharged on paper. As authority, In re Splett (1991), 143 Ill. 2d 225, 572 N.E.2d 883, is cited.

Splett, however, is based on a contrary set of facts. In Splett, the supreme court found the failure to give Splett the required statutory notice was harmless since the record showed that Splett had actual notice of the proceedings. The supreme court concluded the legislative intent in fact had been achieved. In the case at bar, however, defendant was given the appropriate document of discharge, yet not discharged in fact; the opposite of the legislative intent resulted in this case. My colleagues note there is nothing in the record indicating defendant tried to leave the facility, wanted to leave, or was prevented from leaving the Choate Center. What this void in the record indicates is that, in reality, there was no discharge, merely an on-paper discharge. Such is not the legislative intent.

While this position might seem hypertechnical, the rationale for strict compliance was eloquently stated by this court in People v. Valentine (1990), 201 Ill. App. 3d 10, 558 N.E.2d 807, in its discussion of the statutory requirement that an involuntarily committed patient be examined within 24 hours:

“The legislature has created a bright line. The State has 24 hours. No doubt, the bright line was created as a prophylactic against deciding these kinds of cases on an ad hoc basis. When we recall that other governments have used involuntary commitment to a mental hospital as a ruse, as a device to silence critics, we feel that this bright line is but one brick in a wall against the evils of tyranny that we, in this country, have erected. One brief glance toward the recent history of Eastern Europe is persuasive of the wisdom of that wall, the wisdom of this rule.
Any noncompliance with the statutory prescribed involuntary commitment procedures renders the judgment entered in such a cause erroneous and of no effect.” 201 Ill. App. 3d at 13-14, 558 N.E.2d at 809-10.

Such should be the result in this case.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANCIS WOLTZ, Defendant-Appellant.
    Fifth District
    No. 5—90—0590
    Opinion filed May 7, 1992.
    Rehearing denied June 16, 1992.
    Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Kathryn Dobrinic, State’s Attorney, of Hillsboro (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant, Francis Woltz, was charged in Montgomery County with one count of aggravated criminal sexual assault. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(b)(1).) Defendant was found guilty by a jury and sentenced to 30 years’ imprisonment in the Department of Corrections. On appeal, defendant contends: (1) he was denied a fair trial by the admission of evidence of another crime; and (2) the trial court considered an improper factor in aggravation at sentencing. We agree with defendant’s first contention and therefore reverse and remand for a new trial.

The information alleged that on September 11, 1989, defendant committed an act of sexual penetration with V.J., who was under 13 years of age, by placing his finger in the vagina of V.J. Prior to trial, defendant moved in limine to prohibit the State from introducing evidence of a separate sexual assault allegedly committed by defendant on another young girl, J.S. After a hearing, the trial court denied defendant’s motion, finding that there was sufficient similarity between the two offenses to allow the introduction of the evidence for the limited purposes of showing absence of mistake and “design or plan.” The court gave a limiting instruction to the jury concerning the other crime’s evidence before J.S.’s testimony and also at the time the jury was instructed before deliberations began.

At trial, V.J. testified that she was 12 years of age. V.J. stated that on September 11, 1989, she had gone horseback riding with her father, L.J., and her brother, J.J. V.J. and her father rode horses while J.J. rode a bicycle. During the ride they stopped at the home of defendant, who was a friend of V.J.’s father, and stayed one to two hours. When V.J.’s family decided to go home, defendant’s son Lee Robinson requested to ride one of the horses. The group left about dusk, with L.J. and Lee Robinson riding horses, and V.J., J.J., defendant, and his two other children riding in defendant’s car. As they proceeded to V.J.’s home, her father’s horse ran through a fence and he was injured. It was then decided that defendant and V.J. would walk the horses home, while the remaining people accompanied defendant’s son William Woltz in driving L.J. to the hospital.

V.J. testified that she and defendant had been walking about 45 minutes when he began walking his horse closer and closer to her and then “grabbed” her. Defendant put his left hand down her pants and between her legs and stuck his fingers “inside” her. V.J. tried to get away and then one of the horses stepped on her foot. After she got her foot loose, she and defendant somehow fell to the ground. V.J. testified that defendant then took his hand out of her pants and put it into her shirt, touching her breast. They got up, and V.J. tried to get on one of the horses, but defendant pulled her down. V.J. was screaming during the incident and defendant told her that if she did not stop, he would take her into a cornfield and “fuck” her. V.J. stopped screaming and defendant unzipped his pants and told her to feel his penis. V.J. again tried to get away, but defendant was still holding her and his right hand was in her pants. She managed to pull his hand out and when she realized she was free from him, she ran to her grandmother’s house. When no one was there, she looked outside to see if defendant was around, and then ran next door to her own home and hid in the closet.

V.J. testified that she did not tell her parents about the incident until “after a while.” She wrote a note to them and left it on a table before going to school. When she returned home from school, her father talked with her about the note and she then wrote a second note concerning the incident. V.J. identified People’s exhibits 1 and 2 as the notes she had written. On cross-examination, V.J. denied telling anyone on the school bus that Frank Stivers had sexually assaulted her.

L.J. testified that in September 1989, his daughter V.J. was 11 years old. L.J.’s testimony regarding the events of September 11, 1989, was substantially similar to V.J.’s up to the time he was taken to the hospital. Approximately two weeks later, V.J. left a note addressed to “Mom and Dad” before she got on the school bus. L.J. stated that when V.J. got home from school that day, he talked to her about the note and, when she was too embarrassed to discuss the matter with him, asked her to write a second note. L.J. turned the notes over to the county investigator and in court identified People’s exhibits 1 and 2 as the notes V.J. had written.

