author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY YEARGAN et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1—88—2820, 1—88—2821 cons.
    Opinion filed April 20, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Lisa Ottenfeld and Vicki Rogers, Assistant Public Defenders, of counsel), for appellants.
    Cecil Partee, State’s Attorney, of Chicago (Bonnie Meyer Sloan, Special Assistant State’s Attorney, and Renee Goldfarb and David Rosenfeld, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Following a bench trial, defendant Jeffrey Yeargan was found guilty of five counts of criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(a)(1)) and one count of unlawful restraint (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 3(a)) and sentenced on two counts of criminal sexual assault to concurrent terms of seven years’ incarceration. Pursuant to the same proceeding, codefendant Gregory Thompson was found guilty of four counts of criminal sexual assault and one count of unlawful restraint and sentenced to five years’ incarceration. Defendants appeal contending that they were not proven guilty beyond a reasonable doubt. Yeargan raises the additional issue of whether he was impermissibly convicted under the criminal sexual assault statute for an act the statute does not proscribe. We reverse.

At trial, complainant, age 27, testified that she was born with mostly female organs, but also had a male sex organ, a scrotum. In April 1987, she did not have a vaginal opening but had an urethra coming from her bladder, which enabled her to urinate. Complainant has no children and is divorced.

On April 18, 1987, at approximately midnight or shortly thereafter, she left her sister’s home on Kildare, north of Fullerton Avenue in Chicago, with her dog, a four- to five-year-old “collie-shepherd,” to go to her home. On the way, she stopped at a nearby 7-Eleven store to purchase dog food and groceries.

While walking home on Fullerton from the 7-Eleven Store, complainant encountered two men in a 1972, light-blue, two-door car parked at the curb. The person seated in the passenger seat called her over to the car. She identified that person as defendant Yeargan; she also identified defendant Thompson as “looking like” the other man seated in the driver’s seat. She testified that both men asked her for a “head job.” When she declined, they asked again. She again refused.

After this encounter, she continued towards home. She walked about one-half block when she noticed that the two men were following her. She started walking faster and headed towards a corner gas station. She cut through the gas station and entered a “T” formed by the alley that runs behind her house and the gas station. There, she was grabbed by the defendants on her arms. She asked defendants to let her go but they would not. Defendants forced her to walk half-way down the alley and into an open garage containing a parked car on one side.

Inside the garage, Yeargan asked her to remove her jacket and she complied. After she refused to remove her shirt and bra, Yeargan forced it off, stating they would hurt her if she did not do what they told her. Both defendants removed her pants, and Yeargan then told her to get on her hands and knees. She complied.

Yeargan then got in front of her, pulled her head up by her hair and put his penis in her mouth. Meanwhile, Thompson was behind her attempting to put his penis in her “bladder” (her urethra), the opening she has where a vagina would normally be. He then put his penis in her anus, which hurt her. Yeargan ejaculated in her mouth and she spit out the seminal fluid.

After Yeargan ejaculated, defendants switched places. Thompson pulled her hair up and put his penis in her mouth while Yeargan put his penis in her “bladder” and rectum. Thompson ejaculated and she spit it out. Yeargan then returned to her front and placed his penis back in her mouth. At this time, Thompson put on his pants and left the garage. Yeargan ejaculated in her mouth and she again spit it out. Yeargan then unsuccessfully attempted to place his penis in her rectum. Yeargan next proceeded to put his penis in her “bladder,” ejaculating “some inside and some outside.”

After Yeargan removed his penis from her “bladder” he stated, “Did that feel good, bitch?” He then dressed, exited the garage, and walked back towards the bar. She testified that she hurriedly dressed and secretly followed Yeargan from a short distance. As defendants were about to drive away, she wrote on her hand, from a one-half block distance, the license number of the car from which defendants had exited earlier. She also noticed that her blue lighter was missing. She identified in court a photograph depicting her hand, various photographs depicting the scene of the alleged assault, and a lighter which she claimed was the one taken from her.

After defendants drove away, she returned to get her dog and then went to the nearby gas station where she called the police. When the police arrived, she told them what happened, showed them her hand, and gave them a description of defendants’ car. While not remembering the exact order of occurrence, she testified that she showed the officers the garage where the assault occurred and also took her dog and groceries to her home. At home, she told her aunt that she was going to the hospital. On the way to the hospital, she saw the defendants and identified them for the officers.

Counsel for Thompson and Yeargan both cross-examined complainant. During Thompson’s cross-examination, complainant testified that there was a tavern where the defendants’ car was parked. Although she was scared when they started to follow her, she did not go into it or the nearby gas station or telephone the police. Rather, she went home the way she always went, by way of the alley. At the “T,” defendants grabbed her by her arms, which were bent at the elbows against her body, and walked her one-half block to the open garage.

Complainant admitted that when she was grabbed, she did not scream, shout, fight back, drop her groceries or let go of the dog’s leash. However, she did tell her dog without success to attack defendants. Complainant explained that her dog was a friendly dog which had never bitten anybody and which liked to be “petted a lot.” Before entering the garage, complainant complied with defendants’ request that she tie up the dog outside.

Complainant testified she was 5 feet 8 inches tall and weighed 180 pounds. Neither defendant had a weapon, nor did any defendant strike her, push her to the ground or physically harm her. Complainant testified she suffered no bruises or lacerations although she was threatened with physical abuse.

During cross-examination, Thompson questioned complainant about the number of ejaculations. Complainant testified:

“Q. Tracey, isn’t it true that you testified that Mr. Thompson ejaculated in your mouth twice?
A. Yes, sir.
Q. Isn’t true that your testified that Mr. Yeargan ejaculated in your mouth four times?
A. Three and I didn’t say—
Q. Three times? Did anyone ever — Isn’t it true that you testified that they ejaculated in your anus?
A. Yes.
Q. And isn’t true that you also testified that one of the defendant’s ejaculated in your urethra?
A. Yes. And also had a rubber on.
Q. Now who had the rubber on?
A. I think it was he.
Q. Which one is he?
THE COURT: Who are you pointing to?
A. (Pointing).
THE COURT: Record would indicate the witness has pointed to Mr. Thompson.
BY MR. TROMBETTA [Defense attorney]:
Q. What did he do with that rubber?
A. After he put in on I felt the rubber. It feels a like a rubber bag. He put it inside. I don’t know which part. The rectum or the bladder. And it hurt.
Q. He did that with the rubber on?
A. Yes, sir.
Q. Did he ejaculate?
A. I couldn’t tell because with the rubber.
Q. But you did state that he did ejaculate with the rubber on before?
A. I’m sorry, what?
MR. BABRARO [Assistant State’s Attorney]: Objection.
THE COURT: You may answer that question. Did you say that he ejaculated with the rubber on before?
A. That was the only time he had that rubber.
Q. Wasn’t true that you first testified that Mr. Yeargan had the rubber on?
A. I don’t know who had the rubber on. All I remember is it was him. I got a slow mind and I can’t remember that good anyway.
THE COURT: Indicating Mr. Thompson.”

Regarding her disability, complainant explained that she suffered from a mental disability which caused her to have memory problems and a slow mind. She explained that she was in special education until she was 21 years old and that she was on “SSI” for her disability or handicap. Complainant did not explain the source of her handicap or disability.

On cross-examination by Yeargan, complainant testified that she was fearful for her life after she noticed she was being followed. She admitted she could have stayed on Fullerton rather than going home by way of the alley. She testified she did not place a telephone call to the police when she was being followed because she did not want to put down her groceries and have them stolen. Complainant did explain, however, that her street has no street lights and the alley route to her home is shorter and is the normal route she takes home from her sister’s.

Yeargan also examined complainant regarding the details of the assault. She again testified that first Yeargan and then Thompson ejaculated in her mouth. Complainant then testified that, “as far as [she] knew,” Yeargan ejaculated in her rectum or bladder. Complainant then testified:

“Q. Then again you testified they switched for the third time, is that correct?
A. The third time he left. (Pointing.)
THE COURT: Indicating Mr. Thompson.
MR. VENIT [Defense attorney]:
Q. And Mr.—
A. The other guy stayed.
Q. And Mr. Yeargan stuck his penis in your mouth for the third time?
A. Yes, sir.
Q. And for the third time he ejaculated in your mouth for the third time, is that correct.
A. Which one?
Q. Mr. Yeargan.
A. Yes.
* * *
Q. Now your are testifying that Mr. Yeargan came three times in your mouth and twice in your bladder?
A. You ain’t getting what I’m saying. He came three times in my mouth. He came twice in my mouth.
THE COURT: Indicating Mr. Thompson.
A. And he came also in my rectum and the bladder.
MR. VENIT [Defense attorney]:
Q. You’re indicating Mr. Thompson, is that correct?
A. Yes. I can’t remember everything. Then he also came in my rectum and the bladder.
Q. This was—
THE COURT: Indicating Mr. Yeargan.
MR. VENIT [Defense attorney]:
Q. And this was a period of what took how long?
A. I guess about 15 or twenty minutes. That’s what I guessed it.
Q. So within 15 or twenty minutes Mr. Yeargan came four times or ejaculated in your mouth or your rectum four times?
A. Three times in my mouth, I told you, and about twice to him.
Q. Now twice — Only twice to Mr. Thompson now?
A. You getting me confused.
THE COURT: The witness is confused. Please ask another question.”

