author: PRESIDING JUSTICE FREEMAN JUSTICE McNAMARA,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD EVERETTE, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—1978
    Opinion filed June 14, 1989.

      McNAMARA, J., dissenting.

      Michael J. Pelletier and Martin Carlson, both of State Appellate Defender’s Office, and Rosenthal & Schanfield, both of Chicago (Robert R. Tepper, Andrew J. Katlin, John S. Delnero, Nancy Grant, Glenn E. Heilizer, and David G. Spak, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Patricia Y. Brown, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, Donald Everette, was convicted by a jury of murder in the circuit court of Cook County. The trial court sentenced him to 24 years’ imprisonment. He appeals.

At defendant’s trial, Edward Jeffries testified to the following when called as a witness for the State. On November 1, 1985, at approximately 10 p.m., Jeffries, the victim, Johnny Island, and an individual named Donnell were drinking a six-pack of beer near the mailboxes on the first floor of a public housing building at 3835 South Federal in Chicago. While the three men were near the mailboxes, defendant approached the building and went to the mailbox area. When defendant did so, the victim moved away from him to the other side of the mailboxes. When he moved away, Island teased defendant about a “prior incident that happened to him.” Defendant then told Island that, if defendant wanted to, he could get Island. Island then walked up and called defendant’s name. Defendant ignored Island and walked away toward a ramp leading to apartments in the project.

Approximately five minutes later, defendant came down the ramp and started running toward the three men. Jeffries told Island that defendant was coming and Island started to run away. When defendant reached the area of the mailboxes and while Island was still running away, defendant pulled out a black revolver. Island slipped while turning the corner of the wall containing the mailboxes and Jeffries heard a shot. When Island slipped, he was 7 to 10 feet away from defendant. When defendant fired the gun, he had both arms straight out in front of him pointing at Island’s back. After defendant had fired the shot, Jeffries asked him why he had shot at Island. Without responding, defendant walked past Jeffries and Donnell toward the ramp.

Defendant testified on his own behalf. He testified that he went to his mailbox upon arriving at his building on the night of the shooting. At that time, he heard Jeffries say, “There he is.” After closing his mailbox and removing three letters, defendant heard Island say, “We aren’t going to start nothing, cause that is over with.” Defendant knew what Island was talking about. Defendant testified that, in June 1985, Island hit him over the head with a Coca-Cola bottle when defendant attempted to intercede in an argument between Island and the stepdaughters of a friend of defendant. Defendant also testified that, in August 1985, he was waiting for a bus when Island walked up to him and apologized in a sarcastic tone for hitting him in June. While apologizing, Island circled defendant with a gallon wine container in his hand.

Defendant further testified that when he started toward his apartment after getting his mail, he was met by Island, Jeffries and a third person. Defendant continued toward his apartment while the three men attempted to go through his pockets. After defendant got into his apartment, he noticed that two of the three letters were not for him. Eventually, defendant decided to go out for something to eat. Before leaving his apartment with the two misdirected letters, defendant decided to take his pistol with him because the three men might still be downstairs.

When defendant arrived downstairs, he went to the mailbox to deposit the two letters. At that time, Jeffries said “[T]here he is again,” and Island asked in a loud tone, “What are you doing back down here?” Defendant turned in Island’s direction. Defendant saw the silhouette of a person he identified as Island from the voice. Island had his arm in a striking position, i.e., slightly behind the body at about a 45-degree angle and at waist height, while holding a can or other object. Defendant believed that Island was going to strike him. Defendant formed this belief because of Island’s conduct toward him, Jeffries saying “Hit him, hit him,” and because Island had struck him in the past. At that point, defendant pulled out his pistol, pointed in Island’s direction and cocked it. Defendant denied any intent to shoot Island at that time, stated that he pulled the pistol because he was “frightened and scared,” and claimed that he pulled it “just to scare” Island. Defendant further testified that as he cocked the pistol, he took two steps back. As he took the first step back, he saw Island turn. As he took the second step back, his right shoulder bumped the mailboxes, which caused the pistol to go off.

On cross-examination, defendant characterized his first encounter with Island and Jeffries as a “brief argument.” He further claimed that he pulled the gun on Island because of fear for his life.

The State also introduced evidence of a question and answer statement which defendant made to an assistant State’s Attorney after the shooting. The statement substantially corroborated defendant’s testimony regarding the sequence of events leading up to the shooting of Island. However, there was no mention in the statement of the fact that defendant left his apartment to buy something to eat, in addition to returning two misdirected letters to his mailbox. Nor was there any mention in the statement that defendant took his pistol with him for his protection. Finally, there was no mention in the statement that defendant shot Island accidentally. In addition to introducing the statement in its case in chief, the State used the statement to impeach defendant’s testimony on these three latter points.

Opinion

On appeal, defendant first contends he was not proved guilty beyond a reasonable doubt. Specifically, he asserts that the testimony of Jeffries, the State’s only occurrence witness, was incredible because the facts “suggest” that Jeffries was intoxicated at the time of the shooting. Defendant further likens Jeffries to a narcotics addict, whose testimony must be closely scrutinized. See, e.g., People v. Galloway (1974), 59 Ill. 2d 158, 319 N.E.2d 498.

We find the “suggestion” in the record of Jeffries’ intoxication at the time of the shooting wholly insufficient to. render his testimony incredible and, therefore, to raise a reasonable doubt of defendant’s guilt. Nor is there any evidence in the record that Jeffries habitually used or abused alcohol. As such, there is no record basis for defendant’s comparison of Jeffries to a narcotics addict. Thus, neither the trial court nor jury was required to scrutinize his testimony as closely as that of a narcotics addict.

Defendant also asserts that he was not proved guilty beyond a reasonable doubt because the State improperly introduced into evidence a gun which was similar to that with which defendant shot Island. The gun actually used in the incident had been inadvertently destroyed by the State.

We do not agree. People v. Seals (1987), 153 Ill. App. 3d 417, 505 N.E.2d 1107, dealing with exactly the same issue, is dispositive of defendant’s claim. Therein the court stated:

“Demonstrative evidence can be used to make other testimony more understandable. [Citation.] If it provides a visual aid for the jury, it should be used for factual explanation, not dramatic effect. [Citation.] The use of demonstrative evidence is within the discretion of the trial court.” Seals, 153 Ill. App. 3d at 423.

Like the Seals defendant, defendant here admitted firing the gun that caused the death and his defense was based on a theory of self-defense. Also, as in Seals, the jury was told that the gun demonstrated at trial was not the gun used in the shooting. Comparably to Seals, the gun was used briefly during the testimony of a police officer and by the prosecutor in closing argument but was not permitted to go to the jury. In view of the limited use of the similar gun, we cannot say that the trial court abused its discretion in admitting it into evidence. Seals, 153 Ill. App. 3d at 424.

Defendant next asserts that the State did not prove him guilty beyond a reasonable doubt because it did not disprove beyond such a doubt that he shot Island accidentally while acting in self-defense. The State responds that defendant failed to adequately raise the affirmative defense of self-defense so as to require it to disprove the claim beyond a reasonable doubt. The State relies on defendant’s testimony that he did not intend to shoot anyone and that he shot Island accidentally.

The defense of self-defense is statutorily codified in section 7 — 1 of the Criminal Code of 1961 (the Code), which provides, in relevant part:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself *** against such other’s imminent use of unlawful force. However, he is justified in the use of force 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. 1985, ch. 38, par. 7-1.)

Self-defense as provided for under section 7 — 1 is an affirmative defense which, once raised, the State must disprove beyond a reasonable doubt. (People v. Estes (1984), 127 Ill. App. 3d 642, 651, 469 N.E.2d 275.) Moreover, the defense is raised by a slight amount of evidence. People v. Bratcher (1976), 63 Ill. 2d 534, 540, 349 N.E.2d 31; People v. Daily (1979), 79 Ill. App. 3d 928, 939, 398 N.E.2d 923.

Preliminarily, we believe that defendant’s testimony of the sequence of events preceding the fatal shooting of the victim adequately raised the issue of self-defense. Specifically, we note defendant’s testimony that he pulled his gun because he perceived Island standing with his arm in a striking position while holding a beer can or some other object, that Jeffries had said to Island, “Hit him, hit him,” and that he, defendant, was scared at this time. We believe that the facts and circumstances of this case adequately established, contrary to the dissent’s conclusions, that defendant could have subjectively believed that Island posed a threat to him and that he, therefore, adequately raised the issue of self-defense.

In this regard, we do not believe that a defendant must testify in haec verba that he actually believed that it was necessary to use force in order to raise the defense of self-defense. Rather, we believe that a defendant raises the defense where his testimony and any other evidence relevant thereto is sufficient to allow the trier of fact to infer whether he actually believed in the necessity to use the force he did. “So long as some evidence is presented from which a jury could conclude that defendant had a subjective belief [that the use of force was necessary], the jury should determine if the belief existed.” (Emphasis added.) (People v. Lockett (1980), 82 Ill. 2d 546, 553, 413 N.E.2d 378.) That requirement for raising, as opposed to proving, the defense was met here.

Defendant’s testimony that he was legally blind, which was unrebutted by the State, could also properly be considered by the jury in determining whether Island presented a threat to defendant. In People v. Estes (1984), 127 Ill. App. 3d 642, 651, 469 N.E.2d 275, the court noted, inter alia, that the test of self-defense claims is whether the facts and circumstances would induce a reasonable apprehension of serious bodily harm in light of the defendant’s perception of the situation at the time he employed force against his aggressor. The court then considered the fact that the defendant had extremely poor vision as a factor in determining whether the State had disproved her claim of self-defense beyond a reasonable doubt. Estes, 127 Ill. App. 3d at 652.