George Wise, the chief investigator for the Montgomery County sheriff’s department, testified that on October 31, 1989, he spoke with defendant about the events of September 11. Defendant denied that he had intentionally done anything of a sexual nature to V.J. Defendant told Wise that V.J. had been crying due to her distress at seeing her father injured and that in putting his arm around her to console her, his hand may have accidentally touched her breast. Wise testified that defendant had given his age as 34.

J.S. testified that in July 1989, she was 14 years old and lived near defendant in Coalton, Illinois. During July 1989, she was at defendant’s home when, as she was going outside, defendant came up behind her and “grabbed” her. J.S. stated that defendant dragged her through the kitchen and into his son’s room where he threw her onto the floor and “raped” her. Although no questions regarding her condition were asked, the record reflects that at the time of defendant’s trial in March 1990, J.S. was “noticeably pregnant.”

Elbert Lee Robinson testified that he was 14 years old and that defendant was his father. Robinson testified that in July 1989, his friend J.S. came to the home he shared with his mother, father and sister and that when he left the house J.S. was in the front room.

Defendant testified that on September 11, 1989, L.J., V.J., and J.J. came to his house on horses and a bicycle about 6:30 p.m. L.J. left to go into town for food and cigarettes and the children remained at defendant’s house. L.J. returned several hours later, and after drinking several beers with defendant, he asked if defendant would help him take the children home. Defendant’s son and L.J. rode the horses, and defendant took V.J. and J.J. in the car along with his daughter and stepson. During the ride, L.J.’s horse bolted, went through a wire gate and then rolled over on L.J. V.J. began to cry and scream “get up” to her father. Defendant put his arm around V.J. to comfort her and told her that everything was going to be all right. Defendant’s stepson drove L.J. to obtain a ride to the hospital from a licensed driver.

Defendant and V.J. walked the horses back to L.J.’s house, the trip taking about 45 minutes. Defendant testified that it had been “misting rain” during the walk, and that V.J. was shaking, cold and wet, so that when they approached the house, V.J. said she was tired and started running. Defendant denied ever putting his hand inside V.J.’s pants, his finger in her vagina, or touching her breast.

Christopher Eller testified that in September 1989, he was riding the school bus with V.J. and heard her tell Michelle Eller that Frank Stivers had molested her.

Defendant argues that the trial court erred in permitting testimony concerning defendant’s sexual intercourse with J.S. because this other crime’s evidence had no probative value and was highly prejudicial. The State responds that the testimony of J.S. was properly admitted to show “absence of mistake, common design or plan and modus operandi,” but, that if any error occurred, it was harmless.

Generally, evidence of other crimes is inadmissible if relevant merely to establish the defendant’s propensity to commit crime. (People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, 823, cert. denied (1983), 464 U.S. 844, 78 L. Ed. 2d 136, 104 S. Ct. 145; People v. Brown (1991), 214 Ill. App. 3d 836, 844, 574 N.E.2d 190, 195.) Evidence of the commission of other crimes is admissible, however, when such evidence is relevant to prove any purpose other than propensity to commit crime, such as intent, motive, identity, absence of mistake, knowledge, common design, scheme, or plan, or modus operandi. (Brown, 214 Ill. App. 3d at 844, 574 N.E.2d at 195; People v. Daniels (1988), 172 Ill. App. 3d 616, 624, 527 N.E.2d 59, 64.) It is within the sound discretion of the trial court to determine whether evidence of other crimes is relevant to a material issue and whether the probative value of such evidence outweighs its prejudicial impact; this determination will be overturned only if there exists a clear abuse of discretion. Brown, 214 Ill. App. 3d at 844-45, 574 N.E.2d at 195.

In the case at bar, the trial court allowed introduction of J.S.’s testimony for the purposes of showing absence of mistake and common design or plan. The State argued that the admission of J.S.’s testimony was necessary to show absence of mistake because defendant had told investigator Wise that if he had touched V.J.’s breast, he had done so accidentally. However, the conduct upon which the aggravated criminal sexual assault charge was based, defendant’s placing his finger in the vagina of V.J., was never claimed to be “accidental” but was totally denied by defendant. Thus, there was no valid reason to admit J.S.’s testimony as proof of absence of mistake. (See People v. Torres (1981), 93 Ill. App. 3d 718, 722-23, 417 N.E.2d 728, 731-32 (reversible error to admit testimony of two boys other than complaining witness that defendant had taken indecent liberties with them where “defense” it purported to rebut was introduced by prosecution’s own witness and defendant did not testify to any innocent construction of his acts).) Further, admitting into evidence separate acts of sexual misconduct with other children at other times and places for the purposes of showing intent, guilty knowledge, accident, or mistake has been rejected as unnecessary because these factors are shown by testimony concerning the act itself. Daniels, 172 Ill. App. 3d at 624, 527 N.E.2d at 64; see also People v. McMillan (1980), 86 Ill. App. 3d 208, 211, 407 N.E.2d 207, 210 (evidence of acts with 15-year-old daughter inadmissible to show defendant’s intent regarding crime charged against 13-year-old daughter).