Officer David Jezioro testified that on April 18, 1987, at about 1:20 a.m., he received a radio assignment to see a “rape victim at Kostner and Fullerton.” When they arrived, they met with complainant, who was upset and confused and who appeared disheveled and dirty. The victim showed Jezioro her hand on which was written letters and numbers that she said represented the license plate number to a light-blue Oldsmobile. The victim described the two men as white with the taller one having blond hair (Thompson) and a beard and the shorter one having darker hair, a moustache and wearing a red shirt (Yeargan). Both men had on blue jeans. Jezioro testified that the gas station where he met complainant was closed.

Officer Jezioro immediately broadcast a flash message over the radio regarding the suspects. The officers then took complainant to her home to drop off her groceries and dog and then proceeded to the garage where the assault took place. Upon arriving at the garage, Jezioro immediately noticed what appeared to be a used condom and a condom package. There were also two small puddles of what appeared to be semen. Jezioro called for an evidence technician and a one-man patrol to guard the scene.

The officers then responded to a call over the radio. As the officers and complainant were driving there, and as they approached an intersection, complainant shouted from the rear seat, “that’s them,” and pointed to the defendants. The officers then took complainant to the hospital.

On cross-examination, Officer Jezioro testified that at the scene of the crime complainant told him that Thompson had assaulted her first. She told Jezioro that Thompson stuck his penis in her mouth and grabbed her hair while Yeargan was behind her. The defendants then switched places, with Yeargan in front and Thompson behind. Thompson then left the garage. Complainant also told Jezioro that after the assault, she hurriedly dressed and rushed back to where the car was parked where she obtained the car’s license plate number.

Jezioro testified that he did not notice any cuts, bruises or welts about the complainant’s face or body although she complained of pain and her clothing was disheveled. Jezioro admitted that he did not know whether complainant always dressed the way she first appeared to him.

Detective Peter Arpaia testified that on April 18, 1987, at about 1:15 or 1:20 a.m., he and his partner received a call to proceed to 4401 West Fullerton, where he observed a marked vehicle with two officers and a woman seated in the rear. He had a conversation with the officers, and he and his partner began to tour the area for the offenders and their vehicle.

Arpaia located an unoccupied vehicle matching complainant’s description near 5000 West Armitage in Chicago. The officers waited for about 10 to 15 minutes until the two men, later identified as defendants, walked to the vehicle. Defendants talked for a couple of minutes and then Thompson got in the car and drove away. Arpaia stopped Thompson and arrested him and then arrested Yeargan. When the other officers arrived with complainant, she positively identified defendants and said that one of them had taken her blue Bic lighter. The lighter was found in Thompson’s possession.

On cross-examination, Arpaia testified that complainant told her that Thompson was the first one to assault her orally. She said that at this time Yeargan was behind her fondling her and she may have said that he anally attacked her. He saw two puddles of fluid on the garage floor.

The parties stipulated that Dr. Beringer, an expert in the field of emergency medicine at John F. Kennedy Hospital, would testify that he examined complainant in the early morning hours of April 18, 1987, and concluded that complainant was an hermaphrodite. She had female chromosomes, no vaginal opening, and had been born with a scrotum. Through a series of childhood operations complainant had a labia formed. Beringer conducted an examination of her urethra and there were no tears, lacerations, bruises or abrasions. He conducted a rectal examination and, while tender, there were no cuts, abrasions or bruises.

The parties stipulated that Christine Anderson, an expert in the field of serology, would testify that the condom recovered from the scene did not contain semen. Tests taken from the victim’s urethra, anus and mouth did not reveal the presence of semen.

The parties also stipulated that Chicago police officer Patterson would testify that a palm print taken from the car in the garage matched that of Yeargan. Patterson would further state that a second palm print from the garage matched the palm of Thompson.

Defendant Yeargan testified that on Friday, April 17, 1987, he took the bus to a Chicago bar, the Fill Up Station, where he arrived at 9:30 p.m. Many of his friends were at the bar, including Thompson, whom he had known since grammar school. About 10:15 p.m., he and Thompson went outside to smoke marijuana. As he was rolling the cigarette, a woman with a dog and groceries approached Thompson’s car. Yeargan rolled down the window, and the woman said that for $5 each she would give them a “blow job.” In response to where this would occur, the woman told defendants that they would go to her house located a short distance away.

Yeargan and Thompson exited the vehicle, and Yeargan noticed that the woman had a dog and a bag of groceries with her. They walked with her towards the west on Fullerton’s south side, crossed Kostner, and then entered a “T” in an alley by cutting through a gas station. As they were walking toward Belden smoking the cigarette, the woman said that they could not go to her house because someone was home. Complainant suggested a garage on the alley as an alternative.

Defendants followed the woman to the garage. There, the woman pulled Thompson into the garage first. By this time, only 10 minutes had elapsed from the initial conversation. Five minutes later, Thompson came out and the woman motioned for Yeargan to enter. Yeargan was concerned about the dog and the woman quieted the dog down, calling him “Bear.” The woman, while kneeling, then performed fellatio on Yeargan as he leaned up against the car for comfort. He could not remember if she spit out or swallowed the semen. This was the only way they had sex and the woman remained clothed the entire time.

After having oral sex with Yeargan, the woman asked for her money. Yeargan told her that Thompson must have gone back to the bar, and because he did not want to pay for both of them, Yeargan and the woman walked back together to get money from Thompson. Yeargan walked inside the bar and walked up to Thompson and told him that the woman wanted her money. Thompson replied that if she came into the bar, he would give her the money, but he was not going to walk outside to give it to her. Yeargan decided that he too would not pay unless she came into the bar. Yeargan noticed her standing next to the car for about 30 minutes to an hour, but she never entered the bar.

Yeargan left the bar at about 12 a.m. with a friend and went to the Boardwalk, a bar on Armitage. Yeargan left the Boardwalk at 2 or 2:10 a.m. and saw Thompson out in front talking to some people. Yeargan asked Thompson for a ride, but Thompson refused. Yeargan then waited by Thompson’s car and again asked him for a ride. Thompson again refused, entered his car and then drove away. Yeargan saw the detectives follow Thompson; five minutes later the police drove up.

After he was arrested, the officers asked Yeargan whether he had sexual relations with complainant. He denied that he did because he was not thinking about the encounter in the garage. When he was being arrested, it dawned on him that the woman must have called the police. Yeargan said that at the police station he told the police what happened, but denied telling them that he had vaginal or anal intercourse with complainant.

A stipulation was entered that if Miss Sharon Medrys were called to testify, she would state that she was a registered nurse who, on April 18, 1987, at approximately 2:30 a.m., had a conversation with complainant. Complainant told her that she was assaulted at approximately 11:30 p.m. to 1 a.m. by her blond assailant (Thompson), who first penetrated her rectum using a condom; that she believed both men ejaculated; and that both men forced her to perform oral sex and they both ejaculated. Complainant denied any complaints of pain and stated that her assailants had not beaten her but had pulled her hair and threatened her. The victim also told Miss Medrys that she was in no distress.

In rebuttal, Detective Edmond Hook testified that on April 18, 1987, at about 5:20 a.m., he spoke with Yeargan. Mook informed Yeargan that he had been arrested for sexual assault. Yeargan denied any involvement in the act at first, but later he admitted that he had engaged in oral copulation with complainant. Later, Yeargan admitted to anal intercourse and to what he then thought was vaginal intercourse.

At the close of the evidence, the court, sitting as trier of fact, found defendants guilty of rape. The dispositive issue on appeal is whether defendants were proven guilty beyond a reasonable doubt.

Our review of defendants’ sufficiency argument is governed by the recent Illinois Supreme Court case of People v. Schott (1991), 145 Ill. 2d 188. In Schott, the court abandoned the clear and convincing standard traditionally applicable to sex offense cases and replaced it with the beyond-a-reasonable-doubt standard. The court stated:

“We find that where the evidence is claimed to be insufficient on review, regardless of the nature of the evidence, the reasonable doubt test set forth in [People v. Collins (1985), 106 Ill. 2d 237,] should be applied. According to Collins, 106 Ill. 2d at 261, criminal convictions are not to be overturned on review unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. The test to be employed on review ‘ “is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ (Emphasis in original.) Collins, 106 Ill. 2d at 261, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.” Schott, 145 Ill. 2d at 203.

As Schott makes clear, we must affirm this case if, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Here, after careful review of the evidence, we are left with the firm belief that the night’s events either transpired as defendants allege or, alternatively, if they occurred as charged, the State has failed to prove its case beyond a reasonable doubt.

Doubt as to defendants’ guilt has many sources in this case. First, aside from one piece of physical evidence, little or no physical evidence exists to support complainant’s testimony. In this regard, much of the physical evidence is as consistent with Yeargan’s testimony as it is with complainant’s. Second, a careful review of the evidence yields numerous areas of doubt which, when taken together and not alone, shed significant doubt on complainant’s testimony. Finally, a close analysis of complainant’s testimony regarding the number of ejaculations which allegedly occurred during the assault yields another area of significant doubt.