Unlike the dissent, we cannot say that Island’s conduct could not have created a fear of imminent death or great bodily harm in defendant as a matter of law. In the context of self-defense, it is the defendant’s perception of danger, not the actual danger, which is dis-positive. (People v. Sawyer (1986), 115 Ill. 2d 184, 193, 503 N.E.2d 331, cert. denied (1987), 482 U.S. 930, 96 L. Ed. 2d 702, 107 S. Ct. 3216.) Finally, in addition to determining whether a defendant actually believed in the necessity of using force where some evidence is presented from which a jury could make that determination, it is also for the jury to determine whether the belief was reasonable or unreasonable. People v. Lockett (1980), 82 Ill. 2d 546, 553, 413 N.E.2d 378.

Next, we disagree with the State that defendant’s lack of an intent to shoot Island and his claim of accidental shooting precluded a claim of self-defense as a matter of law. (People v. Robinson (1987), 163 Ill. App. 3d 754, 516 N.E.2d 1292; People v. Whitelow (1987), 162 Ill. App. 3d 626, 515 N.E.2d 1327; People v. Brooks (1985), 130 Ill. App. 3d 747, 474 N.E.2d 1287; People v. Buchanan (1980), 91 Ill. App. 3d 13, 414 N.E.2d 262; People v. Cruz (1978), 66 Ill. App. 3d 760, 384 N.E.2d 137.) We also find unavailing the State’s reliance on People v. Chatman (1981), 102 Ill. App. 3d 692, 430 N.E.2d 257, in conjunction with defendant’s claims of lack of intent and accident, as necessitating a conclusion that defendant’s claim of self-defense was disproved beyond a reasonable doubt. Chatman held that it is unreasonable for an armed defendant to believe that an unarmed victim who had turned his back and was walking away poses an imminent threat of death or great bodily harm so as to justify the use of force against him. People v. Chatman (1981), 102 Ill. App. 3d 692, 700, 430 N.E.2d 257.

In merely relying upon Chatman, the State ignores that this case, unlike Chatman, involved a claim that, although the defendant engaged in acts of self-defense, the injury he was accused of inflicting was actually the result of an accident. (See generally People v. Robinson (1987), 163 Ill. App. 3d 754, 516 N.E.2d 1292.) Moreover, it has been held, in contradistinction to Chatman, that the law does not require that the aggressor be armed in order to justify the use of a deadly weapon in self-defense. (People v. Estes (1984), 127 Ill. App. 3d 642, 651-52, 469 N.E.2d 275.) Rather, where it is clear that the aggressor is capable of inflicting serious bodily harm on the defendant without the use of a deadly weapon, and it appears that he intends to, then it is unnecessary for the aggressor to be armed for the defendant to employ deadly force in self-defense. Estes, 127 Ill. App. 3d 642, 469 N.E.2d 275.

Thus, the facts that Island was not armed with a deadly weapon and was walking away when he was shot, and that defendant claimed the shooting was accidental, do not require the conclusion that defendant’s claim of self-defense was disproved beyond a reasonable doubt. Rather, the State had the burden of adducing evidence to disprove defendant’s claim of self-defense beyond a reasonable doubt. This the State did not do. As such, we cannot say that defendant was proved guilty of the offense of murder beyond such a doubt.

This conclusion brings us to defendant’s next contention on appeal. Relying on People v. Robinson (1987), 163 Ill. App. 3d 754, 516 N.E.2d 1292, defendant contends that the trial court erred in refusing tendered instructions on self-defense and voluntary manslaughter on the ground that defendant’s claim that he accidentally shot Island precluded him from asserting the affirmative defense of self-defense.

In Robinson, the trial court refused to instruct the jury on self-defense and voluntary and involuntary manslaughter. The trial court held that the defendant’s defense that the shooting was accidental precluded a claim of voluntary manslaughter and self-defense. In a thoroughly researched opinion, the Robinson court found that the trial court erred. The court first noted the split of authority over the propriety of self-defense instructions when a defendant testifies that a homicide or battery was accidental. The court noted that courts that rejected self-defense instructions, where the defendant claimed accident, did so partly on the basis of a conflict between the two defenses. However, the court found that in those cases no self-defense was actually shown on the facts, thus justifying no instruction thereon that could contradict an accident theory in the first place. Robinson, 163 Ill. App. 3d at 762.

The court reasoned that the split of authority could be explained by differences among the cases as to whether the defendants claimed: (1) that all of their acts immediately preceding the injury at issue were accidental or nonforcible; or (2) that the acts preceding the injury inflicted were intentionally forcible and self-defensive but that the injury was accidental. The court termed cases of the first group cases of accident but no self-defense. In those cases, the defendants had not shown self-defense since intent or force prior to the injury was lacking. As such, instructions on that issue had been properly denied, regardless of any inconsistency with the defense of accident. The court termed cases of the second group as cases of self-defense plus accident. Those cases involved “intentional self-defense though unintended result.” Therein, intentional acts were the basis for self-defense theories and instructions, but only to support ultimate defenses of accident as to the injury for which the defendants were tried. In other words, the defendants in those cases relied on accident theories as to the injury inflicted and self-defense theories as to their acts preceding the injury. Robinson, 163 Ill. App. 3d at 762, 768.

The crux of this case is thus in determining within which group this case falls. That is, did defendant’s evidence reveal intentional acts of self-defense immediately preceding an allegedly accidental injury or merely an allegedly accidental injury not preceded by any acts of self-defense? Stated differently, the issue here is whether defendant was engaged in intentionally self-defensive acts immediately prior to the shooting of Island, thus entitling him to have the jury instructed on self-defense. After considering the differences between the two groups of cases, as outlined in Robinson, we find that defendant’s evidence revealed intentional acts of self-defense and that he was thus entitled to have the jury instructed on that defense.

The Robinson court classified each of the cases the State relies upon here, and in which self-defense instructions were held properly refused, as cases of accident but no self-defense. It classified the cases defendant relies upon, in which such instructions were held properly given, as cases of self-defense plus accident.

Specifically, the Robinson court found that in People v. Shelton (1985), 140 Ill. App. 3d 886, 489 N.E.2d 879, the defendant never affirmatively used force against anyone but merely, without intending to stab, extended a knife into which the victim ran. Thus, the Robinson court concluded that the Shelton defendant did not initiate any use of force constituting self-defense under the statutory definition of the term and entitling him to self-defense instructions.

In People v. Purrazzo (1981), 95 Ill. App. 3d 886, 420 N.E.2d 461, cert, denied (1982), 455 U.S. 948, 71 L. Ed. 2d 661, 102 S. Ct. 1448, the defendant testified that: (1) he struggled with his wife when she pointed a gun at him; (2) during the struggle, one shot, which defendant did not think struck his -wife, was fired; (3) he got the gun from his wife; and (4) while he held it, his dog jumped at his arm, causing other shots to be fired. The Robinson court reasoned that, based on the Purrazzo defendant’s own testimony, when the shots which hit his wife were fired, any acts of self-defense had been completed since he then possessed the gun and his wife was sitting on the couch onto which he had pushed her. The court therefore concluded that the Purrazzo defendant was indeed relying on an accident theory and had failed to show that he was engaged in any intentional self-defensive acts when the shots, which indisputably hit his wife, were fired.

In People v. Dzambazovic (1978), 61 Ill. App. 3d 703, 377 N.E.2d 1077, the defendant testified that the victim produced a gun and threatened to kill him and herself if the defendant drove to meet her boyfriend; he struggled with the victim for the gun; the gun went off accidentally while the victim was holding it; he did not shoot her with an intent to kill her. The Robinson court said that no self-defense justifying an instruction thereon was shown in Dzambazovic. The court relied on the fact that the force threatened by the victim was not imminent, since it was conditioned upon the defendant’s driving to meet the victim’s boyfriend, and that the defendant did not testify that he initiated the struggle from a motive of self-defense.

The State asserts that this case is indistinguishable from Shelton, Purrazzo, and Dzambazovic. Specifically, the State asserts that, as in those cases, there was no evidence of an intentional or justifiable use of force by defendant. In so arguing, the State relies upon defendant’s testimony that he had the gun because he was afraid of Island and wanted to frighten him, that Island had turned away from him, and that the gun discharged when his shoulder bumped against the mailboxes. That the defendant acted to protect himself, the State argues, was insufficient to raise the issue of self-defense in view of his lack of intent to harm the victim, citing People v. Tanthorey (1849), 404 Ill. 520, 89 N.E.2d 403.

We believe that the State’s reliance on Tanthorey is misplaced. We further believe that its argument that defendant did not engage in an intentional use of force against Island, as required under section 7 — 1 for a self-defense instruction (People v. Whitelow (1987), 162 Ill. App. 3d 626, 515 N.E.2d 1327), is incorrect.

In Tanthorey, the defendant testified that a gun he was about to discard discharged while he was struggling with the victim, who had accosted him in an alley, and that he did not intend to shoot. In classifying Tanthorey as a case of accident but no self-defense, the Robinson court reasoned that, according to his own testimony, the Tanthorey defendant never affirmatively used force against anyone, but merely raised his arm to ward off any force that might be directed at him. The court thus concluded that self-defense instructions had been properly refused in Tanthorey because self-defense, in terms of an affirmative use of force against someone, had not been shown.

Here, in contrast to Tanthorey and contrary to the State’s assertion, defendant’s act of pulling and pointing a gun at Island after perceiving that Island was holding a beer can or other object in a striking position was an affirmative and intentional use of force in defense of self.