The second stated purpose for which the trial court admitted J.S.’s testimony was common design. Common design refers to a larger criminal plan of which the crime charged is only a part. (People v. Barbour (1982), 106 Ill. App. 3d 993, 999, 436 N.E.2d 667, 672; People v. Bayer (1987), 160 Ill. App. 3d 218, 221, 513 N.E.2d 457, 459.) Defendant argues, and we agree, that the testimony of J.S. was not properly admitted as evidence of a common design or scheme. There is no evidence to suggest that either offense was part of a larger criminal scheme. Rather, it appears that the court meant that the evidence in question was admissible to prove modus operandi. See Barbour, 106 Ill. App. 3d at 999, 436 N.E.2d at 672 (although often used interchangeably, the concepts “common design” and “modus operandi” are quite distinguishable).

Modus operandi refers to a method of operation or pattern of criminal behavior so distinctive that separate crimes or wrongful conduct is recognized as the work of the same person. (Bayer, 160 Ill. App. 3d at 221, 513 N.E.2d at 459.) In order for evidence to be admissible against a defendant under a theory of modus operandi, there must be a clear connection which creates a logical inference that, if defendant committed the former offense, he also committed the latter offense. (People v. Hall (1989), 186 Ill. App. 3d 123, 127, 541 N.E.2d 1369, 1372.) This inference arises when both crimes share peculiar and distinctive features not shared by most offenses of the same type and which, therefore, earmark the offenses as one person’s handiwork. Hall, 186 Ill. App. 3d at 127, 541 N.E.2d at 1372; see also People v. Phillips (1984), 128 Ill. App. 3d 457, 460, 470 N.E.2d 1137, 1140.

In Phillips, the trial court granted defendant’s motion in limine preventing the State from introducing evidence of a kidnap attempt on a woman in Williamson County during his trial for the kidnapping and sexual assault of a woman in Jackson County. This court upheld the trial court’s decision, finding that the State had not shown factors so unique as to establish modus operandi. Phillips, 128 Ill. App. 3d at 460, 470 N.E.2d at 1139-40.

In Barbour, the defendant was convicted of rape and deviate sexual assault following a trial at which the State introduced evidence of two earlier rapes to show “common design or modus operandi.” In remanding the cause for a new trial, the appellate court found no reason to believe the rapes were evidence of a common scheme and that the State had failed to demonstrate modus operandi despite its citation of numerous similarities among the crimes. Barbour, 106 Ill. App. 3d at 1000, 436 N.E.2d at 672.

In arguing that the offenses involved herein share a modus operandi, the State lists several similarities among the crimes. However, some of the purported similarities are common to many offenses of this type (e.g., both victims were young girls and were acquainted with defendant prior to the attack) and others are merely descriptive of the crime of aggravated criminal sexual assault (e.g., some force was used in both attacks and both victims had their sexual organs penetrated by a part of defendant’s body).

While a showing of modus operandi does not require that the similarities be unique to the offenses being compared (Barbour, 106 Ill. App. 3d at 1000, 436 N.E.2d at 672), we agree with defendant that here, as in Phillips and Barbour, there was no showing of a distinctive pattern of criminal behavior which would earmark the alleged offenses as the work of defendant. In the incident described by J.S., defendant grabbed her, dragged her through his home and into his son’s room where he threw her to the floor and “raped” her, whereas V.J. testified that while walking along a public road with defendant, he grabbed her, put his hand down her pants and his fingers inside her, and after they had fallen down, he fondled her breast and later requested that she touch his penis. Neither the acts nor the circumstances under which they took place show sufficient similarities so as to establish modus operandi. Therefore, where there was no proper purpose for the other crime’s evidence, its admission was an abuse of the trial court’s discretion.

The State argues that where the testimony of V.J. included all the elements of the offense of aggravated criminal sexual assault, any error in allowing the testimony of another crime to be admitted was harmless. However, when the outcome of a trial depends entirely on the credibility of the complainant and the defendant, as here, no error should be permitted to intervene. (People v. Lawler (1991), 142 Ill. 2d 548, 561-62, 568 N.E.2d 895, 901.) Erroneous admission of evidence of other crimes carries a high risk of prejudice and, ordinarily, calls for reversal. (People v. Mason (1991), 219 Ill. App. 3d 76, 80, 578 N.E.2d 1351, 1354.) Therefore, here, we cannot say that the improper admission of J.S.’s testimony was harmless.

Having determined that defendant is entitled to a new trial, we decline comment on the remaining issue raised on appeal. For the foregoing reasons, defendant’s conviction is reversed and the cause is remanded to the circuit court for a new trial.

Reversed and remanded.

RARICK and WELCH, JJ., concur.


author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN BOSHEARS, Defendant-Appellant.
    Fifth District
    No. 5—91—0254
    Opinion filed May 8, 1992.
    Rehearing denied June 16, 1992.

      Alan C. Downen, of McLeansboro, for appellant.

      Bob Roth, State’s Attorney, of Albion (Kenneth R. Boyle, Stephen E. Norris, and Rebecca Sanders, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, John J. Boshears, appeals from an order of supervision entered by the circuit court of Edwards County on April 5, 1991, upon jury verdicts of guilty of driving under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(aX2)), and driving a motor vehicle while the alcohol concentration in his blood or breath was .10% or more. (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a)(1).) Defendant raises four issues on appeal: (1) whether a proper foundation was established to admit the results of the breath test where the defendant was prevented from viewing the visual display of the test results until the test was completed; (2) whether a proper foundation was established to admit the results of the breath test where the breathalyzer operator testified that he was licensed to perform the test but his license was not admitted into evidence; (3) whether the trial court erred in denying defendant a new trial where the arresting police officer and another police officer testified that, based upon their personal observations of the defendant at the time of his arrest, in their opinions defendant’s blood-alcohol content was .10 or above; and (4) whether the trial court erred in excluding defendant’s proffered evidence that an additional charge was filed against defendant after he pleaded not guilty and demanded a jury trial, offered to show the bias or motive of the State. We set forth the facts only as they are necessary to resolve these issues.