We first address the physical evidence in this case, both as to how the presence of some physical evidence corroborates complainant’s testimony, and as to how the absence of other evidence which should reasonably be present simultaneously undermines complainant’s testimony.

The most significant piece of physical evidence in this case to corroborate complainant’s testimony is the presence at the scene of an unraveled condom and its packaging. Complainant testified that Thompson wore a condom during one of the assaults. On the other hand, Yeargan testified that the only sexual activities which occurred were two acts of oral copulation. The condom is significant because it supports complainant’s testimony and simultaneously undermines defendants’ claimed version of the night’s events. While Yeargan was not given the opportunity to explain away the condom, and Thompson did not testify at all in this case, the presence of the condom corroborates complainant’s testimony.

Notwithstanding the presence of the condom and its evidentiary value, however, we believe that it alone cannot compel affirmance especially where the other physical evidence in the record and the unexplained absence of other physical evidence which should be present compels reversal with equal fervor.

For example, complainant testified that she was physically restrained in the alley, that her clothing was forcibly removed, and that she was then sexually assaulted numerous times. No physical evidence exists to support this testimony: neither her clothing was torn in any manner nor did her person exhibit signs of physical abuse. The absence of this evidence would suggest that the night’s events occurred consensually as defendants urge. See People v. Wright (1986), 147 Ill. App. 3d 302, 321, 497 N.E.2d 1261, 1273 (rape conviction reversed where, inter alia, complainant’s claim of physical confrontation not corroborated by expected presence of torn clothing or physical harm to person); People v. Green (1986), 140 Ill. App. 3d 35, 40-41, 487 N.E.2d 1270, 1274 (rape conviction reversed where, inter alia, little corroborative medical evidence existed).

Complainant also testified that she lacked an ordinary vaginal opening and instead had a smaller, urethral opening. Although complainant testified to numerous occurrences of sexual intercourse, the lack of injury to her person belies her testimony. (See People v. Anderson (1974), 20 Ill. App. 3d 840, 850, 314 N.E.2d 651, 657 (rape conviction reversed where, inter alia, no medical evidence corroborated forced vaginal intercourse despite complainant’s testimony of being a virgin and that defendant had difficulty achieving full penetration).) Similarly, the fact that no seminal material was found on complainant’s person or clothing belies her testimony that numerous ejaculations occurred.

Other physical evidence is worth discussing. Palm prints attributable to Thompson and Yeargan were found on the car located in the garage. While their positioning on the car is not disclosed in the record, their presence substantiates Yeargan’s testimony that he leaned against the car while complainant kneeled and performed her services.

Finally, when Thompson was arrested, he was found in possession of complainant’s cigarette lighter. Yeargan testified that he, Thompson and complainant walked together smoking Yeargan’s marijuana cigarette. Thompson’s possession of complainant’s lighter, which could have been used to light the cigarette, cannot be seen as inconsistent with defendants’ claimed version of the events. See People v. Green (1986), 140 Ill. App. 3d 35, 41, 487 N.E.2d 1270, 1274 (defendant not proven guilty beyond a reasonable doubt where, inter alia, objective facts were consistent with defendant’s account of what happened).

We next focus on numerous and peculiar facts in the record which support defendants’ assertion that the night’s events transpired as they allege or, alternatively, so undermine complainant’s testimony that defendants were not proven guilty beyond a reasonable doubt. Defendants further note that these events make complainant’s testimony improbable, unsatisfactory and contrary to the laws of human nature and experience.

We list these events as follows: (1) that complainant, while in fear for her life, and while being followed by two strangers who had just propositioned her, proceeded into a dark alley rather than choosing another, safer alternative; (2) that when accosted, complainant admits she did not cry out or fight back, despite being 5 feet 8 inches tall and weighing 180 pounds, nor did her dog attack or run free; (3) that complainant’s testimony requires a court to believe that on a Friday night on Fullerton Avenue, a well-traveled and lit thoroughfare, defendants exited their vehicle and followed a woman with a dog into a dark alley, only to forcibly walk her farther down the alley (rather than assaulting her there) and into an open garage of which they arguably knew nothing; (5) that after the assault, complainant quickly dressed in the dark from a state of total nudity and followed Yeargan from a short distance as he walked, not fled, back to the same vehicle where complainant initially encountered him; and (6) that between the times of 12:30 a.m. and 1:20 a.m., complainant claims that she left her sister’s house, walked to the nearby 7-Eleven Store, shopped, encountered both defendants, walked towards her house, was dragged into the garage where she was sexually assaulted by both defendants in the manner she described, followed Yeargan back to the bar, returned to the garage for her dog, walked to the gas station to telephone the police, and waited there for the police to arrive at 1:20 a.m.

We agree with defendants that the events described above, when taken together, justify a conclusion that complainant’s testimony is improbable, unsatisfactory and contrary to the laws of human nature and experience and otherwise create a reasonable doubt in this case. We also believe the above events are remarkably consistent with Yeargan’s testimony and support the assertion that the entire evening occurred as defendants claim.

We recognize that, in reviewing the above events, complainant’s disability and decreased mental ability cannot be ignored. While no scientific evidence exists to illuminate the nature of complainant’s disability, we must recognize it and do consider it in addressing the , above events. Moreover, we recognize that complainant offered some testimony to rebut these matters. In this regard, complainant testified that the nearby gas station was closed. All witnesses except Yeargan confirmed this. Complainant also explained that she took the alley route because it was the fastest way home and the way she normally took. As for complainant’s decision not to fight back, complainant could have chosen not to fight back or scream because to do so would expose her to greater harm. She also explained that her dog did not attack, although requested, because the dog was too friendly. Moreover, the dog did not flee because complainant stated she did not let go of its leash. As for complainant following Yeargan back to the bar after the assault, this conduct could reflect the desire of an assaulted woman to bring her assailants to justice. Finally, as for the times involved, we note that the distances involved here are short and, therefore, complainant spent relatively little time walking.

Notwithstanding complainant’s disability and our attempt to construe the evidence in a light most favorable to the State, we believe the events are too consistent with defendants’ theory of the case to be lightly dismissed. For example, complainant alleges a physical confrontation and the overbearance of her will, but no independent evidence exists to support it: there was no ripped or torn clothing, no groceries were spilled, the dog did not attack, complainant did not scream or fight back, and no weapons were brandished. While the absence of one of these matters would not significantly affect complainant’s credibility, their presence in great number sheds considerable doubt on her testimony. (See generally People v. Walker (1987), 154 Ill. App. 3d 616, 506 N.E.2d 1004; People v. Wright (1986), 147 Ill. App. 3d 302, 497 N.E.2d 1261; People v. Green (1986), 140 Ill. App. 3d 35, 487 N.E.2d 1270.) More importantly, the events must be recognized as consistent with defendants’ claim that no physical confrontation occurred and that only consensual sex took place.

We also agree that some of the above enumerated events are contrary to the laws of human nature and experience. For example, complainant failed to flag down a motorist or take other evasive action; rather, she proceeded into a dark alley. Similarly, complainant would have this court believe that after the assault, she dressed from a state of total nudity, and followed Yeargan as he returned to the vehicle, rather than outright fleeing the scene, and thereafter proceeded to continue drinking socially at other bars. Finally, the time involved also seems somewhat short to accomplish all which complainant claims occurred. Again, while the presence of one or two matters contrary to the laws of human nature and experience would not affect complainant’s credibility greatly, their combination significantly undermines her testimony. This is especially true where, as here, defendants claimed version of the events are supported by these same facts and events.

As a final ground to support their sufficiency argument, defendants contend that the number of ejaculations to which plaintiff testified exceed known parameters of sexual prowess. While we express no opinion on the matter of sexual prowess, we do agree that her testimony lacks credibility.

In People v. Barfield (1969), 113 Ill. App. 2d 390, 251 N.E.2d 923, one of the reasons the court reversed was because it found highly unlikely the complainant’s testimony that the defendant performed six acts of forcible intercourse in 2xk hours. Defendants here contend that, like Barfield, complainant’s testimony is unbelievable in that Yeargan ejaculated five times and Thompson three or four times within a 15- to 20-minute time span. We agree in theory with defendants’ argument.

We initially note that the possible number of ejaculations attributable to each defendant and their location is necessarily limited by the sequence of events complainant described. Thompson was at complainant’s front and rear only once. Yeargan was at complainant’s front and rear twice. The maximum ejaculations for each defendant is, therefore, two and four, respectively.

When complainant testified chronologically on direct examination, she stated that while Yeargan ejaculated twice in her mouth and another time in her rectum or bladder, Thompson ejaculated once in her mouth. The testimony containing the higher number of ejaculations occurred during cross-examination and, to complainant’s credit, is perhaps attributable to complainant’s disability and defense counsel’s questioning.

For example, on cross-examination by Thompson’s counsel, counsel suddenly changed the subject matter of the questioning and asked a “yes” or “no” question containing a higher number of ejaculations. Thompson’s counsel asked:

“Q. Tracey, isn’t true that you testified that Mr. Thompson ejaculated in your mouth twice?
A. Yes, sir.
Q. Isn’t true that you testified that Mr. Yeargan ejaculated in your mouth four times.
A. Three and I didn’t say — .”