In People v. Whitelow (1987), 162 Ill. App. 3d 626, 515 N.E.2d 1327, the defendant testified that Bobby Joe Capers and another, with whom he had been arguing, began advancing toward him; he became frightened because of prior beatings by Capers and his friends; he ran for something with which to defend himself while being chased; he grabbed an object from a fourth person without realizing it was a shotgun; the gun discharged as he grabbed it; and he did not intend to shoot or kill Capers. As in this case, the State defended the trial court’s refusal of self-defense instructions on the grounds that defendant’s defense was accident and he did not intend to shoot Capers. In rejecting the argument, the appellate court noted its holdings in two prior cases that self-defense instructions were appropriate although the defendants testified the deaths resulted from accidents. Of one of those cases, People v. Buchanan (1980), 91 Ill. App. 3d 13, 414 N.E.2d 262, which defendant cites and the Robinson court placed in the “self-defense plus accident” category, the court noted: “In Buchanan, the defendant alleged he pulled a handgun on the victim to protect himself. A struggle ensued, the gun fired, and the victim died.” Whitelow, 162 Ill. App. 3d at 629.

Whitelow and Buchanan are thus dispositive of the question whether defendant here engaged in an intentional act of force which supported instructing the jury on self-defense. That is, defendant’s act of pulling the gun, pointing it at Island and cocking the hammer was as much, if not more, an act of force as the acts of the Whitelow and Buchanan defendants.

In view of the rejection of the argument in prior cases (People v. Whitelow (1987), 162 Ill. App. 3d 626, 515 N.E.2d 1327; People v. Cruz (1978), 66 Ill. App. 3d 760, 764, 384 N.E.2d 137; People v. Brooks (1985), 130 Ill. App. 3d 747, 474 N.E.2d 1287; see also People v. Robinson (1987), 163 Ill. App. 3d 754, 769, 516 N.E.2d 1292), we also find the State’s reliance on defendant’s lack of intent to shoot Island unavailing. In so arguing, the State misconstrues the intent necessary to support a self-defense instruction in cases of this type. As Robinson makes clear, that intent is an intent to use force in the defense of self. It is not an intent to cause or inflict the injury which leads to the criminal charge against the defendant.

The State also attempts to distinguish People v. Stewart (1986), 143 Ill. App. 3d 933, 494 N.E.2d 1171, and People v. Brooks (1985), 130 Ill. App. 3d 747, 474 N.E.2d 1287, which defendant cites in support and which the Robinson court classified as cases of self-defense plus accident.

Specifically, the State asserts that the Stewart defendant, who testified that he was trying to stab the victim, intended to use force to defend himself, unlike defendant here. In view of our conclusion that defendant also intentionally used force to defend himself, we find the State’s argument unavailing.

The State argues further that, unlike the Brooks defendant’s testimony that the victim had shot at him, the testimony of defendant here did not establish a need for self-defense. This argument ignores defendant’s testimony that Island was holding an object in a striking position before defendant pulled and pointed his gun at him. This testimony established defendant’s belief in a need to defend himself. Defendant’s testimony that Island turned away as he was stepping backwards and that the gun went off as he was so doing, upon which the State relies, did not negate the propriety of instructing the jury on self-defense.

“The allegedly accidental nature of the ultimate gunshot does not vitiate the self-defense evidence as to” the acts of the defendant “that immediately preceded it.” (Emphasis added.) (People v. Robinson, 163 Ill. App. 3d at 770.) Moreover, “[t]he evidence of self-defense immediately preceding the alleged accident distinguishes the instant case from others in which no such evidence had been offered and the refusal of a self-defense instruction was upheld.” (Emphasis added.) (Robinson, 163 Ill. App. 3d at 771, citing, inter alia, People v. Purrazzo (1981), 95 Ill. App. 3d 886, 420 N.E.2d 461, cert. denied (1982), 455 U.S. 948, 71 L. Ed. 2d 661, 102 S. Ct. 1448.) Of the cases cited by the parties, Purrazzo is the most factually analogous to this case. However, like the Robinson court, we find it distinguishable from this case on the ground that the claimed self-defensive acts of the defendant therein did not immediately precede the injury for which he was tried.

Because we disagree with the State that defendant did not establish that he was involved in self-defensive acts immediately preceding or at the time of Island’s shooting, we likewise find unavailing its attempt to distinguish Robinson and Buchanan from this case on that ground.

The State also argues that any error in the refusal of self-defense instructions was harmless beyond a reasonable doubt, given the clear, convincing and overwhelming evidence of guilt, citing People v. Jiminez (1983), 115 Ill. App. 3d 1091, 452 N.E.2d 40, and People v. Jones (1980), 81 Ill. 2d 1, 405 N.E.2d 343. In neither of those cases, however, did the defendants claim that the injuries for which they were tried resulted from accident preceded by acts of self-defense, as in this case. As such, we find them inapposite here. In this case, defendant testified regarding a perceived need to defend himself. Even a slight amount of evidence raises the self-defense issue and justifies an instruction thereon. (People v. Robinson, 163 Ill. App. 3d 754, 761, 516 N.E.2d 1292.) As such, we cannot say that the refusal of such instructions here was harmless beyond a reasonable doubt.

In sum, we believe that defendant sufficiently raised the defense of self-defense and that, contrary to the trial court’s belief, his claim that he shot Island accidentally did not preclude his right to have the jury instructed on that defense as a matter of law. This conclusion requires us to hold that defendant was also entitled to have the jury instructed on voluntary manslaughter.

Section 9 — 2(b) of the . Code provided at the time of the shooting, in relevant part:

“(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in [Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1 et seq.], but his belief is unreasonable.” (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2.)

“When a self-defense instruction is warranted, an instruction tendered by the defendant on voluntary manslaughter is also required, since the existence of a subjective but unreasonable belief in the need for self-defensive force can lead to a voluntary-manslaughter conviction.” (Robinson, 163 Ill. App. 3d at 777.) The trial court’s failure to instruct the jury on self-defense and voluntary manslaughter requires a new trial.

Finally, because the State may desire to use defendant’s recorded statement at a new trial, we must address the contentions that the trial court erred in failing to suppress that statement and that the State violated defendant’s fifth amendment right to remain silent by using the statement to impeach him.

As the basis of the first contention, defendant asserts that the State’s failure to record all of his statements to the police denied him State and Federal due process. The only case directly supporting defendant’s position is Stephan v. Alaska (Alaska 1985), 711 P.2d 1156. The Alaska Supreme Court decided the issue under the due process clause of the Alaska Constitution.

While the due process clause of the Alaska Constitution (Alaska Const., art. 1, §7) is identical to that of the Illinois Constitution (Ill. Const. 1970, art. 1, §2), we decline to interpret the Illinois Constitution as broadly as the Stephan court interpreted the Alaska Constitution. As the Vermont Supreme Court reasoned in declining to interpret the due process clause of the Vermont Constitution in accord with Stephan, the most appropriate means of augmenting the due process rights of citizens, especially in view of the ramifications of the rule urged by defendant, is through legislation. (See Vermont v. Gorton (1988), 149 Vt. 602, 606, 548 A.2d 419, 422.) “In the absence of legislation, we do not believe it appropriate to require, by judicial fiat, that all statements taken of a person in custody” be recorded or transcribed. Gorton, 149 Vt. 602, 606, 548 A.2d 419, 422.

Moreover, contrary to defendant’s assertion, custodial interrogations need not be recorded to satisfy the due process requirements of the U.S. Constitution relating to the preservation of evidence, as established in California v. Trombetta (1984), 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528. Stephan v. Alaska (Alaska 1985), 711 P.2d 1156,1160.

We also find unavailing defendant’s contention that the State’s use of his recorded statement to impeach him violated his right to remain silent.

People v. Robinson (1976), 44 Ill. App. 3d 447, 358 N.E.2d 43, the only case defendant cites in support, held that the State’s introduction into evidence of the defendant’s failure to tell the police why he shot the deceased violated his right to remain silent, notwithstanding his admission to the police that he did shoot the deceased. In Robinson, the defendant expressly invoked his “rights” in refusing to tell the police why he shot the deceased. Robinson, 44 Ill. App. 3d at 448-49.

Here, in contrast, defendant expressly stated in his recorded statement that he understood his Miranda rights but nonetheless agreed to talk to the assistant State’s Attorney. That is, he waived his right to remain silent. Moreover, that defendant was not asked by the assistant State’s Attorney about those matters upon which he was impeached with the recorded statement does not require a conclusion that the State violated his right to remain silent with respect thereto. Having knowingly and intelligently waived his Miranda rights and having agreed to make the recorded statement, defendant cannot now complain of its contents or its omissions.

In view of our remandment for a new trial, we need not address defendant’s contentions that prejudicial remarks by the prosecutor in closing argument denied him a fair trial or that his sentence is excessive.

For all of the foregoing reasons, defendant’s conviction is reversed and the cause is remanded for proceedings consistent with this opinion.

Reversed and remanded.

RIZZI, J., concurs.

JUSTICE McNAMARA,

dissenting:

I dissent from the majority holding that defendant adequately raised the issue of self-defense, and that the trial court committed reversible error in refusing to instruct the jury as to the law of self-defense. I would affirm the judgment entered on the jury verdict finding defendant guilty of murder.

The majority tenuously relies on scanty comments by defendant that, while pointing a loaded gun at the victim, defendant became afraid when he saw the victim holding a beer can and heard Jeffries say “hit him.” These bare statements can hardly imply self-defense unless the court “fragments the testimony in a ‘selective process *** so attenuated as to strain credulity to the breaking point.’ ” United States v. Wagner (9th Cir. 1987), 834 F.2d 1474, 1486 n. 12, quoting United States v. Crowder (D.C. Cir. 1976), 543 F.2d 312, 318.

A self-defense instruction should be refused where defendant fails to present some evidence from which a jury could conclude that defendant had a subjective belief that use of force was necessary to defend himself against the imminent use of unlawful force. (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1; People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378.) Defendant must produce enough evidence to place the defense in issue. At that point, the burden shifts to the State to disprove the defense beyond a reasonable doubt. People v. Carter (1988), 177 Ill. App. 3d 593, 532 N.E.2d 531.