On the evening of March 17, 1990, defendant was stopped at a police roadside safety check (roadblock) in the City of Albion. He was then and there charged by citation with the offense of driving under the influence of alcohol in violation of section 11 — 501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a)(2)). He was taken into custody and submitted to a breath test of his blood-alcohol concentration. During the administration of this test and while defendant was blowing into the machine, Illinois State Police Trooper Phil Goodman, who administered the test, covered with a card the visual display of the test results so that defendant could not view the display while the test was in progress. Upon completion of the test, defendant was allowed to view the visual display of the test results, which showed defendant’s blood-alcohol concentration to be 17.

On May 29, 1990, defendant was arraigned. He pleaded not guilty and demanded a jury trial. Subsequent to this, on July 17, 1990, an amended complaint was filed against the defendant charging him with driving a motor vehicle while under the influence of alcohol in violation of section 11 — 501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a)(2)), and operating a motor vehicle with an alcohol concentration in excess of .10% in violation of section 11— 501(aXl) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501(a)(1)). The first count of the amended complaint was identical to the charge contained in the citation. The second count of the amended complaint constituted a new charge.

The cause came on for jury trial on October 23, 1990. Defendant was found guilty by the jury on both counts. On April 5, 1991, the trial court entered an order for supervision placing the defendant on supervision for a period of 18 months and ordering him to pay a fine of $750. Defendant filed his notice of appeal that same date.

Defendant’s first argument on appeal is that a proper foundation was not established for admission of the results of the breath test because defendant was not permitted to view the visual display of the test results during administration of the test, but was only allowed to view the visual display of the test results upon completion of the test. Illinois State Police Trooper Phil Goodman, who administered the breath test to defendant, testified that while defendant was actually taking the test, Goodman covered with a card the visual display of the test results so that defendant could not view the display while the test was in progress. Goodman did this because very often when defendants see the results approach the legal limit of .10, they will stop blowing into the machine and will not finish the test. By covering the display, neither the defendant nor Goodman can see the results until the test is completed. This assures an accurate, completed test. When defendant completed the test, he was allowed to view the visual display of the results.

Defendant contends that the test was not performed in accordance with the uniform standards adopted by the Illinois Department of Public Health and was therefore inadmissible. Section 11 — 501.2 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.2) provides that the results of breath tests are admissible in criminal trials for driving trader the influence of alcohol or driving with a blood-alcohol concentration in excess of .10 provided the test is performed according to standards promulgated by the Department of Public Health in consultation with the Department of State Police. Section 510.40 of those standards provides:

“Any breath testing instrument to be approved must automatically display the test results visually to the arrested person and provide for an automatic printed record of the reading of the testing device made immediately prior to the recording of the tested person.” (Illinois Department of Public Health, Standards and Procedures for Testing for Alcohol and/or Other Drugs By Breath, Blood & Urine Analysis, §510.40 (as revised December 1,1988) (hereinafter Standards).)

Section 510.60 of those Standards provides that, “[bjefore a breath analysis, a room-air analysis must be conducted, the results of which must be less than 0.01 reading.” That section also provides that a breath test shall consist of only one breath analysis. Standards, §510.60.

Defendant argues that, because he was not allowed to view the visual display of the test results during the progress of the test, the test was not conducted in accordance with section 510.40 of the Standards, which requires that the instrument visually display the test results to the defendant. Defendant further argues that it is also “evident” that the results of the room-air analysis were not visually displayed to the defendant after the sample was taken because the machine is reset before the breath test is administered and the visual display of the room-air analysis is lost. Because Trooper Goodman had covered the visual display, defendant argues, defendant could not have viewed the result of the room-air analysis. Defendant argues that this also violates section 510.40 of the Standards. Defendant concludes that, because the breath test was not administered in accordance with the Standards, the results were inadmissible and the trial court erred in allowing it into evidence.

We start by addressing defendant’s argument that the Standards were violated because it is “evident” that defendant was not allowed to view the results of the room-air analysis because Trooper Goodman had covered the visual display. We do not find this to be “evident” at all. There is absolutely no evidence in the record to indicate, or from which to infer, that Trooper Goodman covered the visual display of the room-air analysis. Goodman testified that he covered the visual display while defendant was actually taking the test so that defendant would not know if the results were approaching .10 and discontinue the test. There was no reason for Goodman to cover the visual display during the room-air analysis and there is no evidence from which to conclude that he did so. A reviewing court cannot presume the existence of error which is not affirmatively shown of record. (People v. Harrell (1982), 104 Ill. App. 3d 138, 143, 432 N.E.2d 1163, 1167.) All reasonable presumptions are in favor of the action of the trial court, and the burden is on the appellant to overcome such presumptions by affirmatively showing the errors charged. (People v. Henderson (1985), 136 Ill. App. 3d 1041, 1045, 483 N.E.2d 1068, 1071.) Thus, we cannot presume that the visual display of the room-air analysis was concealed from defendant and must resolve the record’s silence as to this point against the defendant. Harrell, 104 Ill. App. 3d at 143, 432 N.E.2d at 1167.