Clearly, counsel misquotes complainant’s direct testimony. As noted, Thompson could not have ejaculated twice in complainant’s mouth when he was only there once. The same can be said for Yeargan; he could have only ejaculated in complainant’s mouth twice as he was there only that number of times. Finally, and again to complainant’s credit, she qualified her earlier, direct testimony by saying she could not tell whether Thompson had ejaculated in her rectum or bladder because he wore a condom.

Applying this same analysis to complainant’s testimony during Yeargan’s cross-examination, the higher number of ejaculations is similarly reduced. For example, as the earlier quoted testimony shows, counsel predicated his questioning of complainant on Yeargan being at her front for the third time when he could only have been there twice. Additionally, during this cross-examination, complainant similarly qualified her earlier testimony by saying that, “as far as [she] knew,” Yeargan ejaculated in her rectum or bladder the first time he was behind her. It is worth noting that Yeargan’s counsel’s questioning ultimately confused complainant, and the court ordered that a new line of questioning be pursued.

The point of the above analysis is to review carefully complainant’s testimony and fulfill our duty of taking complainant’s testimony in the light most favorable to the State. However, even upon completion of this task, we believe that the situation in Barfield has again presented itself. Even when complainant’s testimony is given every benefit, complainant still has Yeargan ejaculating twice in her mouth, once in her rectum or bladder, and perhaps one more time in those locations. This all occurred in a matter of 15 to 20 minutes. While no expert testimony was presented on this point, complainant’s testimony on this matter fuels the reasonable doubt fire even more. To be sure, the problem Barfield found with the complaining witness’ testimony there is present here.

In addition to the sexual scenario complainant described running afoul Barfield, we find it difficult to believe complainant’s testimony that she was repeatedly subjected to simultaneous frontal and rear assaults while on her hands and knees. Such an attack, while possible in theory, is inherently incredible in light of known human physical capabilities. We also note that complainant’s version of who attacked her first was different when she spoke with Officer Jezioro and Detective Arpaia immediately after the alleged attack. At trial, complainant testified that Yeargan was at her front first; on the other hand, complainant told the officers that Thompson was at her front first.

In summary, this case turned on the credibility of two witnesses, complainant and Yeargan. We recognize the circuit court’s superior position in resolving the credibility of the witnesses. We also recognize that complainant is disabled, and the court was in a much better position than this court to view the evidence in light of complainant’s disability. Finally, we recognize that the record upon which our analysis and conclusions are based is quite cold. Nevertheless, we believe defendants were not proven guilty beyond a reasonable doubt. Too many facts and circumstances in the record undermine complainant’s credibility. Too many facts and circumstances are consistent with Yeargan’s testimony. Additionally, a motive to lie is present if defendants did indeed fail to pay for complainant’s services upon their completion.

For the foregoing reasons, we find the evidence to be so unsatisfactory that no rational trier of fact could have found the defendants guilty beyond a reasonable doubt. Accordingly, defendants’ convictions and sentences are reversed.

For the foregoing reasons, the judgments of the circuit court of Cook County are reversed.

Reversed.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    DONALD MERWIN, Petitioner-Appellant, v. THE STATE BOARD OF ELECTIONS et al., Respondents-Appellees.
    First District (1st Division)
    No. 1—92—0554
    Opinion filed April 20, 1992.

      Odelson & Sterk, Ltd., of Evergreen Park (Burton S. Odelson and Mathias W. Delort, of counsel), for appellant.
    John M. Nelson, of Rockford, appellee pro se.

   JUSTICE CAMPBELL

delivered the opinion of the court:

Petitioner Donald Merwin sought reversal of an order of the circuit court of Cook County that affirmed the decision of respondent State Board of Elections (the Board) to overrule objections Merwin filed against respondent John M. Nelson’s (Nelson’s) candidacy for the State senator from the 35th legislative district. After an emergency hearing on February 28, 1992, this court ordered that the relief sought by Merwin would be denied and that an opinion on this matter issue at a later date. We now deliver that opinion.

The facts giving rise to this dispute are as follows. Nelson caused nomination petitions to be a Democratic Party candidate for the office of State senator for the 35th legislative district at the March 17, 1992, general election primary to be filed with the Board. Subsequently, Merwin caused objections to Nelson’s petitions to be filed with the Board.

The objection on appeal is that many of Nelson’s petition sheets had a circulator’s affidavit which did not identify the dates on which they were circulated and failed to state that no signatures were obtained before September 17, 1991. Merwin alleged that the petition sheets at issue were therefore invalid under the relevant provision of the Election Code. (See Ill. Rev. Stat. 1989, ch. 46, par. 8 — 8.) It is undisputed that invalidating these petition sheets would leave Nelson with an inadequate number of signatures and would result in removing Nelson’s name from the ballot.

The Board convened a public hearing on these objections on February 7, 1992. At this hearing, the Board appointed a hearing officer to conduct proceedings on this matter and submit a recommendation to the Board. The proceedings on this matter were held on February 10, 1992. The hearing officer found that the petition sheets at issue did not identify the dates on which they were circulated and failed to state that no signatures were obtained before September 17, 1992. The hearing officer also received into evidence affidavits of Nelson, William D. Crowley and Mary Ann Aiello which indicated that the petition sheets at issue were circulated between January 14 and January 24, 1992. The hearing officer also heard oral testimony as to the circulation dates of the petitions.

The hearing officer, however, ultimately refused to consider the oral testimony regarding circulation dates. The hearing officer concluded that the petition sheets at issue violated section 7 — 10 of the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 7 — 10). Nelson’s argument that he had substantially complied with the requirements of the Election Code was rejected. The hearing officer concluded that Nelson had failed to gather sufficient valid signatures to be placed on the ballot.

On February 14, 1992, the Board rejected the recommendation of the hearing officer. The Board determined that the petition sheets at issue had been circulated within the time required by law. The Board further determined that, given the circumstances surrounding the 1992 election year, such as the uncertainty of district lines, Nelson had shown substantial compliance with the law, based on the testimony of the witnesses at the hearing.

On February 18, 1992, Merwin filed a petition for judicial review of the Board’s decision in the circuit court of Cook County. Nelson moved to dismiss the matter for lack of subject matter jurisdiction. The trial court denied both Nelson’s motion and Merwin’s petition on February 20, 1992. Merwin filed a notice of appeal to this court; Nelson filed a notice of cross-appeal on the jurisdictional issue.

We first address the subject matter jurisdiction of the trial court, which may be raised at any time in the appellate process. (People ex rel. Klingelmueller v. Haas (1982), 111 Ill. App. 3d 88, 92, 443 N.E.2d 782, 785.) Subject matter jurisdiction, which gives the right to hear and determine a case, is conferred on courts by our constitution or by legislative enactment. (Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 210, 215, 486 N.E.2d 893, 895, 898.) Our constitution provides that the circuit courts shall have such power to review administrative action as may be provided by law. (Ill. Const. 1970, art. VI, §9.) The Election Code provides for judicial review of Board actions within 10 days. (Ill. Rev. Stat. 1989, ch. 46, par. 10 — 10.1.) Timely filing of an administrative review complaint is jurisdictional and cannot be waived. Fredman Brothers Furniture Co. v. Department of Revenue (1984), 129 Ill. App. 3d 38, 471 N.E.2d 1037, aff’d (1985), 109 Ill. 2d 202, 486 N.E.2d 893.

Under normal circumstances, this issue could be easily determined. In this case, the Board issued its decision on February 14, 1992, and the complaint for judicial review was filed on February 18, 1992. The complaint would therefore appear to be timely filed.

The circumstances of this case, however, are far from typical. Nelson’s motion to dismiss was not based upon the 10-day period specified in the Election Code. Instead, Nelson relied on an order issued by the Illinois Supreme Court in People ex rel. Burris v. Ryan (1992), 147 Ill. 2d 270, 293. The order adopted a redistricting plan submitted to the court by the Legislative Redistricting Commission, subject to certain conditions. The order also set forth a schedule for the election process that provided, in relevant part, that final decisions of the Board were to be rendered by February 10, 1992, and that the last day to petition for judicial review of those decisions was February 14, 1992. (People ex rel. Burris v. Ryan (1992), 147 Ill. 2d 270, 293.) The schedule is part of an order implementing the supreme court’s decision concerning State legislative redistricting; such decisions are constitutionally within the original and exclusive jurisdiction of the supreme court. (See Ill. Const. 1970, art. IV, §3; see also Ill. Const. 1970, art. VI, §9 (specifically removing only redistricting cases from original jurisdiction of circuit court).) The supreme court also has the constitutional authority to institute and enforce procedural rules for the operation of the State judiciary. (County of Cook, Cermak Health Services v. Illinois State Local Labor Relations Board (1991), 144 Ill. 2d 326, 333, 579 N.E.2d 866, 869 (Cermak Health Services).) If the order is strictly followed, Merwin’s filing for judicial review would be deemed untimely. This court must attempt to resolve the disparity between the command of our supreme court and the legislative filing period, consistent with a constitutional framework of separated powers. See Cermak Health Services, 144 Ill. 2d at 333-34, 579 N.E.2d at 869.