Significantly, it is a question of law whether or not defendant has introduced sufficient evidence to support an instruction on self-defense. (People v. Shelton (1985), 140 Ill. App. 3d 886, 489 N.E.2d 879, citing People v. Woods (1980), 81 Ill. 2d 537, 410 N.E.2d 866.) When the law of self-defense does not apply to, and is not supported by, the issues and evidence in the case, a self-defense instruction may properly be refused. (People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31; People v. Shelton (1985), 140 Ill. App. 3d 886, 489 N.E.2d 879; People v. McGee (1982), 110 Ill. App. 3d 766, 443 N.E.2d 1057; People v. Chatman (1982), 110 Ill. App. 3d 19, 441 N.E.2d 1292.) Instructions are not justified if they are wholly unrelated to the case and are based on the merest factual reference in a witness’ comment. (People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31; People v. Robinson (1987), 163 Ill. App. 3d 754, 516 N.E.2d 1292.) Furthermore, a court may refuse, as a matter of law, to accept only an assertion or comment by defendant to support a self-defense instruction when the defendant also offers strong testimony that it was an accidental injury. See, e.g., People v. Tanthorey (1949), 404 Ill. 520, 89 N.E.2d 403; People v. Mitchell (1987), 163 Ill. App. 3d 58, 516 N.E.2d 500; People v. Purrazzo (1981), 95 Ill. App. 3d 886, 420 N.E.2d 461; People v. Dzambazovic (1978), 61 Ill. App. 3d 703, 377 N.E.2d 1077; see generally Annotation, Accused’s Right, in Homicide Case, to Have Jury Instructed as to Both Unintentional Shooting & Self-Defense, 15 A.L.R. 4th 983 (1982).

The court may consider, in determining this question of law, defendant’s testimony, the type of wound inflicted, defendant’s intent or motive, testimony of other witnesses, whether the testimony is contradictory, and references to a self-defense scenario. (See, e.g., People v. Robinson (1976), 44 Ill. App. 3d 447, 358 N.E.2d 43.) The trial court here properly considered evidence of defendant’s intent or motive. Defendant repeatedly testified he did not intend to shoot.

“Q. And was it your intention to shoot him at that time?
A. No, it wasn’t.
* * *
Q. Did you go downstairs intending to shoot [the victim]?
A. No, I did not.
* * *
Q. When you pulled your pistol, did you intend to shoot him?
A. No, I did not.
Q. What did you intend to do at that time?
A. I pulled it just to scare him.
Q. And why did you shoot him?
A. Because of my right shoulder hitting the mailbox.”

The trial court also properly considered defendant’s repeated statements that the killing was an accident. (See People v. Tanthorey (1949), 404 Ill. 520, 89 N.E.2d 403.) Defendant stated:

“My right shoulder bumped into the mailbox and caused the pistol to go off.
* * *
I had taken two steps backwards and when I bumped into my mailbox, that is what caused it to go off.
* * *
And on the second step backwards was when my shoulder bumped into that mailbox and caused the pistol to go off.
* * *
My right shoulder bumped into the mailbox ***.
* * *
Q. Are you telling that jury that this was an accident?
A. Yes, it was.
* * *
Q. You didn’t tell the first two police officers that it was an accident.
A. Yes, I did.
Q. You did?
A. Yes, I did.”

Defendant’s only intent was “to scare him.” He took out his pistol, pointed it at the victim and cocked it merely “to make him leave me alone.” Defendant repeated: “I pulled it [out] just to scare him.” Defendant apparently succeeded. In fact, defendant testified that when he drew the gun, the victim “had turned around and begun to run.” Defendant watched him run away. Unfortunately, as the scared victim turned and ran, he slipped, and defendant claimed that he accidentally shot him in the back.

In addition, defendant cannot rely on self-defense since he acted as the aggressor. (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1; People v. Shelton (1985), 140 Ill. App. 3d 886, 489 N.E.2d 879.) Defendant returned to the scene with a loaded gun and ran towards the victim, while the victim merely stood holding a beer can and then fled. (See, e.g., United States v. Wagner (9th Cir. 1987), 834 F.2d 1474; People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31; People v. Shelton (1985), 140 Ill. App. 3d 886, 489 N.E.2d 879; People v. McGee (1982), 110 Ill. App. 3d 766, 443 N.E.2d 1057.) As a matter of law, therefore, he cannot invoke the affirmative defense of justifiable use of force.

Furthermore, a defendant invoking self-defense must actually have believed that a danger existed. The danger must be of an imminent and present harm, and not merely harm threatened at a future time or threatened by someone without the present ability to carry out the threat. (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1.) Defendant here does not claim the victim was attempting to harm him at the time of the shooting. There was no advance by the victim toward defendant, and no physical movement or verbal threats from the victim. There was insufficient evidence that the victim presented any imminent threat. See People v. McGee (1982), 110 Ill. App. 3d 766, 443 N.E.2d 1057, comparing People v. Foster (1980), 81 Ill. App. 3d 915, 401 N.E.2d 1221 (victim’s threats followed immediately by victim’s advance toward defendant), with People v. Shelton (1985), 140 Ill. App. 3d 885, 489 N.E.2d 879 (following argument, defendants left and later went to victim’s home armed with weapons).

Defendant must not only believe his use of force was necessary to avert imminent danger, but also that the kind and amount of force which he used was necessary. (People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31.) The privilege of using deadly force is limited to situations where the force imminently threatened apparently will cause death or great bodily harm. (Ill. Rev. Stat. 1985, ch. 38, par. 7— 1; People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31.) Defendant here makes absolutely no claim, nor is there any evidence, that he thought it was necessary to use a deadly weapon. Prior to the shooting, the victim held a beer can in one hand. The victim did not say he was going to strike defendant and did not move his arm. No jury could make a rational finding that holding a beer can at waist level, in a normal position at a 45-degree angle to the body, is a “striking position” which would create fear of imminent death or great bodily harm.

Moreover, the trial court could also rely on defendant’s testimony that the first encounter could not even be described as a fight. “It wasn’t a fight, it was just a little, a brief argument, that is all it was.” Defendant’s bare statement expressing his fear during the first encounter with the victim is merely one evidentiary aspect of the requirement of reasonable belief that force was necessary to prevent imminent harm in the second encounter. See Ill. Ann. Stat., ch. 38, par. 7 — 1, Committee Comments, at 388-90 (Smith-Hurd 1972).

Defendant also points to his bad eyesight and the silhouetted hand holding the beer car. Poor eyesight does not mandate a self-defense instruction. (See, e.g., United States v. Wagner (9th Cir. 1987), 834 F.2d 1474 (notwithstanding defendant’s severely impaired eyesight and mistaken perception of an attacker advancing with a weapon, the court upheld the refusal of a self-defense instruction).) Moreover, defendant here does not even suggest that the victim was advancing on him.

Defendant notes Jeffries’ urging that the victim “hit him.” A bare statement of defendant that the victim might harm him is wholly insufficient to support a self-defense instruction. See People v. Carter (1988), 177 Ill. App. 3d 593, 532 N.E.2d 531.

I would find no evidence upon which a jury could conclude that defendant actually believed deadly force was necessary to prevent imminent death or great bodily harm. (See Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1; People v. Cannon (1988), 176 Ill. App. 3d 49, 530 N.E.2d 1035.) Defendant’s subsequent drawing of the gun was unreasonable, excessive and invalidated any possible claim of self-defense under Illinois law. (See People v. Carter (1988), 177 Ill. App. 3d 593, 532 N.E.2d 531; People v. McGee (1982), 110 Ill. App. 3d 766, 443 N.E.2d 1057; People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31; Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1.) Defendant could not have feared for his life, even unreasonably. A jury could not have viewed this as a situation requiring the use of deadly force for protection. No matter how we view the facts, turning them inside out and searching for any possible inference of self-defense, the testimony never changes. The victim offered no threat to defendant, who briefly left the scene to acquire, and returned to display, a loaded, cocked, deadly weapon.

The majority muddles this critical issue considerably by incorrectly insisting that the crux of this case lies in its finding that an accident theory may be raised as an alternative to a self-defense theory. I agree with the conclusion, but for a different reason, one which significantly affects the result of this case.

The majority, citing Robinson, proclaims that the accidental defense cases which have upheld the refusal of a self-defense jury instruction did so because there was no evidence of self-defense. That is not correct. In fact, the court in all of those cases, as here, found bare references to self-defense. However, the courts found the evidence wholly insufficient to permit the jury to be instructed on self-defense. The fact that the alternative defense happened to be accidental injury did not alter or affect the fact that there was simply insufficient self-defense evidence.

Thus, many Illinois cases which happen to involve an alternative defense theory of unintentional injury, such as accident, hold that defendant offered insufficient evidence of self-defense to support an instruction.

In People v. Bratcher, defendant testified that two police officers started beating him and stated they were going to “whip him,” and he struck the officer. The court found this “merest factual reference” to self-defense insufficient to support an instruction because defendant testified he was angry and automatically struck out at the officer.

In People v. Tanthorey, defendant testified that during a disagreement he threw up his hand to protect himself when the gun he held fired. Our supreme court held that the self-defense instructions were properly refused because defendant testified the killing was an accident.

In People v. Mitchell, defendant testified he fatally cut his wife’s neck after she attacked him. There was also some evidence that defendant made a statement that he intended to kill his wife. The court held that a self-defense instruction was properly refused, notwithstanding the bare factual reference to self-defense. The type of neck wound was not a typical wound inflicted in self-defense, and defendant testified the killing was an accident.

In People v. Holloway (1985), 131 Ill. App. 3d 290, 475 N.E.2d 915, defendant attacked the victim with a hammer, and the victim produced a gun. During the struggle, the gun fired twice. The court held that the self-defense instruction was properly refused because the entire defense was premised on accident, and on defendant’s lack of intent to kill.

In People v. Shelton, a codefendant testified that the victim grabbed, punched and kicked defendant, who ran away. He returned later and the victim again advanced, charging and carrying a raised bicycle. Defendant took a knife from his pocket and extended it in the victim’s direction, and the victim accidentally ran into the knife. The court upheld the refusal of a self-defense instruction because defendant testified that he did not intend to stab the victim, and that the victim accidentally walked into the knife.