In any event, we find no requirement in the Standards that a defendant be allowed to view the results of the room-air analysis, which is conducted before the actual breath test is administered. We think a plain reading of section 510.40 of the Standards indicates that only the results of the breath test itself need be visually displayed to the defendant. The first sentence of section 510.40(a) provides that, in order to be approved, a breath testing instrument must automatically display the test results and provide for an automatic printed test record. The second sentence of that paragraph provides that each such printed test record must also contain the reading of the room-air analysis made immediately prior to the recording of the tested person. We think that the inclusion of the second sentence in this paragraph makes clear that the first sentence of the paragraph refers only to the actual breath test and not to the room-air analysis. The paragraph clearly makes a distinction between the breath test itself and the room-air analysis. Where the language of a statute is clear on its face, its meaning should be given effect without resort to supplementary principles of statutory construction. (People v. Singleton (1984), 103 Ill. 2d 339, 341, 469 N.E.2d 200, 202.) Thus, section 510.40 requires only that the results of the actual breath test be visually displayed to the defendant.

We turn now to defendant’s contention that the test was not administered in accordance with the Standards because he was not permitted to see the visual display during the progress of his breath test, as well as at its conclusion. Again, we find nothing in the Standards from which to conclude that they require a visual display of the progress of the test. The plain language of section 510.40 requires only that the results of the test be visually displayed to the defendant. A reviewing court should not create new rights not suggested by statutory language and has no right to read into a statute words that are not found there either by express inclusion or by fair implication. (American Ambassador Casualty Co. v. City of Chicago (1990), 205 Ill. App. 3d 879, 884, 563 N.E.2d 882, 886.) The Standards require only that a breath testing instrument automatically display visually to the person being tested the results of the test. Defendant does not argue that the breath testing instrument did not automatically display, or that he was not permitted to view, the results of his breath test. The requirements of the Standards were complied with in this regard, and the trial court did not err in finding that the State had established a proper foundation for admission of the test results in this regard.

Defendant’s second argument on appeal also relates to the admissibility of his breath test results. Defendant argues that a proper foundation was not established for admission of the breath test results because, although Trooper Goodman, who administered the test, testified that he was a licensed operator, the license itself was not admitted into evidence.

Section 11 — 501.2 of the Illinois Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.2) provides that chemical analysis of a person’s breath to determine the concentration of alcohol is admissible in a criminal prosecution for driving under the influence of alcohol or driving a motor vehicle with a blood-alcohol concentration in excess of .10 provided the chemical analysis is conducted in accordance with standards promulgated by the Department of Public Health by an individual possessing a valid permit issued by that Department for this purpose.

At trial, Trooper Goodman testified that at the time he administered the breath test to defendant, he held a current license to operate a breath analysis machine. Defendant objected to this evidence on the basis that the trooper’s testimony was not the best evidence. The trial court overruled defendant’s objection. Later, defendant filed a motion to suppress the results of the breath test for the reason, among others, that the license of the breath testing machine operator had not been admitted into evidence. The court denied the motion to suppress, stating:

“I agree that the operator’s license was not introduced into evidence, but I will not follow the Louisiana case [State v. Batiste (La. 1976), 327 So. 2d 420]. I will accept the fact that the officer testified that he was licensed and there is no evidence to the contrary.”

Defendant cites cases from other jurisdictions in support of his argument that the license itself is the best evidence of the breath testing machine operator’s authority and competence to operate the machine and its admission is required to establish a proper foundation to admit the results of the breath test into evidence. (State v. Caviness (1970), 7 N.C. App. 541, 544-45, 173 S.E.2d 12, 14-15; State v. Batiste (La. 1976), 327 So. 2d 420, 422.) These cases do not constitute binding authority on us, especially in the face of Illinois cases holding to the contrary. (People v. Chandler (1980), 88 Ill. App. 3d 644, 653, 411 N.E.2d 283, 291.) Defendant acknowledges the existence of three Illinois cases which have addressed this issue and reached a conclusion contrary to defendant’s position, but argues that the reasoning of these cases is flawed and should not be followed by this court.

People v. Pele (1988), 177 Ill. App. 3d 737, 532 N.E.2d 552, was an appeal from the denial of the defendant’s petition to rescind the suspension of his driver’s license based upon his arrest for driving under the influence of alcohol. Defendant argued on appeal that the State had failed to prove that the operator of the breathalyzer machine had been licensed as required by statute. The operator, a police officer, testified that he held a valid license, issued by the Department of Health, to operate a breath test machine on the date defendant was arrested and tested. Defendant objected to the operator’s testimony on the basis of the best evidence, or original writing, rule. A copy of the operator’s license was admitted into evidence but the operator’s last name was misspelled on the license. On appeal, defendant argued that, because the best evidence of the operator’s authority to conduct breathalyzer tests was his license, his oral testimony was inadmissible and, because the name of the operator was misspelled on the license, the State had failed to prove that the operator was licensed at the time defendant was tested. The fourth district of our court stated:

“Defendant misunderstands the purpose of the best evidence rule. The best evidence rule applies only when the contents or terms of a writing are in issue and must be established. ***
Here, the issue was not the contents of the license, but whether [the operator] was qualified and authorized to conduct breathalyzer examinations. His qualifications and authority have an existence independent of the writing, even though the license is evidence of the qualifications and authority. Therefore, the best evidence rule does not apply and [the operator’s] testimony was properly admitted.” 177 Ill. App. 3d at 742-43, 532 N.E.2d at 555-56.