As the above discussion suggests, the legislature and the supreme court have concurrent authority over the procedure for judicial review of the Board’s decisions. (See Cermak Health Services, 144 Ill. 2d at 332-34, 579 N.E.2d at 870.) Generally, a supreme court rule will preempt a legislative enactment when the latter does not expressly state a period for filing an administrative review complaint. (Cermak Health Services, 144 Ill. 2d at 334-35, 579 N.E.2d at 870-71.) Conversely, a supreme court rule will not preempt a statute where the statute explicitly sets forth a time period for seeking administrative review, as the subject is initially considered to be within the province of the legislature. See Cermak Health Services, 144 Ill. 2d at 334-35, 579 N.E.2d at 870-71.

Applying Cermak Health Services, section 10 — 10.1 of the Election Code would preempt the schedule in the supreme court’s order. Cermak Health Services, however, is distinguishable from this case in a number of ways. First, the judicial command here clearly postdates the legislative action; the supreme court could not have been unaware that the schedule in its order departed from the statutory scheme. Second, while the schedule functions as a rule, it remains part of an order in a particular case and, by its own terms, is limited in duration to the 1992 election cycle. Third, allowing the legislative enactment to prevail in this case would indirectly erode the jurisdiction of our supreme court to decide redistricting cases. Such jurisdiction is solely granted to our supreme court by our constitution in order to check the power of the legislature. Thus, our disregard of the supreme court’s order could erode the constitutional checks and balances between our separated branches of government. These factors suggest that the unique circumstances in this case warrant an exception to the Cermak Health Services rule.

We therefore conclude that the trial court lacked subject matter jurisdiction over this case. On appeal, Merwin contends that he was not provided with a written decision until after February 14, 1992, making it impossible to file for judicial review prior to February 18, 1992. The trial court ruled that it would be unfair to deny Merwin judicial review in this case, given the unique circumstances of this election season. However, it does not necessarily follow that the circuit court of Cook County was the proper forum for judicial review. In a prior case where the Board’s written decision was not issued until after the legal deadline for doing so, an aggrieved party was permitted to file an original action for mandamus in the supreme court, rather than file for review in the circuit court, due to the time constraints and great import of the election process. (See Dooley v. McGillicudy (1976), 63 Ill. 2d 54, 58, 345 N.E.2d 102, 104.) Dooley suggests that if the circuit court had dismissed for lack of subject matter jurisdiction, judicial review may not have been foreclosed entirely.

For all of the aforementioned reasons, we dismiss the appeal for lack of subject matter jurisdiction.

Dismissed.

O’CONNOR and MANNING, JJ., concur.

       Although the aforementioned order was not designated by the supreme court as a rule, it undoubtedly establishes a deadline for judicial review in a particular class of cases and functions identically to a formal rule within that class of cases.


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN QUIROZ, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—0880
    Opinion filed April 20, 1992.
    Rita A. Fry, Public Defender, of Chicago (Ira Churgin, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Brian Clauss, and Deborah Alexander, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

After a jury trial, which was held simultaneously with the bench trial of codefendant Jose Anaya (Anaya), defendant Martin Quiroz (Quiroz) was convicted of first degree murder and sentenced to 30 years’ imprisonment with the Department of Corrections. He now brings this appeal in which the only issue raised is whether the trial court erred, thereby denying Quiroz a fair trial, by admitting into evidence a police officer’s testimony that an occurrence witness was unavailable to testify at trial because he was “scared and went to Mexico.”

The facts of the case disclose that Jesus Sanchez was fatally shot at 19th Street and Loomis in Chicago during the early morning hours of March 19, 1988. The ensuing police investigation resulted in Quiroz’ arrest on March 25, 1988. Shortly after his arrest, Quiroz gave the police a statement concerning the Sanchez shooting. Later that same day, Quiroz repeated the statement to Assistant State’s Attorney Susan Grussel while it was recorded by a court reporter. The statement was then transcribed and signed by Quiroz. This statement was admitted into evidence at trial and published to the jury.

According to Quiroz’ statement, which was corroborated in part by witness testimony at trial, on the evening of March 18, 1988, Quiroz, who was 17 years old and a member of the La Raza street gang, met Anaya, a member of a rival gang called the Ambrose, in the vicinity of 17th and Carpenter Streets in Chicago. Despite their opposing gang affiliations, Quiroz agreed to go “cruising” in Anaya’s car with Anaya, whom he had known for more than four years.

Around 10 o’clock that evening, they met two girls, both of whom were named Patty, who joined them in the car. They drove around for awhile, stopped at a place called Old Folks and then parked in a parking lot near 19th and Loomis. While the four sat in the car talking, the car was besieged by 10 or more males. These young men, who were apparently members of another faction of the La Raza street gang, broke several windows of the car, began beating Anaya and attempted to pull him from the car. Quiroz tried to stop these men and help Anaya until the attack ended when the police arrived on the scene and the attackers fled.

After this incident, Quiroz and Anaya drove the two Pattys home and then drove to 17th and Throop. Anaya was angry and stated he wanted revenge against the men who attacked them. Quiroz agreed to help. Anaya obtained two guns, a .357 and a .25 automatic, kept the .357 gun and gave the other gun to Quiroz. They then walked to 19th and Loomis.

At 19th and Loomis the two split up. Anaya hid in a gangway while Quiroz went to check on the whereabouts of the La Raza gang members who had attacked them. Quiroz was told that their attackers were no longer in the area and he went to inform Anaya. Quiroz began to motion to Anaya that the men they sought were not present. Just then he saw Anaya run from the gangway to a stairway near where two young men were standing. Quiroz stood about 35 feet away from Anaya and watched as Anaya “cranked” the automatic gun back and forth and let off six shots in the direction of the two men.

After the shooting, Anaya and Quiroz ran off in different directions and then met up about three minutes later at 18th and Throop. There they hid the .25 caliber gun that Quiroz had carried under a garbage can and then they got into Anaya’s car and drove to 21st and Hoyne.

It was proven at trial that one of the men whom Anaya had fired upon on March 19, 1988, at 19th and Loomis, was Sanchez, who had been fatally wounded. Despite the admissions he made, Quiroz contended that he should not be held responsible for the killing. Quiroz’ theory of defense at trial was that he lacked accountability for the crime based upon his withdrawal. Quiroz argued that prior to the shooting he had terminated his efforts to promote or facilitate the commission of the offense. Over the State’s objection, the jury was instructed on this theory. Nevertheless, defendant was found guilty.

Now, on appeal, defendant’s sole argument is that his position at trial was substantially undercut and he was unfairly prejudiced by the admission of a hearsay statement made by a police officer during his testimony at trial. The State denies that the comment was inadmissible hearsay, but, alternatively, argues that defendant waived the right to object on appeal to its admission since he did not raise this point in his motion for new trial and that the admission of the comment, even if error, was harmless.

The comment which defendant finds objectionable occurred during the testimony of Officer McGreal. Officer McGreal was called upon to testify to his extensive, yet unsuccessful, attempts to serve a subpoena on Ricardo Perez. Perez was the second man who, along with Sanchez, had been fired upon by Anaya on March 19, 1988. Perez, too, had been shot, although not fatally as Sanchez had been, and Quiroz had been charged with attempted murder for his shooting. This charge had been nol-prossed prior to trial.

Officer McGreal’s testimony ended with the following exchange:

“Q. [Assistant State’s Attorney:] In addition to going to the house during the month of December, what other efforts did you make in your attempts to locate Ricardo Perez?
A. [Officer McGreal:] The same efforts described before. I repeated — repeatedly toured the area, spoke to people on the street.
Q. In the month of January of 1990, this year, could you detail your efforts to locate Ricardo Perez in this month?
A. I went to the area of 21st and Loomis. I went to the area of 1800 South Blue Island. And I also spoke to the stepfather on two occasions.
Q. During the course of your investigation, were you able to determine where Ricardo Perez was?
A. Yes.
Q. And where was that?
A. I was told by his stepfather that he was scared and that he was in Mexico.
MR. UNGER [Quiroz’ attorney]: Move that that be stricken, Judge.
COURT: No. The answer may stand.
MR. BARBARO [Assistant State’s Attorney]: I have nothing further of the witness.
MR. UNGER: No questions.”

It is Quiroz’ contention that “the clear impact of this evidence was that Perez had been intimidated by defendant.” While we agree that this evidence was unadulterated hearsay, we do not believe that the correlation between the evidence and defendant was so apparent that a jury would clearly reach the conclusion that the reason for Perez being “scared” was because Quiroz had intimidated him in some manner. More importantly, defendant’s own statement did not support the theory that he had withdrawn from his agreement to assist Anaya in the commission of the offense. For these reasons we find that the evidence, although improperly admitted, was harmless beyond a reasonable doubt.

Initially we note that the State contends that Quiroz waived this entire issue due to his failure to raise the point in his post-trial motion. We agree. Our supreme court has held that failure to include an objection to the admission of testimony in a post-trial motion, despite the preservation of the objection at trial, constitutes waiver. (People v. Chevalier (1989), 131 Ill. 2d 66, 77, 544 N.E.2d 942; People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) But even without the waiver, the admission of the statement did not constitute reversible error.