In People v. McGee, a witness testified he saw the victim pull a knife toward defendant. The court upheld the refusal of an instruction because, following an argument, defendant left the tavern and returned 15 minutes later with a pistol. The court concluded that the victim presented no imminent threat to defendant at the time of the shooting.

In People v. Purrazzo, defendant testified that his wife threatened him and pointed a gun at him. He disarmed her, and the dog jumped on his arm, causing the gun to repeatedly fire accidentally. The court upheld the refusal of a self-defense instruction because defendant testified the shooting was accidental, and because the evidence failed to show the killing resulted from the threats or provocation that preceded it. (The majority here claims the acts of self-defense in Purrazzo “did not immediately precede the injury.” (184 Ill. App. 3d at 908.) On the contrary, defendant wrestled the gun from his wife and pushed her down on the couch immediately preceding the accidental firing of the gun when the dog jumped on his arm.)

In People v. Dzambazovic, defendant testified he struggled to get the gun, presumably to protect himself from being shot. No self-defense instruction was required. This court relied on defendant’s testimony that the actual killing was an accident.

In the present case, the evidence established that the victim died either as a result of defendant’s intention to kill him, which the jury found, or inadvertently when defendant bumped against the mailbox, which the jury rejected in finding defendant guilty of murder. There was no justification for giving a self-defense or voluntary manslaughter instruction.

The majority relies heavily on People v. Buchanan (1980), 91 Ill. App. 3d 13, 414 N.E.2d 262, and People v. Whitelow (1987), 162 Ill. App. 3d 626, 515 N.E.2d 1327. These cases offer weak support for such a jury instruction.

In Buchanan, not only were the instructions unchallenged, but the court in fact gave jury instructions on self-defense and voluntary manslaughter. The only issue was whether the trial court erred in excluding certain evidence of the victim’s reputation and character to support evidence that the victim was the initial aggressor.

Moreover, Buchanan is weak support for characterizing the present matter as a self-defense case. In finding error, the Buchanan court did note that the theory of an accidental shooting during a struggle did not negate the self-defense theory because the preceding events placed the shooting in a self-defense context. However, in contrast to the present case, the evidence in Buchanan disclosed that the victim angrily approached defendant, grabbed defendant’s car keys from the ignition to prevent escape, threatened defendant, hit him, and dragged him from the car. The victim was rushing toward defendant with his hand reaching into the pocket where he always carried a knife when defendant grabbed the victim’s gun from the car trunk. Defendant first fired over the victim’s head, and then accidentally shot the victim as they struggled over the gun. The present case involves no aggressive attack by the victim; no physical contact between the victim and defendant; no rush for a defensive weapon; no warning shot; and no struggle over the gun. Buchanan has little or no relevance here.

Similarly inapplicable is Whitelow, where defendant was involved in an argument outside a liquor store. One man held a broken bottle, and defendant grabbed an object from a third man to defend himself. He did not realize it was a gun. The gun accidentally discharged when he grabbed it, killing a fourth person. No such circumstances existed here. The evidence of self-defense found in Whitelow and Buchanan is not present here.

The majority shares the concern of many Illinois courts (see, e.g., People v. Joyner (1972), 50 Ill. 2d 302, 278 N.E.2d 756), about the distinction between self-defense, which requires intentional use of force, and an accidental or unintentional shooting. In Joyner, the court reversed a conviction because a voluntary manslaughter instruction was improperly omitted.

Many Illinois cases have dwelt on this issue and have expressly set forth a general rule forbidding these inconsistent theories. See, e.g., People v. Shelton (1985), 140 Ill. App. 3d 886, 489 N.E.2d 879; People v. Charleston (1985), 132 Ill. App. 3d 769, 477 N.E.2d 762; People v. Holloway (1985), 131 Ill. App. 3d 290, 475 N.E.2d 915; People v. Chatman (1982), 110 Ill. App. 3d 19, 441 N.E.2d 1292; People v. Purrazzo (1981), 95 Ill. App. 3d 886, 420 N.E.2d 461; People v. Dzambazovic (1978), 61 Ill. App. 3d 703, 377 N.E.2d 1077; People v. Johnson (1964), 54 Ill. App. 2d 27, 283 N.E.2d 283; see also State v. Hafeli (Mo. App. 1986), 715 S.W.2d 524.

As a general rule, however, inconsistent theories may be submitted to the jury. The United States Supreme Court recently held in Mathews v. United States (1988), 485 U.S. 58, 99 L. Ed. 2d 54, 108 S. Ct. 883, 887, that inconsistent defenses may be raised. The Court specifically noted that State cases support the proposition that a homicide defendant may be entitled to instructions on both accident and self-defense. (Accord United States v. Wagner (9th Cir. 1987), 834 F.2d 1474; People v. Bacon (N.D. Ill. 1982), 551 F. Supp. 269, 273, aff'd (7th Cir. 1984), 728 F.2d 874; People v. Robinson (1976), 44 Ill. App. 3d 447, 358 N.E.2d 43; People v. Whitelow (1987), 162 Ill. App. 3d 626, 515 N.E.2d 1327; People v. Stewart (1986), 143 Ill. App. 3d 933, 494 N.E.2d 1171; People v. Purrazzo (1981), 95 Ill. App. 3d 886, 420 N.E.2d 461; People v. Cruz (1978), 66 Ill. App. 3d 760, 384 N.E.2d 137; People v. Brooks (1985), 130 Ill. App. 3d 747, 474 N.E.2d 1287; People v. Smythe (1971), 132 Ill. App. 2d 685, 270 N.E.2d 431; see generally Annot., 15 A.L.R.4th 983 (1982); 4 Wharton’s Criminal Procedure §§545, 547, at 32, 34 (1976).) Thus, inconsistent defenses of self-defense and accident may be raised alternatively, but only where there is enough evidence to support each theory. The present case simply does not have sufficient evidence to support a self-defense instruction, and the majority evades the true nature of the issue on appeal by focusing on the question of conflicting defenses.

I believe that defendant was proved guilty of murder beyond a reasonable doubt; that the jury was properly instructed; that the trial court correctly denied defendant’s motion to suppress his statement; and that defendant was not denied a fair trial as the result of any prosecutorial comment. I also believe that the sentence imposed was appropriate. Consequently, I would affirm the judgment of conviction.

       Justice McNamara participated in this opinion prior to his assignment to the Sixth Division.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    HOWARD C. OVERBECK, Plaintiff-Appellant, v. JON CONSTRUCTION, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—87—2875
    Opinion filed June 20, 1989.

      Edward J. Kionka, of Murphysboro (W. Joseph Hetherington, of counsel), for appellant.
    Cassiday, Schade & Gloor, of Chicago (Richard Barrett, Michael Gallagher and Susan Seiwert, of counsel), for appellees Jon Construction, Inc., and The Alter Group, Ltd.
    Wildman, Harrold, Allen & Dixon, of Chicago (John Stalmack and David Kanter, of counsel), for appellee Shick Tube-Veyor Corporation.
    Modesto, Reynolds & McDermott, of Chicago (James Hynes, of counsel), for appellee A. Epstein & Sons, Inc.

      Aries, Hoyt & laden, of Chicago (William Waller, of counsel), for appellee Air Process Systems & Conveyors Company.
    Laughlin, Cunningham, Hare & Fanone, of Chicago (William Hare, of counsel), for appellee Bake-Line Products, Inc.
   JUSTICE HARTMAN

delivered the opinion of the court:

This appeal is from the circuit court’s order granting defendants’ motions for summary judgment as to count I of plaintiff’s second amended complaint, alleging that defendants violated the Illinois Structural Work Act (Ill. Rev. Stat. 1983, ch. 48, par. 60) (Act). Count II of the second amended complaint is a negligence count. Summary judgment was granted as to count I for the reasons that the ladder involved in the accident was not defective, the placement of the ladder did not violate the Act, and no violation of the Act proximately caused plaintiff’s injuries. The court denied summary judgment motions as to count II, which is pending, and found that there was no just reason to delay enforcement or appeal of the order.

Plaintiff contends that the pleadings and depositions establish factual issues as to whether the placement of the, ladder constituted a violation of the Act and as to whether that violation was a proximate cause of plaintiff’s injuries, thereby making the disposition of count I erroneous.

Plaintiff, electrician Howard C. Overbeck, employed by defendant Rossett Electric Co., was seriously injured on August 25, 1983, while working on the installation of electrical wiring in the Bake-Line Products plant being constructed by defendants in Des Plaines, Illinois. Defendants are the owner, architect and contractors of the project, a bakery plant.

On August 24, 1983, plaintiff and another electrician, Jim Patterson, were working under the supervision of the foreman of Rossett Electric Co., who instructed them to run conduit in the second floor of the bakery plant from the switch gear in an electrical panel in the wire room to machinery in the mixing room. The mixing room and wire room shared a common wall. The wire room was approximately 6 feet by 12 feet in dimension. A large table, which measured approximately 4 feet by 8 feet, was placed in the wire room partially blocking the door. Another workman used this table that day to do metering work unrelated to plaintiff’s electrical wiring tasks.

Plaintiff and Patterson began their work by making openings approximately V-k inches wide and six to seven inches apart from each other in the wall between the wire room and the mixing room. These openings were approximately 12 to 14 feet above the floor. Standing on the sixth or seventh step of an “A-frame” ladder, they first cut openings in the wire room wall and then went into the mixing room and continued making openings on that side of the same wall.

The electrical panel had already been installed on the wire room wall and was situated below the holes which plaintiff and Patterson made in the wall. The panel was about 8 feet high, 30 inches wide, and 8 to 10 inches deep. Plaintiff and Patterson were instructed to put the conduit and the wire into a disconnect switch in the panel. They tested the panel for voltage and determined it was dead. After punching holes in the panel to receive the conduit and the wire, they bent the conduit and ran it through the panel to the two machines in the mixing room. By the end of the work day on August 24, plaintiff and Patterson still needed to run more conduit into the machines’ control panel and pull more wire through the conduit.