In People v. Caruso (1990), 201 Ill. App. 3d 930, 559 N.E.2d 545, defendant appealed from his conviction for driving with a blood-alcohol concentration in excess of .10 arguing, among other things, that the State had failed to establish a proper foundation for admission of the results of his breath test because it had failed to prove that the operator of the breath testing instrument was properly licensed. The second district of our court held:

“Proof of certification, unless there is evidence to show that the certification is not valid, is sufficient. In this case, the officer testified that he had been certified for 16 years and was presently certified when he administered the test. The officer’s testimony is sufficient proof of his certification.” 201 Ill. App. 3d at 940-41, 559 N.E.2d at 552.

Finally, in People v. Keith (1990), 206 Ill. App. 3d 414, 564 N.E.2d 901, the third district of our court adopted the reasoning and holding of Caruso and held that the testimony of an operator of a breath testing instrument that he was properly licensed at the time the test was administered is sufficient to establish a foundation for admission of the breath test results. The court stated, “[t]he State can make this showing by introducing the officer’s license into evidence or, as in Caruso, the officer can testify he was licensed on the day he administered the test.” 206 Ill. App. 3d at 421, 564 N.E.2d at 905.

Defendant urges us not to follow these cases, pointing out that the fifth district has never addressed this issue. Defendant argues that the reasoning of these cases is flawed. Defendant argues that these cases are distinguishable and that they impermissibly shift to defendant the burden of proving that the operator of the breath testing machine was not properly licensed. Defendant also argues that it is evident that the intent of the statute is to require the license itself as evidence for purposes of establishing a proper foundation. Finally, defendant argues that the best evidence rule requires that the license itself be admitted into evidence.

While the Pele, Keith, and Caruso cases are distinguishable in some respects from the case at bar, they are sufficiently similar to be considered as persuasive authority. Further, these cases do not impermissibly shift to the defendant the burden of proving that the operator was not licensed. Instead, they require the State to present some evidence in its case in chief that the operator was properly licensed. This evidence may take the form of testimony of the operator or admission of the license itself. As in every case, the defendant may rebut this evidence by proof that the operator was not properly licensed. However, the initial and ultimate burden of establishing a proper foundation for admission of the breath test results remains on the State.

Furthermore, the best evidence rule or original writing rule does not apply to evidence of the breath testing machine operator’s licensure. The original writing rule states a preference for the production of the original of a writing when the contents of the writing are sought to be proved. (Jones v. Consolidation Coal Co. (1988), 174 Ill. App. 3d 38, 42, 528 N.E.2d 33, 36.) The rule does not apply where a party seeks to prove a fact which has an existence independent of any writing, even though the fact might have been reduced to, or is evidenced by, a writing. (Jones, 174 Ill. App. 3d at 42, 528 N.E.2d at 36.) The written license issued by the Department of Public Health is merely evidence of a fact which has an existence independent of that writing, that is that the individual so licensed has the authority and competence to operate a breath testing machine. It is not the content of the written license itself which is sought to be proved, but the fact evidenced by that license that the individual has authority and competence to operate a breath testing machine. (Pele, 177 Ill. App. 3d at 742-43, 532 N.E.2d at 556.) Thus, the original writing rule does not require admission of the actual written license itself in order to prove that the operator is, in fact, licensed. See People ex rel. Illinois State Dental Society v. Vinci (1976), 35 Ill. App. 3d 474, 478, 342 N.E.2d 206, 209.

Finally, we find nothing in the statute to indicate legislative intent to require admission of the license itself as the only acceptable proof of a proper foundation for admission of breath test results. The statute only requires that the breath test be administered by an individual possessing a valid license. Defendant argues that the definition of “license” contained in section 510.20 of the Standards evidences an intent to require admission of the actual license as the only acceptable proof of the operator’s licensure. That section defines “license” as “evidence issued by the Department to an individual as proof of his authority and competence to operate a breath analysis instrument.” (Standards, §510.20.) We find no indication in this definition of any such intent. Instead, we find that this definition supports our finding that the original writing rule does not apply in this instance.

The State introduced competent proof of Trooper Goodman’s authority and competence to operate a breath testing instrument in the form of Goodman’s testimony that he was properly licensed on the date the test in question was administered. The court did not err in finding a proper foundation for admission of the results of that breath test and allowing admission.

Defendant’s third argument on appeal is that the trial court erred in failing to grant defendant a new trial where two police officers repeatedly testified that, in their opinions and based upon their personal observations of the defendant at the time of his arrest, defendant’s blood-alcohol concentration was in excess of .10. Defendant objected each time the officers so testified, and each time, defendant’s objection was sustained, the testimony stricken and on several occasions the jury was instructed to disregard the testimony. Furthermore, the jury was instructed immediately prior to its deliberations to disregard testimony which had been stricken.