Testimony is hearsay if it is an out-of-court statement offered to prove the truth of the matter asserted. (People v. Nevitt (1990), 135 Ill. 2d 423, 447, 553 N.E.2d 368.) In the present case the officer was asked to testify regarding his efforts to locate and serve a subpoena on Perez. Since the State was attempting to explain the absence of Perez, an occurrence witness, the officer’s statement was offered to prove the truth of the matter asserted, i.e., that because Perez was scared he went to Mexico and wasn’t available for trial.

However, reversible error does not always result from improperly admitted hearsay. The admission of hearsay evidence will be considered harmless error where there is no reasonable probability that the jury would have acquitted the defendant absent the hearsay testimony. People v. Nevitt, 135 Ill. 2d at 447.

In this case defendant was convicted on an accountability theory. A defendant will be held legally accountable for the actions of another if he has solicited, aided, abetted, agreed or attempted to aid another in the planning or commission of an offense with the intent to promote or to facilitate the commission of the offense. (People v. Ruiz (1982), 94 Ill. 2d 245, 255, 447 N.E.2d 148; Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2(c).) Evidence that defendant attached himself to another bent on committing a crime, with knowledge of that person’s planned course of action, is sufficient to support a conviction on an accountability theory. (People v. Ruiz, 94 Ill. 2d at 254.) Once a person becomes accountable for the conduct of another, he remains so unless he detaches himself from the criminal enterprise by (a) wholly depriving his prior efforts of effectiveness; (b) giving a timely warning to the proper law enforcement authorities; or (c) otherwise making proper effort to prevent the commission of the crime. People v. Rybka (1959), 16 Ill. 2d 394, 158 N.E.2d 17; Ill. Rev. Stat. 1987, ch. 38, par. 5-2(c)(3).

In this case Quiroz admitted that he had agreed to assist Anaya in his quest for revenge. He accepted a gun from Anaya and then went with him to the area of 19th and Loomis in search of the men who had attacked Anaya earlier. He attempted to gain information regarding the whereabouts of the men for Anaya, knowing that Anaya was lying in wait, armed with a gun, in the alleyway. Certainly, this is strong evidence that Quiroz had aided, abetted or agreed to promote or facilitate the commission of murder.

Furthermore, the evidence does not support Quiroz’ theory that he withdrew from the intended criminal enterprise. To effectively withdraw, Quiroz would have had to, at the very least, communicated his desire to withdraw to Anaya. (People v. Gilbert (1990), 194 Ill. App. 3d 184, 550 N.E.2d 1183.) Moreover, withdrawal must be timely, i.e., before the crime is in the process of consummation or so inevitable that it cannot reasonably be stayed. People v. Rybka, 16 Ill. 2d 394,158 N.E.2d 17.

Here the only possible evidence of withdrawal was Quiroz’ statement that he motioned to Anaya that the men they were looking for were no longer in the area. This, however, does not seem to be a manifestation of Quiroz’ intent to withdraw. Instead, it merely indicated Quiroz’ belief that their efforts had been thwarted because of the men’s absence. Nothing in the record supports the notion that Quiroz ever expressed, in any manner, a desire to terminate his efforts to assist Anaya. He merely watched as Anaya “cranked” his gun and fired six shots at two men.

Additionally, he ran off after the crime and met up with Anaya within minutes, got rid of the gun he had carried and then drove off with Anaya in Anaya’s car. Evidence of post-crime behavior of defendant has been held competent to show participation in the crime itself. (People v. Ruiz, 94 Ill. 2d 245, 447 N.E.2d 148; People v. Gilbert, 194 Ill. App. 3d 184, 550 N.E.2d 1183.) We conclude that the facts did not support Quiroz’ theory of defense and that there was no reasonable probability that Quiroz would have been acquitted of the offense. Therefore, we find that the error that may have derived from the admission of the hearsay statement set forth above was harmless beyond a reasonable doubt.

The judgment of conviction for the offense of murder entered against Quiroz is hereby affirmed.

Affirmed.

McNULTY, P.J., and GORDON, J., concur.


author: PRESIDING JUSTICE McNULTY

text:
    STEVE C. RODGERS, Plaintiff-Appellant, v. REED WITHERS, Defendant-Appellee.
    First District (5th Division)
    No. 1—90—2216
    Opinion filed April 20, 1992.

      Raymond P. Concannon, Ltd., of Chicago (Raymond P. Concannon and Michael P. Concannon, of counsel), for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Mary C. O’Connor, and Imelda Terrazino, of counsel), for appellee.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff Steven C. Rodgers sued defendant Reed Withers for negligence because of an injury plaintiff received to his eye while he was operating his motorcycle. Plaintiff contends on appeal that: (1) the trial court erred in failing to direct a verdict in his favor on the issue of liability; (2) the trial court erred in failing to direct a verdict that he was free of contributory negligence that proximately contributed to his injury; (3) the jury’s verdict was against the manifest weight of the evidence; (4) the trial court abused its discretion in denying plaintiff the right to file an amended complaint sounding in res ipsa loquitur; and (5) the jury was improperly instructed.

On October 2, 1983, at approximately 6 p.m., plaintiff’s 10-year-old son told him that there were some teenagers out in front starting trouble. Plaintiff got on his motorcycle and proceeded east on 56th street to circle the block. Plaintiff spotted the four teenagers near his home, and he circled the block three times. Each time plaintiff drove northbound on South Sacramento Avenue, a one-way street going north in a residential area, he saw defendant standing in the street in close proximity to his car.

Defendant had recently arrived home from a weekend fishing trip and was unloading his van, which was parked on the east side of Sacramento across the street from defendant’s house. Defendant’s car was parked on the west side of the street, in front of his house and across the street from the van. While defendant unloaded the van, putting some of his things in the trunk and back passenger side of his car, defendant’s three children, between ages 4 and 11, were playing outside his house. The children asked defendant where the fish were that he had caught. Defendant raised his left arm and gestured with his left hand that the fish were in the van across the street. At this moment, plaintiff circled the block for a third time and defendant, while standing next to the passenger side of his automobile, struck the motorcycle’s windshield and plaintiff’s right eye with his left arm and hand. The jury found defendant not liable for plaintiff’s injury, and plaintiff appeals.

Plaintiff first contends that the trial court erred when it denied plaintiff’s motion for a directed verdict on the issue of liability. A verdict is to be directed only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) To prove negligence, it must be shown that the defendant failed to exercise that standard of care which a reasonably prudent person would have exercised under the circumstances. (Long v. Illinois Power Co. (1989), 187 Ill. App. 3d 614, 543 N.E.2d 525.) Whether certain conduct constitutes negligence is a matter best left to the jury. (Roeseke v. Pryor (1987), 152 Ill. App. 3d 771, 504 N.E.2d 927.) A directed verdict is to be granted only in those cases where the facts are undisputed and are such that there could be no difference in the judgment of reasonable men as to the inferences to be drawn from the facts. Thomas v. Northington (1985), 134 Ill. App. 3d 141, 479 N.E.2d 976.

Here, we agree with the trial court that the reasonableness of defendant’s arm gesture was a question of fact for the jury. The mere happening of an accident does not raise an inference of negligence. (Roeseke, 152 Ill. App. 3d 771, 504 N.E.2d 927.) According to defendant, plaintiff seemed to have control of his motorcycle and because plaintiff did not pass in close proximity to the car on the two previous occasions, defendant had no reason to believe plaintiff would drive in close proximity to where defendant was standing on the third occasion. Furthermore, defendant claimed that he knew plaintiff was approaching on his motorcycle and pointed in order to prevent his children from entering the street. Whether defendant acted reasonably under these circumstances is a determination best left to the jury, and we find that the evidence in this case is not such that a verdict for defendant could never stand.

Plaintiff next maintains that the trial court erred when it failed to direct a verdict that plaintiff was free of contributory negligence. In proving contributory negligence, an essential question is whether a party has failed to do that which a reasonably careful person would do or has done something which a reasonably careful person would not do. (Mart v. Walter (1983), 98 Ill. 2d 391, 457 N.E.2d 18.) The trial court in the instant case properly left it to the jury to determine whether plaintiff was distracted when he drove down the street and whether he drove too close to defendant’s car. The evidence was not so overwhelming as to preclude the jury from finding that plaintiff failed to exercise due care.

In the alternative, plaintiff argues that he should be granted a new trial because the jury’s verdict was against the manifest weight of the evidence. It is the function of the jury, and not the court, to determine the credibility of witnesses and the weight to be afforded their testimony. (Midland Hotel Corp. v. The Reuben H. Donnelley Corp. (1987), 118 Ill. 2d 306, 515 N.E.2d 61.) Since the trier of fact is in a better position to observe the witnesses, assess their credibility, weigh the evidence and resolve conflicts therein, the reviewing court will not set aside a jury verdict unless it is against the manifest weight of the evidence. (Long v. Illinois Power Co. (1989), 187 Ill. App. 3d 614, 543 N.E.2d 525.) A verdict is against the manifest weight of the evidence only if a contrary conclusion is clearly evident. Harris v. Day (1983), 115 Ill. App. 3d 762, 451 N.E.2d 262.