On August 25, 1983, plaintiff and Patterson continued their work. The large table remained in the same position in the wire room, but the technician who had been working there the previous day was not present. The A-frame ladder which they used the day before was used again on the 25th. There were no defects in the ladder. Thé ladder was placed almost against the panel on the wall. The ladder’s legs were partially placed under the table because of the close dimensions of the wire room and the location of the table.

After plaintiff and Patterson finished running conduit, they began to run the wire through it. This was accomplished by the use of a “fish tape,” a device used to push and pull wire through the conduit. Patterson again tested the panel for voltage, finding it dead. Patterson began pushing the wire through the conduit with the fish tape, sending it from the machinery in the mixing room through the conduit, through the wall, and into the wire room.

The typical procedure for the electrical wiring task is for the electrician who is pushing the fish tape through the conduit to listen for the other electrician to tell him when to stop pushing and to feel the other electrician grab the fish tape. This informs the electrician pushing the wire that it has been received on the other side and that he should stop pushing it through. Patterson was to wait until plaintiff was ready on the receiving end before pushing the wire and the fish tape through the conduit. Plaintiff walked from the mixing room to the wire room.

As plaintiff entered the wire room, he squeezed between the table and the door, got around the table, and reached the ladder when he heard a noise, looked up and saw the tape coming through. At his deposition, taken December 15, 1986, the events which followed were described by plaintiff in answers to questions put to him by defendants’ counsel.

“Q. When the explosion occurred, had you already arrived up on the ladder and stabilized yourself?
A. I was up there, my hand was right in there.
Q. When you got up the ladder, you stated there was some wiggling or wobbling of the ladder.
A. I was coming on from the side, it wobbled.
Q. So at that point is when the wobbling occurred?
A. Yeah.
Q. Once you reached the — did you go all the way to the top of the ladder or just a step or two below?
A. I just went up a couple.
Q. When you got to that point in the ladder and stopped, did the ladder stop wobbling?
A. Yes, right.
Q. When you got to that point in the ladder, did you yell anything to Mr. Patterson or hear anything yelled by him to you?
A. I hollered to stop.
Q. Was there any indication by Mr. Patterson that he heard you?
A. Evidently he didn’t hear me.
Q. So when you got to the top of the ladder, were you able to see the fish tape coming through the conduit?
A. Oh, yes, yeah.
Q. When you were on the — when you stopped on the ladder, did you see it continuously coming through?
A. Well, I reached up there.”

Plaintiff was unable to reach the fish tape in time to stop its movement before the wire it carried hit a hot bus, causing an explosion. When the explosion occurred, plaintiff was thrown off the ladder and onto the floor. The ladder did not fall.

Plaintiff contends that the circuit court erred in granting summary judgment as to the Act, because the pleadings and depositions in the record raise genuine issues of material fact concerning defendants’ violation thereof and whether such violation was a proximate cause of plaintiff’s injury.

Plaintiff argues that whether a structural device is safe and proper under the Act is a question of fact to be decided by a jury; however, whether a plaintiff’s injury is directly related to the specific ultrahazardous risks protected by the Act initially is to be determined by the court. (Smyrniotis v. Brockob Construction Co. (1986), 142 Ill. App. 3d 340, 491 N.E.2d 1246.) The hazard of an explosion is not related to structural work (Clow v. Metropolitan Sanitary District (1983), 120 Ill. App. 3d 712, 714, 461 N.E.2d 40), nor are hazards of high voltage "wires and electricity. Smyrniotis, 142 Ill. App. 3d 340, 491 N.E.2d 1246; Kochan v. Commonwealth Edison Co. (1984), 123 Ill. App. 3d 844, 463 N.E.2d 921; St. John v. City of Naperville (1982), 108 Ill. App. 3d 519, 439 N.E.2d 12.

There is no claim in this case that the ladder upon which plaintiff was standing was defective. It did not move after he reached the top of the ladder. Plaintiff conceded, at his deposition, that once he got on the ladder “squarely, it balanced out and it was all right.” He admitted further that when he reached in the direction of the fish tape, the ladder was stable and did not move when he leaned inside the switch panel to get the fish tape. Plaintiff was supported by the ladder; its condition did not cause his injuries. They were caused by the electrical explosion which could have been prevented had Patterson not pushed the fish tape through the conduit before plaintiff was in position to guide it. This was a condition that had no connection "with the ladder.

Plaintiff nevertheless insists that the Act and the case law construing it require that the scaffold device must not only be safely constructed, but also placed and operated to give proper and adequate protection to the worker using it. Plaintiff emphasizes the presence of a table in the wire room, which required him to squeeze through the doorway and delayed his reaching the switch panel to catch the fish tape before the tape came in contact with the energized bus bar. He also claims that he was further delayed because the ladder was placed in such a way that he could not mount the first step of the ladder and had to swing his leg from the side of the ladder up to the second step. The placement of a ladder makes it defective only when the placement creates one of the hazards protected by the Act, which provides, in part, that a ladder must be placed to give adequate protection to those upon it. Ladder placement, therefore, goes to the issue of support.

Plaintiff testified at his deposition that he utilized the ladder in the same position on the previous day, August 24. In answer to a question of whether the ladder wiggled or moved in any way when he climbed it that day, plaintiff answered, “I was never in that much of a hurry to get up there, so it was fairly stable then.” (Emphasis added.) Because he was in a hurry on the day of the accident, the ladder wobbled as he climbed onto it; however, even then it stabilized before he reached the top and before the explosion. These facts do not establish a violation of the Act. To the contrary, the evidence demonstrates the ladder’s capacity to support him and does not create a question of fact as to whether there was a violation of the Act.

The issues presented here solely relate to alleged negligence. In this branch of the case the fact finders can consider the effect the placement of the table had upon the time it took for plaintiff to reach his position on the ladder. What also may be considered are whether Patterson started pushing the fish tape at the appropriate time, whether there are missed signals, the speed with which Patterson pushed the fish tape through the conduit and what effect, if any, these circumstances had upon the proximate cause of plaintiff’s injuries. They cannot be considered to have created a hazard protected against by the Act.

Cases relied upon by plaintiff reinforce defendants’ position that placement of the ladder goes to the issue of support. In McInerney v. Hasbrook Construction Co. (1975), 62 Ill. 2d 93, 338 N.E.2d 868, the placement of the ladder on a sloped driveway covered with dirt and debris caused the ladder to move, resulting in plaintiff’s fall. In Bishop v. Crowther (1980), 92 Ill. App. 3d 1, 415 N.E.2d 599, the placement of the ladder in an uneven and muddy area caused the ladder to slip, which caused the ladder to fall. In Zizzo v. Ben Pekin Corp. (1979), 79 Ill. App. 3d 386, 398 N.E.2d 382, plaintiff was injured when the ladder moved, causing him to sustain a back injury. In Mathieu v. Venture Stores, Inc. (1986), 144 Ill. App. 3d 783, 494 N.E.2d 806, a ladder placed against concrete panels moved, causing plaintiff then to jump from the ladder to his injury. In Ryan v. E.A.I. Construction Corp. (1987), 158 Ill. App. 3d 449, 511 N.E.2d 1244, a scaffold upon which plaintiff was working was placed against an improperly supported wall which collapsed, causing plaintiff to fall and land with debris dropping on top of him.

Plaintiff places considerable reliance upon a third district case, Brazier v. Kontos (1987), 160 Ill. App. 3d 177, 513 N.E.2d 152. There, plaintiff contacted electrical wires while descending from a ladder. Placement of the ladder affected plaintiff’s ability to climb down safely. In the present case, plaintiff was able to climb up and down the ladder safely and, on both August 24 and 25, he did so. The Brazier court cited only one case, Smith v. Georgia Pacific Corp. (1980), 86 Ill. App. 3d 570, 408 N.E.2d 117, on this point. In Smith, however, plaintiff was on a ladder which fell after he “jumped” it (moved the ladder a few inches while remaining on it), and the court there held the ladder to have been placed in an unsafe manner since its bases rested on railroad ties which were cracked and uneven. Further, the Brazier court did not address or distinguish the decisions of Kochan v. Commonwealth Edison Co. (1984), 123 Ill. App. 3d 844, 463 N.E.2d 921, and Smyrniotis v. Brockob Construction Co. (1986), 142 Ill. App. 3d 340, 491 N.E.2d 1246, first district cases which noted, as we do, the distinction between hazards protected by the Act and hazards which are not, i.e., electrocution, explosion, or tripping. We elect to follow first district cases which we believe were correctly decided. Bresland v. Ideal Roller & Graphics Co. (1986), 150 Ill. App. 3d 445, 457, 501 N.E.2d 830; Glaseo Electric Co. v. Department of Revenue (1980), 87 Ill. App. 3d 1070, 409 N.E.2d 511, aff’d (1981), 86 Ill. 2d 346, 427 N.E.2d 90.

Accordingly, we affirm.

Affirmed.

SCARIANO and EGAN, JJ., concur.

       Justice Egan participated in the decision of this case before his assignment to the sixth division.


author: PRESIDING JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RENA WELLS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—2401
    Opinion filed June 21, 1989.

      Michael J. Pelletier and Linda Signer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Edward Pacer, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, Rena Wells, was charged by information with two counts of delivery of a controlled substance, to wit, cocaine. After a jury trial in the circuit court of Cook County, in which she was tried jointly with Paul Harris, defendant was convicted of both counts and sentenced to two concurrent terms of six years’ imprisonment. She appeals.