While a witness may testify as to his opinion of whether an individual was intoxicated (Vandeveer v. Preston (1957), 13 Ill. App. 2d 29, 36, 140 N.E.2d 521, 524), the only method by which evidence of a defendant’s blood-alcohol concentration may be determined is by analysis of the person’s blood, urine, breath or other bodily substance in conformity with section 11 — 501.2 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.2). (People v. Dakuras (1988), 172 Ill. App. 3d 865, 869, 527 N.E.2d 163, 166.) Evidence of a defendant’s blood-alcohol concentration based on anything other than such chemical analysis is inadmissible in a criminal prosecution for violation of section 11 — 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11-501). (Dakuras, 172 Ill. App. 3d at 869-70, 527 N.E.2d at 166.) The court in Dakuras explained as follows:

“[W]e read sections 11 — 501.2(a) and 11 — 501.2(b)(4) to allow the introduction of evidence in a section 11 — 501(a)(2) prosecution which would be relevant to whether a person is under the influence of alcohol, such as field sobriety tests and opinions on intoxication, but if that evidence consists of a defendant’s blood-alcohol concentration, then such evidence may be based only on the statutorily prescribed analysis of the defendant’s bodily substances.” (172 Ill. App. 3d at 870, 527 N.E.2d at 166.)

The court further held that its holding would apply to prosecutions under both section 11 — 502(a)(1) (driving with a blood-alcohol concentration in excess of .10) and section 11 — 501(a)(2) (driving while under the influence of alcohol). 172 Ill. App. 3d at 870, 527 N.E.2d at 167.

Thus, it was improper for the police officers to testify as to their personal opinions of the defendant’s blood-alcohol concentration. Defendant argues that this evidence, although stricken, prejudiced his case because the evidence was closely balanced and the jury deliberations so lengthy. The record indicates the jury deliberated 6 hours and 40 minutes before reaching a verdict, indicating, argues defendant, that it had a difficult time resolving the issue of defendant’s guilt. Defendant argues that due to the strength of the defendant’s case and the difficulty the jury had in arriving at a verdict, any evidence the jury heard which was improper could well have been a factor in persuading it of the defendant’s guilt. The error, defendant argues, could not have been cured by the trial court’s admonitions to disregard the stricken testimony.

The State counters that any error was cured when the trial court sustained defendant’s objections, ordered the improper testimony stricken, and instructed the jury to disregard testimony which had been stricken, and that, in any event, any error was harmless. Therefore, defendant was not entitled to a new trial.

The mere occurrence of improper remarks or testimony does not itself mandate reversal. (People v. Whitfield (1986), 140 Ill. App. 3d 433, 440, 488 N.E.2d 1087, 1092.) Where a timely objection is made at trial, the court can, by sustaining the objection or instructing the jury to disregard the answer, usually correct the error. (Whitfield, 140 Ill. App. 3d at 440, 488 N.E.2d at 1092.) Where error does result, defendant’s prompt and timely objection and an appropriate admonition by the court to the jury will normally render the error harmless. (Whitfield, 140 Ill. App. 3d at 440-41, 488 N.E.2d at 1092.) To warrant reversal, the challenged testimony must be shown to have caused substantial prejudice, constituted a material factor in defendant’s conviction, or produced a judgment different from that which would have resulted absent the alleged impropriety. (Whitfield, 140 Ill. App. 3d at 441, 488 N.E.2d at 1092.) It is presumed that juries will follow their instructions unless the court can conclude that it did not or could not follow the instructions and there is a strong likelihood that the effect of the evidence would be devastating to the defendant. (People v. Sandoval (1990), 135 Ill. 2d 159, 192-93, 552 N.E.2d 726, 741.) We find nothing in this record to lead us to conclude that the jury did not or could not have followed the instruction of the trial court to disregard the improper testimony.

In any event, the improper testimony, even if considered by the jury, could not have prejudiced defendant’s case. In order to constitute reversible error, the improper testimony must have caused substantial prejudice, constituted a material factor in defendant’s conviction, or produced a judgment different from that which would have resulted absent the impropriety. (Whitfield, 140 Ill. App. 3d at 441, 488 N.E.2d at 1092.) The fact that defendant’s blood-alcohol concentration was in excess of .10 was properly established through admission of the results of defendant’s breath test. Error in the admission of evidence is harmless if the same facts are strongly established by other competent evidence. (People v. Brouder (1988), 168 Ill. App. 3d 938, 945, 523 N.E.2d 100, 104.) Furthermore, we disagree with defendant’s characterizations of the evidence as closely balanced and the jury deliberations as lengthy. Without setting forth all of the evidence of defendant’s intoxication, we simply find that it was sufficiently strong that the improper testimony of the officers could not have substantially prejudiced defendant’s case, constituted a material factor in defendant’s conviction, or produced a judgment different from that which would have resulted absent the impropriety.

Defendant compares this case to People v. Larry (1991), 218 Ill. App. 3d 658, 578 N.E.2d 1069. In Larry, the prosecutor intentionally and repeatedly elicited hearsay evidence over six objections which were sustained and in defiance of the trial court’s admonitions. The prosecutor also argued this inadmissible evidence in his closing argument. The appellate court found the prosecutor’s conduct to be egregious and that the cumulative effect of the repeated questions was to establish in the minds of the jury a fact which was highly damaging to the defendant. The appellate court found that the fact that the trial court sustained the objections was not enough to shield the jury from the implications of the questions. The court held, “[wjhere, as here, prosecutors defy the triai court’s rulings by repeating the same questions after objections have been sustained, the court’s rulings can have no salutary effect.” (218 Ill. App. 3d at 663, 578 N.E.2d at 1072.) Furthermore, the appellate court found that the improper evidence was highly prejudicial to defendant.

In the instant case, the record clearly shows that the prosecutor did not act intentionally in eliciting the improper testimony. Instead, the testimony was elicited as a result of inartfully drafted questions and the officers’ misunderstanding of those questions. Furthermore, we have already held that the improper testimony was not prejudicial to defendant. The instant case is sufficiently different on its facts to distinguish it from Larry.