Defendant here stated that as he unloaded his car, he saw plaintiff pass two times on his motorcycle. Plaintiff did not pass in close proximity either time. Defendant’s children then came running over to defendant asking to see the fish he had caught. Defendant heard plaintiff coming around the corner again and therefore told his kids to stay where they were. The children wanted to know where the fish were and defendant pointed to the van. It was at that moment that his hand came into contact with plaintiff’s eye. Defendant argues that because he knew plaintiff was approaching and because plaintiff had passed twice before without being in close proximity, defendant felt he was acting reasonably in his attempt to keep his children from running into the street. From this testimony, the jury could have concluded that defendant did indeed act reasonably under the circumstances, and we find that the opposite conclusion is not clearly evident.

We next address plaintiff’s contention that the trial court erred when it refused to allow plaintiff to amend his complaint to include a res ipsa loquiter count. Whether the doctrine of res ipsa loquiter applies to a particular case is a question of law which must be decided by the trial court. (Briones v. Mobil Oil Corp. (1986), 150 Ill. App. 3d 41, 501 N.E.2d 821.) The doctrine involves a type of circumstantial evidence that permits a trier of fact to infer negligence when the precise cause of the injury is not known by the plaintiff and the direct proof is in the control of the defendant. (Piquette v. Midtown Anesthesia Associates (1989), 192 Ill. App. 3d 219, 548 N.E.2d 659.) In order to raise this inference, it must be shown that the accident would not have occurred but for defendant’s negligence. (Deming v. Montgomery (1989), 180 Ill. App. 3d 527, 536 N.E.2d 150.) There is no need for an inference of negligence under the doctrine where there is direct evidence as to the precise cause of the injury and the facts and circumstances surrounding the injury. Briones v. Mobil Oil Corp. (1986), 150 Ill. App. 3d 41, 45, 501 N.E.2d 821, 824.

Based on the circumstances here, there is simply no need to rely on an inference of negligence since the cause of plaintiff’s injury was provable by direct evidence. Both plaintiff and defendant had access to direct eyewitness testimony regarding the facts surrounding the injury. Moreover, this case does not involve an event that ordinarily would not have occurred but for defendant’s negligence. In fact, as previously discussed in this opinion, there is evidence that plaintiff’s own negligence may have caused the injury to his eye.

Plaintiff next contends that the trial court erred in giving or failing to give the jury various instructions. Plaintiff first objects to the issues instruction in that it included defendant’s affirmative defense of contributory negligence. We find this contention meritless since an instruction which omits reference to a defendant’s affirmative defense is reversible error. (Walton v. Greenberg Mercantile Corp. (1953), 1 Ill. App. 2d 99, 116 N.E.2d 197.) The trial court must instruct the jury on all issues raised by the pleadings that have some supporting evidence in the record. (Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 432 N.E.2d 1267.) Accordingly, it was proper to instruct the jury on contributory negligence since defendant’s answer raised the issue of contributory negligence and there is evidence in the record supporting this theory.

Plaintiff next maintains that the trial court should not have given the jury an instruction regarding plaintiff’s duty to sound his horn. Defendant initially tendered but was refused the following instruction:

“[E]very driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any obviously confused or incapacitated person upon a roadway.”

The language in this instruction varied only slightly from that of motor vehicle statute on the driver’s duty to exercise due care. (Ill. Rev. Stat. 1989, ch. 95x/2, par. 11 — 1003.1.) While the trial court refused the instruction because of the language regarding any child or incapacitated person, the court stated that it would consider a more appropriate instruction. Defendant then tendered the following instruction which was given to the jury:

“There was in force in the State of Illinois at the time of the occurrence a certain statute which provided that:
‘Every driver of a vehicle shall give warning by sounding the horn when necessary.’ ”

Although the tendered instruction did not mirror that of the statute, we find no error. If a part of a statute is not applicable to the facts in the case, it is proper to delete that part of the statute (Nagelmiller v. Seibel (1964), 47 Ill. App. 2d 39, 197 N.E.2d 457), and based on the facts before the court, it was proper to delete any reference to children or the incapacitated.

Moreover, while plaintiff relies on Maddox v. Smith (1966), 67 Ill. App. 2d 374, 214 N.E.2d 5, to support his argument that the sounding of the horn instruction should not have been given, such reliance is misplaced since there, the court held that the trial court erred in failing to give the jury an instruction as to the statutory duty to sound one’s horn. However, the court found that the failure to give the instruction was not prejudicial because another instruction did contain some reference to the use of the horn.

While plaintiff argues that there was no factual basis to impose a duty upon plaintiff to sound his horn, we disagree. Defendant argued that plaintiff was contributorily negligent by failing to sound his horn and plaintiff admitted that he did not sound his horn. Accordingly, it was for the jury to determine whether plaintiff was contributorily negligent in failing to sound his horn.

Plaintiff next maintains that the trial court erred when it failed to instruct the jury on the open-door section of the Vehicle Code that provides: “There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided:

‘No person shall open the door of a vehicle on the side available to moving traffic unless and until it is reasonably safe to do so and can be done without interfering with the movement of other traffic, nor shall any person leave a door open on the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passengers.’ ”

We find no error in the trial court’s refusal to tender the open-door instruction since the fact that defendant’s door was open has no bearing on plaintiff’s injury. According to plaintiff, his injury was caused when defendant swung his left arm into traffic and failed to keep a proper lookout. There is no evidence to reveal that the door itself or the opening of the car door had anything to do with defendant’s alleged negligence.

Plaintiff’s final argument is that the trial court erred when it refused to tender to the jury plaintiff’s tendered instructions on driving on the right side of the roadway. These instructions both stated:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided:
‘Drive on the right side of the roadway — exceptions Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except as follows:
Upon a roadway restricted to one-way traffic.’ ”

The trial court properly refused to tender this instruction in light of the fact that defendant never argued that plaintiff drove on the wrong side of the street, but only that plaintiff drove too close to defendant under the circumstances.

Accordingly, for the reasons set forth above, the judgment of the trial court is affirmed.

Judgment affirmed.

LORENZ and MURRAY, JJ., concur.


author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL LEE, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—0759
    Opinion filed May 6, 1992.

      Rita A. Fry, Public Defender, of Chicago (Karen A. Popek, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Joseph P. Roddy, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

After a jury trial, defendant, Michael Lee, was convicted of burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1) and sentenced to five years’ imprisonment. On appeal, defendant asserts that (1) he was not found guilty of burglary beyond a reasonable doubt because the evidence was insufficient to establish that he possessed the intent to commit a theft at the time he entered the tavern; (2) he was denied a fair trial due to the prosecutor’s misstatement of law regarding the voluntary intoxication defense and improper comments vouching for the credibility of a State witness; (3) he was denied the effective assistance of counsel because his attorney failed to tender jury instructions on the affirmative defense of voluntary intoxication; (4) he was denied a fair trial because the instruction limiting the jury’s consideration of prior inconsistent statements as substantive evidence confused and misled the jury; (5) he is entitled to a new sentencing hearing because the trial court erroneously believed that he was not statutorily eligible for probation due to a prior conviction; and (6) his sentence was excessive. We reverse.

The effect of the defendant’s intoxication during the commission of a burglary is the main issue in this case.

Defendant was arrested on April 30, 1988, for the burglary of the Lucky Lounge at 1951 South Kedzie Avenue, Chicago, Illinois. His first jury trial ended in a mistrial because the jury was unable to reach a unanimous verdict. After a second jury trial, defendant was convicted of burglary and sentenced to five years’ imprisonment.

Allen Evans, who operated the tavern at the time of the burglary, testified that he left the tavern between 2:30 and 3 a.m. on April 30, 1988, after locking the doors and windows. At 8 a.m., Evans received a phone call from the police informing him of a burglary. When Evans arrived at the tavern, the left front window had been taken out and the bars kicked in. The window, which was about five feet by five feet, was four to five feet from the ground. Inside, the tavern was a mess, the cash register was broken, liquor was thrown on the floor, and money was missing.

Later, at the police station, police showed Evans items he identified as being from the tavern: two remote controls, a calculator, and a half-pint of Black Velvet whiskey. Evans stated that he did not give defendant permission to enter the tavern or to take anything from the premises.

On cross-examination, Evans discussed problems he had had with the building’s owner, James Lewis. On a previous occasion, police found Lewis in the tavern when it was closed. Evans, who had not given Lewis permission to be in the tavern, told the police to arrest him. After that incident, Evans put a security gate between the tavern and Lewis’ residence, which was in the rear of the building. The gate was later broken, and Evans replaced it with a double gate. Although Lewis agreed to pay the building’s electric bill in exchange for living in the building, Evans explained, Lewis did not pay the bill, and Evans locked him out of the tavern.

Evans testified that one of the two security gates between the tavern and Lewis’ apartment was broken after the burglary. Evans, however, admitted that he testified at the first trial that both gates had been broken. He also testified that a 24-inch Sears television set, $2,000 worth of liquor, and $4,500 in cash were missing after the burglary. None of that property was ever recovered.