On July 18, 1986, defendant was in the company of Harvey Harris (Harris), and a second unidentified male, when Andre Davis, a police officer working undercover for the Northeast Metropolitan Enforcement Group (MEG), purchased two ounces of cocaine from Harris in a parking lot of the Kickapoo Woods Forest Preserve.

On August 1, 1986, defendant was again in the company of Harris and his nephew, Paul Harris, when Davis purchased eight ounces of cocaine from Harris at the same location. However, on this date, Harris, Paul Harris and defendant were arrested after the transaction.

Prior to the start of defendant’s and Paul Harris’ trial, the State moved to consolidate the charges against defendant. The trial court granted the motion on the grounds that defendant would have to “run the gamut twice” if the two charges against her were tried separately. In view of its earlier ruling that the State would be allowed to introduce evidence of the July 18 transaction in a trial of the charge stemming from the August 1 transaction, the trial court also reasoned that defendant would not be prejudiced by a consolidation of the charges against her.

The State’s main -witness, Agent Davis, testified to the following. Having previously arranged with Harris to meet him there, Agent Davis and a team of officers from MEG drove to the Kickapoo Woods Forest Preserve on the morning of July 18, 1986, arriving there at approximately 10 o’clock. Shortly thereafter, a car driven by an unidentified male and containing Harris in the rear passenger seat and defendant in the front passenger seat pulled into the parking lot and parked five feet away from Davis’ car. After they pulled up, Agent Davis exited his car and walked to the passenger side of the other vehicle at Harris’ request. Defendant’s window was open at this time. Harris then displayed to Davis two clear plastic bags containing a white powder which had been wrapped in newspaper. Defendant, who was less than two feet away, was observing Harris and Davis. After displaying the bags to Davis, Harris stated that each bag contained an ounce of cocaine.

Davis then knelt down at the rear of the vehicle to test the contents of one of the bags. While he did so, defendánt was turned, facing the rear, in Davis’ direction. After testing the powder, Davis gave Harris $3,600 for the two ounces, or $1,800 per ounce, the price he and Harris had previously agreed upon. Harris handed the money to defendant and asked her to count it. While defendant was counting the money, Davis tested the contents of the second bag. When Davis finished testing the powder, defendant handed the money back to Harris and stated that “it was all there.” Thereafter, Harris told Davis that if he was satisfied with the cocaine, he and his supplier could sell him five or eight ounces more. Davis told Harris that he would contact him later that night to let him know. At this time, defendant was still sitting in the front passenger seat, about two feet away from Davis and Harris.

Davis called Harris, at about 3 p.m. that same day, and informed him that he would be willing to buy eight more ounces of cocaine in about two weeks. Harris then suggested “it be the same place and the same time.” On July 30, 1986, Davis called Harris after Harris paged him. Harris told Davis that he had the eight ounces of cocaine, that he wanted $14,000 for it, and suggested that they again meet at the Kickapoo Woods on August 1,1986, at 10 o’clock.

On August 1 at approximately 10 a.m., Davis and his team of MEG agents again went to the Kickapoo Woods parking lot. Five minutes later, a car driven by Harris and containing Paul Harris in the rear passenger seat and defendant in the front passenger seat arrived and parked five feet away from Davis’ car, facing the same direction. Harris exited his car, raised the front hood and walked over to Davis’ car. Davis and Harris met near the front of Davis’ car, less than five feet away from defendant and Paul Harris. Harris asked Davis if he had the money, Davis said “yes” and asked Harris if he had the cocaine. Harris responded “yes” and instructed Davis to walk to the rear passenger door of his vehicle. When Davis reached it, Harris told Paul Harris to give him “the bag.” At that time, Davis was standing right in front of defendant’s door. Codefendant handed Davis the bag and Davis asked if it was all there. Harris replied that it was and Davis told him he had to test it. Davis returned to his car and, while sitting in the driver’s seat, tested the white powder he found inside the bag. After testing the powder, Davis got out of his car and stood between the two cars with Harris and Paul Harris. Harris asked Davis for the money and Davis gave it to him. Harris then gave the money to defendant and asked her to count it. Davis then stood by defendant’s door and told her there was $7,000 and that he had another package of money. As defendant counted the money, Davis gave the other officers the arrest signal.

As the officers converged on the scene, defendant threw the money out of the car through the open driver’s door. When Davis identified himself as a police officer, Paul Harris ran around the rear of the car to the driver’s side and attempted to retrieve a revolver from the rear passenger seat but was arrested before he could do so.

Harvey Harris was the only witness for the defense. He testified that on July 18, he had gone to defendant’s home and asked her to go with him. However, Harris did not tell her where they were going or otherwise discuss their destination with defendant. Specifically, Harris did not tell defendant or the unidentified male with him that he was going to deliver drugs to someone. On that date, the drugs were covered with newspaper the entire time the three were in the car. Harris admitted asking defendant to count the money Davis had given him on July 18. However, while she told Harris how much money “was there,” she did not tell him that “it was all there.” After leaving the forest preserve on July 18, Harris did not discuss the sale of the cocaine with defendant nor did she ask him why she was counting the money for him.

Harris further testified that on August 1, he left his house with Paul Harris but did not tell him where they were going. They went to defendant’s home and Harris again asked her to go for a ride with him. When defendant told Harris that she had not yet fed her children, he said that they would be gone 15 to 20 minutes and would buy some food on the way back. Upon their arrival at the forest preserve, Harris parked his car next to Davis’ car. The cars were “close together.” Harris opened the hood of his car because there was steam coming from the engine. Lastly, Harris denied discussing, at any time, with defendant his drug dealing in general or discussing with her, on either July 18 or August 1, that he was going to sell drugs on those dates. He flatly denied that defendant had any such knowledge.

OPINION

On appeal, defendant contends the charges against her should not have been consolidated because they were not part of “the same comprehensive transaction” as that term is used in section 111 — 4(a) of the Code of Criminal Procedure of 1963, which establishes the requirements for joinder of offenses and defendants. (Ill. Rev. Stat. 1963, ch. 38, par. 111 — 4.) She reasons that: the July 18 and August 1 offenses “involved the sale of separate, discrete quantities of cocaine for a settled amount of cash”; the July 18 sale was completed when Harris received the $3,600 from Davis; the sales were two weeks apart; and nothing in the record suggests that the transactions were contingent upon one another or were part of an “overall plan *** to furnish an uninterrupted supply of drugs” to Davis (People v. Olson (1978), 59 Ill. App. 3d 643, 649, 375 N.E.2d 533). Finally, defendant argues that the consolidation severely prejudiced her because a jury trying the July 18 charge would not have heard evidence of the August 1 transaction.

We disagree with plaintiff that the July 18 and August 1 transactions were not part of the same comprehensive transaction. While the acts giving rise to the charges against defendant were performed two weeks apart, the mere passage or nonpassage of a certain amount of time is not determinative of whether charges are properly joined. (People v. Kinion (1982), 105 Ill. App. 3d 1069, 1073, 435 N.E.2d 533, cert. denied (1983), 460 U.S. 1014, 75 L. Ed. 2d 484, 103 S. Ct. 1256; People v. Hyche (1978), 63 Ill. App. 3d 575, 578, 380 N.E.2d 373.) Moreover, while the two transactions may have been completed on their respective dates, we disagree with defendant that they were not contingent upon one another and that they were not part of an overall plan to furnish an uninterrupted supply of drugs to Davis.

Agent Davis testified that, on July 18, Harris offered to sell him additional quantities of cocaine if he was satisfied with the cocaine purchased on that date. This evidence revealed that, contrary to defendant’s assertion, any future sales of cocaine from Harris to Davis were contingent, as far as Harris was concerned, on the quality of the cocaine supplied on July 18. This evidence also revealed an overall plan to furnish a continuing supply of cocaine to Davis, when coupled with Davis’ testimony that Harris suggested later on the 18th that the next sale take place at the same place and time as the July 18 sale, that Harris paged Davis on July 30 to tell him he had the additional cocaine and again suggested they meet at the same place and time as on July 18. Cf. People v. Olson (1978), 59 Ill. App. 3d 643, 375 N.E.2d 533 (refusal to join two charges of delivery of cocaine on two separate dates with a charge of selling marijuana on a third date was not an abuse of discretion where, although all deliveries were made to same police officer, each delivery was made on a completely separate occasion, was independent of others and was not part of an overall plan to furnish an uninterrupted supply of drugs to officer).

As defendant notes, the trial court never determined whether the two transactions were part of the same comprehensive transaction. The trial court merely determined that she would not be prejudiced by consolidation-of the charges since it had ruled that the State could use evidence of the July 18 transaction to prove her guilt with respect to the August 1 transaction. Notwithstanding the trial court’s failure to address section 111 — 4, we find no prejudice to defendant in view of our determination, from the record, that the two transactions were part of the same comprehensive transaction.

We also disagree with defendant that the consolidation of the charges against her was error merely because it created the possibility that the jury might infer that she had a propensity to commit the July 18 offense from the evidence of the August 1 transaction. In this regard, we also disagree with defendant that evidence of the August 1 transaction would have been inadmissible in a separate trial on the July 18 offense, because it was irrelevant to defendant’s knowledge and intent on the earlier date.

In People v. McKibbins (1983), 96 Ill. 2d 176, 185, 449 N.E.2d 821, cert. denied (1983), 464 U.S. 844, 78 L. Ed. 2d 136, 104 S. Ct. 145, the court noted that other crimes evidence is admissible where two offenses are so similar “that evidence of one offense tends to prove the defendant guilty of the offense charged.” The court also noted that general similarities between a charged offense and another offense in which the defendant was involved, while insufficient to allow use of the latter as proof of the commission of the former, were sufficient to allow use of the latter to establish the necessary criminal intent of the defendant in the offense charged. Accordingly, the court held that, where the defendant professed a nonparticipatory involvement in a robbery-murder, evidence of his involvement in a similar robbery just two days later with the same companions as he had on the day of charged offense could be used to establish his participation therein with the necessary criminal intent.