Defendant’s final argument on appeal is that the trial court erred in precluding him from presenting to the jury evidence that, after he pleaded not guilty and demanded a jury trial, the State filed the additional charge of driving with a blood-alcohol concentration in excess of .10. Defendant sought to introduce this evidence through the testimony of Trooper Goodman, the arresting officer, that, on the evening of defendant’s arrest, only one charge of driving under the influence of alcohol was filed against defendant. After defendant pleaded not guilty and demanded a jury trial, Trooper Goodman signed an amended complaint charging defendant with the additional charge of driving with a blood-alcohol concentration in excess of .10. Defendant argued that the evidence was relevant to show the improper motive or bias of the State.

The court found that the evidence was not relevant to the question of defendant’s guilt or innocence and did not serve to impeach the testimony of the arresting officer by showing any bias or lack of reliability in the testimony he presented in the State’s case in chief. Defendant then stated that he was not offering the evidence for impeachment purposes. The court excluded the evidence on the basis that it was not relevant.

On appeal, defendant concedes that the State has the right to amend its charge against defendant or add additional charges after the defendant’s arrest and prior to trial. However, defendant argues that he should have had an opportunity to present such facts to the jury in order to question the State’s motive. Defendant argues that the widest latitude should be allowed the defendant for the purpose of establishing bias, and that the partiality of a witness is subject to exploration at trial and is always relevant to discredit the witness and affect the weight of his testimony. Defendant argues that the evidence which was excluded could have been used by the jury to weigh the credibility of Trooper Goodman, the arresting officer. Because the evidence was closely balanced and the jury deliberation lengthy, the error was prejudicial.

We think it is clear that the proffered evidence was not relevant to the issue of defendant’s guilt or innocence of the crimes with which he was charged. Evidence is relevant when it tends to prove a fact in controversy or renders a matter in issue more or less probable. (People v. McElroy (1980), 81 Ill. App. 3d 1067, 1073, 401 N.E.2d 1069, 1074.) The fact that the additional charge was filed against defendant subsequent to his pleading not guilty and demanding a jury trial does not reflect in any way on the question of defendant’s guilt or innocence. It does not tend to prove defendant’s guilt or innocence, or make defendant’s guilt or innocence more or less probable. A trial court may properly refuse evidence which will serve no useful purpose in the trial or which is incompetent to prove an issue. McElroy, 81 Ill. App. 3d at 1074, 401 N.E.2d at 1074.

We further find that the evidence was not admissible to prove improper motive on the part of the State because it does not relate to any material issue in the case. In order to be relevant, evidence must relate to a fact that is of consequence to the determination of the action. (People v. Monroe (1977), 66 Ill. 2d 317, 322, 362 N.E.2d 295, 297.) In other words, it must be material. Evidence of the State’s motive in bringing a criminal charge is immaterial in the prosecution of that charge. Such evidence does not relate to a fact that is of consequence to the determination of the action, even in a collateral or circumstantial way. We distinguish evidence of the State’s motive or bias in bringing a charge from evidence of a testifying witness’ motive or bias. The latter type of evidence does relate to a fact that is of consequence to a determination of the action and is material in that it bears circumstantially on the evaluation of the probative value to be given to other evidence in the case. (See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §401.1, at 127 (5th ed. 1990).) The proffered evidence was not admissible to prove the State’s motive or bias in bringing the charge.

Finally, we find that the evidence was not relevant to prove the bias or interest of the testifying officer. It is well settled that, when impeaching a witness by showing bias, interest or motive, the evidence used must give rise to the inference that the witness has something to gain or lose by his testimony. (People v. Harris (1988), 123 Ill. 2d 113, 147, 526 N.E.2d 335, 349.) Defendant presents no evidence or argument as to anything Trooper Goodman might have hoped to gain or lose by his testimony, nor are we able to discern any such evidence from the record. Defendant never indicates the basis or nature of the alleged bias or interest. Evidence that an additional charge was filed against defendant subsequent to his not guilty plea and jury demand does not call into question Trooper Goodman’s credibility and does not demonstrate any bias, interest or improper motive on his part. Thus, the evidence was properly excluded.

Even assuming that exclusion of the evidence was error, we find that it was harmless. The exclusion of evidence designed to impeach a witness or affect his credibility will constitute reversible error where such exclusion is shown to have a prejudicial effect. (People v. Spence (1989), 188 Ill. App. 3d 761, 765-66, 544 N.E.2d 831, 835.) Where there is sufficient competent evidence establishing a defendant’s guilt beyond a reasonable doubt, and defendant cannot show that the error was the basis of the jury’s verdict, the error is harmless, and reversal is not required. (Spence, 188 Ill. App. 3d at 766, 544 N.E.2d at 835.) It is defendant’s burden to demonstrate prejudice and to establish that there was a reasonable possibility that the error, in light of all the evidence, was a material factor in his conviction, and a claim of prejudice must be founded on more than mere conjecture. (Spence, 188 Ill. App. 3d at 766, 544 N.E.2d at 835.) To support his claim of prejudice in the exclusion of the evidence, defendant argues only that the evidence was closely balanced and the jury deliberations lengthy. Furthermore, defendant never indicates in his brief or in the trial record the basis or nature of Trooper Goodman’s alleged bias or interest and, indeed, the record contains no evidence of any such bias or interest. Any claim of prejudice from exclusion of the evidence is mere conjecture.

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

Affirmed.

GOLDENHERSH, P.J., and HARRISON, J., concur.