Defendant distinguishes McKibbins on the ground that, while the active participation of the McKibbins defendant in the later robbery evinced an unambiguous criminal intent on that occasion, defendant’s actions on August 1 were no more revealing than her actions on July 18. We find defendant’s attempt to distinguish McKibbins unavailing. In focusing upon the differences in the McKibbins defendant’s participation in the robbery-murder, of which he was convicted, and in the later robbery, defendant ignores that is the similarity of offenses, not their differences, which allows use of one to prove guilt of the other. This is because the similarity “increases the relevance of the evidence and ensures that it is not being used solely to establish the defendant’s criminal propensities.” People v. Bartall (1983), 98 Ill. 2d 294, 310, 456 N.E.2d 59.

Bartall and McKibbins thus conclusively reveal that it is the similarity of offenses, not their differences, which makes evidence of one admissible to prove another. Moreover, with respect to the relevancy of defendant’s August 1 offense to the July 18 offense, while the earlier offense, “standing alone, might have some, ambiguity about it, the two incidents, taken together, increase the certainty that the defendant” acted deliberately in committing the July 18 offense. (Bartall, 98 Ill. 2d at 311-12.) McKibbins and Bartall also establish that evidence of the August 1 transaction was admissible, in a prosecution of the offense stemming from the July 18 transaction, to establish defendant’s knowledge and criminal intent with regard to that transaction. Being competent for that purpose, it was not inadmissible merely because it also might tend to show defendant’s propensity to commit crime. Therefore, the rule that joinder of charges constitutes error where a defendant is prejudiced thereby (People v. Edwards (1976), 63 Ill. 2d 134, 345 N.E.2d 496) did not prohibit consolidation of the charges against defendant.

Defendant also contends that repeated instances of improper closing argument by the prosecutors denied her a fair trial. Defendant first asserts that the assistant State’s Attorneys misquoted Harris five times as having admitted that defendant did state that it was “all there” after she counted the money for Harris at the July 18 transaction.

Harris was questioned and testified as follows regarding what defendant said to him after counting the money at the July 18 transaction:

“Q. And she told you how much was there, didn’t she?
A. Yes, sir, she did.
Q. She did say that, didn’t she?
A. Yes, sir, she told me how much was there.
Q. And how much — did she say it was all there?
A. No, she did not say [it] that way.”

In closing and rebuttal argument, the prosecutors stated:

“And you heard how she counted the money and handed it back to [Harris] *** and say something to that effect ‘it’s all there.’
And you didn’t hear that only from Andre Davis you also heard it from [Harris] who also testified in this case.
* * *
[Harris] gave her the $3600 to count on *** July 18th and she thumbed through it *** and handed it to [Harris] and said, ‘It’s all there,’ or words to that effect according to what Harvey says.
* * *
Unfortunate Rena Wells who says on July 18, 1986, after counting $3600, ‘It’s all there.’ How does she know that it’s all there unless she knows what’s going on? What’s going on in the drug transaction. Why would she say that? And make no mistake, ladies and gentlemen, that evidence is uncontradicted. You heard it from Agent Davis and you heard it *** when [Harris] finally admitted yeah, she said something like that.
* * *
Remember how [defendant’s attorney] *** was asking Agent Davis about [defendant] saying it’s all there? ***
*** Remember when [Harris] *** finally admitted *** yes, she did say that?
* * *
[Defendant’s attorney] says again that Agent Davis was lying about the ‘it’s all here statement!]’ that [defendant] makes after counting the money.
And that’s an important piece of evidence. But what he failed to tell you, what he failed to explain away is that even [Harris] admitted *** that that was true.”

The State asserts that Harris’ response that defendant “did not say [it] that way” when asked whether she had said it was “all there” was merely a conditional denial and could properly be interpreted to mean that defendant did make a statement similar to “it’s all there.” Therefore, the State concludes that the first four references to Harris’ testimony, regarding what defendant said to him on July 18, were proper comments on the evidence and that the fifth was not material to her conviction. Alternatively, the State argues that, even if the last two characterizations of Harris’ testimony were improper, they did not constitute reversible error.

Contrary to the State’s argument, Harris’ testimony could only be interpreted as meaning that defendant told him the amount of money which Davis had given him but did not tell him that it was all there. It was not merely an unconditional denial that defendant had said “it’s all there.” It could not be reasonably interpreted as meaning that she said something similar to that or to that effect, as the prosecutors stated the first two times. And it most certainly could not be interpreted as an admission that she did say that, as they argued the last three times they referred to it. As such, the prosecutors’ arguments, without exception, were an improper characterization of Harris’ testimony.

This fact notwithstanding, we do not believe that defendant is entitled to a new trial. As the State asserts, defendant did not object to these or the other statements during the State’s closing arguments of which she now complains, with one exception, nor raise them as grounds for a new trial in her post-trial motion. As such, she has waived any error in these arguments for purposes of appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988),_U.S___ 102 L. Ed. 2d 263, 109 S. Ct. 274.) Moreover, because the evidence of defendant’s guilt was not closely balanced and because we do not find the alleged errors of such magnitude that they denied defendant a fair trial (People v. Pugh (1982), 106 Ill. App. 3d 901, 436 N.E.2d 737), the arguments do not rise to plain error. (107 Ill. 2d R. 615.) In People v. Eddington (1984), 129 Ill. App. 3d 745, 473 N.E.2d 103, the court stated, in dicta, that a change in the meaning of a conversation between a witness and the defendant in the prosecutor’s closing argument was a misstatement of evidence which, in a close case, could be error. (Eddington, 129 Ill. App. 3d at 780.) Contrary to the situation in Eddington and defendant’s assertion in relying upon the plain error doctrine, this was not a close case.

Defendant asserts that the evidence was closely balanced on the central issue of defendant’s intentions. However, even assuming that defendant did not say “[Ijt’s all there,” after she counted the money for Harris on July 18, which reasonably could be interpreted as evidencing prior knowledge of Harris’ intent to sell drugs and his price therefor, defendant’s argument ignores the record evidence of the July 18 sale and the reasonable and logical inferences therefrom. As that evidence and the inferences therefrom amply supported a finding of defendant’s guilt of the July 18 offense, the mischaracterization of Harris’ testimony did not rise to plain error. People v. Bracy (1986), 152 Ill. App. 3d 566, 504 N.E.2d 764.

Agent Davis testified that, when he walked up to the auto in which Harris, defendant and the unidentified male arrived at the forest preserve parking lot on July 18, defendant’s window was open. And, when Harris displayed to Davis the two clear plastic bags containing a white powder, defendant, who was in the front passenger seat less than two feet away, was observing them. Moreover, after displaying the bags to Davis, Harris stated that each bag contained an ounce of cocaine. Then, while Davis tested the contents of one of the bags, defendant was turned facing in Davis’ direction. When Davis gave Harris some money after testing the powder, Harris handed it to defendant and asked her to count it. This defendant proceeded to do and while she was doing so, Davis tested the contents of the second bag. When Davis finished testing the powder, defendant handed what she then knew to be $3,600 to Harris and told him, according to Harris, the amount of the money. Finally, while defendant was still in the front passenger seat about two feet away from Harris and Davis, Harris told Davis that if he was satisfied with the cocaine, he and his supplier could sell Davis five or eight ounces more and Davis responded that he would call him later that night to let him know.

This evidence conclusively reveals, whether directly or inferentially, and contrary to defendant’s protestations of an abiding ignorance of what Harris was up to, that she must have known that he was selling illegal drugs, specifically cocaine, no later than the point in time when she agreed to count the money Davis had given him. Defendant was not required to prove herself innocent. However, in the face of this evidence, we believe that she was obligated to come forward with some evidence that she did not hear that which she most reasonably could be assumed to have heard, unless she were profoundly deaf, and that she did not see that which she most reasonably could be assumed to have seen, unless she were totally blind. Instead, this evidence remained uncontradicted and unimpeached and, in fact, was at least partially corroborated by Harris.

Having realized by the time that Harris handed her the money received from Davis that Harris was selling drugs, defendant did not protest, for instance, that she wanted no part of what was going on or had no idea what Harris was going to do. Instead, she agreed to count the money and did so while Davis again tested a white powder Harris had already identified as cocaine. This conduct of defendant, after seeing and hearing what the jury could reasonably infer she had seen and heard, met the requirements of legal accountability, on which the jury was instructed, for the July 18 offense beyond a reasonable doubt. That is, by counting the money after learning what she had, she clearly aided Harris in the commission of what she then had to know was a criminal offense with the necessary intent, viz., to facilitate its commission. (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2.) In view of the overwhelming evidence supporting this conclusion, the prosecutors’ misstatements of Harris’ testimony did not rise to plain error. See People v. Hudson (1985), 137 Ill. App. 3d 606, 484 N.E.2d 1246.

Defendant also asserts that the prosecutors improperly: (1) argued Harris was a wholesaler of drugs, not just a street dealer; (2) in this regard, referred to evidence of the purity and street value of the cocaine sold to Davis; (3) referred to media portrayals of the manner in which drug dealers operate; and (4) emphasized the danger to police officers when arresting drug dealers generally and, by referring to Paul Harris’ attempt to use a gun on August 1, in this case specifically.

In view of the overwhelming evidence of guilt as to the July 18 offense and the fact that it supported, as a reasonable inference therefrom, a finding that defendant participated in the August 1 sale with the necessary criminal knowledge and intent, the remaining improprieties alleged in the prosecutors’ closing arguments also fail to rise to plain error. They were not a material factor in the jury’s verdicts. See People v. Davis (1976), 38 Ill. App. 3d 411, 347 N.E.2d 818; People v. Delk (1976), 36 Ill. App. 3d 1027, 345 N.E.2d 197.

For all of the foregoing reasons, defendant’s convictions are affirmed.

Affirmed.

RIZZI and CERDA, JJ., concur.