Evans further stated that he saw defendant intoxicated at the police station after the burglary. Although Evans testified that he did not see the police try to fingerprint defendant, he admitted that, at the first trial, he stated that the police could not fingerprint defendant because he was so drunk he did not know whether it was day or night.

Police officer Edward Shenberger testified that he received a burglary call at 7:50 a.m. on April 30, 1988. When he arrived at the tavern, he noticed that the front window had been removed from its frame and placed on the sidewalk. He did not see anyone in or around the tavern. As he was getting out of his car, however, he saw a man climbing out of the open tavern window. He arrested the man and searched him, finding two remote control devices, a calculator, and a half-pint whiskey bottle, but no weapons. In court, Shenberger was unable to identify defendant as the man he saw climbing out of the tavern window. He stated, however, that the man he arrested was the same man he later saw in the police station interrogation room.

On cross-examination, Shenberger stated that Evans did not tell him that a large quantity of liquor, a 24-inch television set, or money was missing. When he searched defendant at the scene, Shenberger did not find any burglary tools or large sums of money, nor did he remember any tools being found around the building.

Shenberger’s report indicated that defendant, who had been drinking, entered and exited the tavern through the front door. On redirect examination, Shenberger stated that he was mistaken because the front door was not open while he was there. Although the report stated that defendant was highly intoxicated and unable to print, Shenberger testified, one of the lockup keepers probably wrote that part of the report because he did not.

In court, Chicago police detective Carmel Abbate identified defendant as the arrestee he attempted to interview at the police station after the burglary. Abbate testified that he could not interview defendant because he was so intoxicated that he could not respond. Abbate also stated that Evans told him that he lost $4,503 in consumer goods, including a television set and assorted liquors. Evans, however, did not report that he lost $4,500 in cash or any money from the cash register.

After deliberations, during which the jury asked the trial court for additional information about Shenberger’s testimony, the jury found defendant guilty of burglary. At the sentencing hearing, the prosecutor presented previous convictions for two thefts, attempted armed robbery, armed robbery, and burglary, although none of the convictions occurred in the previous 10 years. After mitigation and a statement by defendant, the trial court sentenced defendant to five years’ imprisonment, based on his criminal background.

Defendant asserts that he was denied effective assistance of counsel because his attorney failed to tender a jury instruction on the affirmative defense of voluntary intoxication and failed to request that the issues instruction for burglary be modified to reflect that affirmative defense. Since there was both a legal and factual basis for giving those instructions, defendant argues, he was entitled to the pattern jury instructions on voluntary intoxication. Moreover, defendant contends, defense counsel’s failure to tender the intoxication defense instructions was particularly prejudicial in light of the prosecutor’s closing argument misstating the law regarding the defense and the difficulty the jury had in reaching a verdict.

Defendant relies on People v. Wright (1986), 111 Ill. 2d 18, 30-31, where the defense counsel did not understand the affirmative defense of voluntary intoxication. The trial court stated during the post-conviction hearing that it would not have convicted the defendant if it had heard the evidence of his substance abuse and expert testimony of the effect of mixing alcohol with drugs. The trial court, however, had heard evidence of the defendant’s excessive drinking and taking tranquilizers as well as his intoxicated appearance before the shooting. Wright, 111 Ill. 2d at 21-22.

The State responds that the jury heard ample evidence and argument about the voluntary intoxication defense from which it could have acquitted defendant even though there was no instruction. The State attempts to distinguish Wright, stating that there was no evidence in this case that defense counsel misunderstood the intoxication defense since he elicited testimony about defendant’s intoxication during cross-examination of the State’s witnesses and vigorously argued the defense of voluntary intoxication during his closing argument. Furthermore, the State comments, evidence of defendant’s drinking problem was presented at the sentencing hearing.

There was sufficient evidence of defendant’s extreme intoxication for the jury to reasonably find that defendant was so intoxicated at the time of the crime that he lacked the requisite mental state for the crime. (People v. Arnold (1984), 104 Ill. 2d 209, 214.) Burglary is a specific intent crime. One of its elements is the requirement that the defendant entered the premises with the intent to commit a theft or felony. (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1(a); People v. Cabrera (1987), 116 Ill. 2d 474, 492.) Under Illinois law, a person in an intoxicated condition is criminally responsible for his conduct unless such condition is “so extreme as to suspend the power of reason and render him incapable of forming a specific intent which is an element of the offense.” Ill. Rev. Stat. 1987, ch. 38, par. 6 — 3(a); People v. Hillenbrand (1988), 121 Ill. 2d 537, 555.

Although defendant raised this issue only as evidence of his attorney’s ineffective assistance, we apply the plain error doctrine. The error was so substantial that it reflected on the fairness and impartiality of the trial. (People v. Linscott (1991), 142 Ill. 2d 22, 28.) Even if defendant had presented the voluntary intoxication defense throughout the trial, as the State asserts, he had no defense when his case went to the jury because the jury could never consider the defense. A jury reaches its verdict on the basis of the law given to it by the trial court in its instructions, not from counsel’s arguments. Instructing the jury on defendant’s defense is not strategy. It is proper defense. Therefore, failure to give the intoxication defense instruction constituted reversible error. Wright, 111 Ill. 2d at 25-31; People v. Feagans (1983), 118 Ill. App. 3d 991, 997.

This error was compounded by the State’s improper closing argument remarks analogizing this case to reckless homicide scenarios:

“If you have a few drinks and you get behind a wheel of a car and have an accident or hit somebody, are you any less responsible for what you do? You are still responsible, and you know what to do.”

In its rebuttal, the prosecution stated:

“People who have been intoxicated sometimes they don’t think and do things that are appropriate ***. We suggest to you that sometimes they even steal. Does that make it all right because he was drunk, that he was in Mr. Evans’ tavern, stealing Mr. Evans’ property? Of course not. That is like suggesting to you reasonable people that if somebody goes to a party and gets drunk and on their way home in the inebriated condition they run into a family and within four or five minutes the family will excuse them [(defense objection overruled)] *** that criminal conduct because they are drunk?”

In reckless homicide cases, being under the influence of alcohol at the time of the alleged offense is prima facie evidence of a reckless act. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(b).) Since the reckless homicide statute excludes voluntary intoxication as a possible defense, the prosecution’s analogies to vehicular reckless homicide were misstatements of the law and should have been stricken.

Defendant then asserts that during the rebuttal closing argument, the State erroneously vouched for the credibility of the arresting officer, who was the only eyewitness to the crime. In referring to Officer Shenberger’s inability to make an in-court identification of defendant, the prosecution stated in its rebuttal closing argument:

“Policemen aren’t stupid. However, this one happened to be extremely honest in my humble opinion [(defense objection overruled)] *** [Shenberger] looked around [the courtroom] and said, I can’t pick him out. That is honesty. That is not somebody who gets up and tells you a lie. He is telling you the truth. [(Defense objection overruled.)] *** The fact of the matter is the man was candid and honest.”

The State contends that those comments were proper because the jury had to resolve a credibility battle between the police and defendant. Furthermore, the State argues, defense counsel invited the remarks by attacking Shenberger’s credibility during closing argument.

The State cites People v. Cox (1990), 197 Ill. App. 3d 1028, 1041, where the court ruled that the error was harmless because the prosecutor did not comment on her personal or professional beliefs in the credibility of the witnesses and the comments were invited by the defense counsel’s comments. After the defense counsel attacked the credibility of two State witnesses, the prosecutor in rebuttal commented that neither witness would risk his job by lying and that they simply were doing their jobs. Cox, 197 Ill. App. 3d at 1041.

In People v. Pryor (1988), 170 Ill. App. 3d 262, 273, the court concluded that the prosecutor’s comments, that the State’s police officer witness was believable and correct, were within the bounds of permissible comments. While it is improper for the State to place the integrity of the State’s Attorney’s office behind the credibility of a witness, the court concluded, the State may discuss the witnesses and their credibility and is entitled to assume the truth of the State’s evidence. Pryor, 170 Ill. App. 3d at 273.

Cox and Pryor are distinguishable from this case. Unlike those cases, the prosecutor here stated that Shenberger was “extremely honest in my humble opinion.” Because that comment was the prosecutor’s personal belief in the witness’ credibility, it was improper and prejudicial.

It is prejudicial error for the prosecutor to express personal beliefs or opinions, or invoke the integrity of the State’s Attorney’s office, to vouch for the credibility of a prosecution witness. (People v. Wilson (1990), 199 Ill. App. 3d 792, 795-96; People v. Valdery (1978), 65 Ill. App. 3d 375, 378.) It is solely the jury’s duty to determine the credibility of the witnesses, not the privilege of the prosecutor. (Wilson, 199 Ill. App. 3d at 796; Valdery, 65 Ill. App. 3d at 378.) It is impossible to determine whether the jury exercised its independent judgment to assess Shenberger’s credibility or was swayed towards its natural inclination to accept the word of the prosecution. Wilson, 199 Ill. App. 3d at 796.

The trial court compounded the error by overruling defense counsel’s objections and advising the jury that “it is appropriate argument.” When counsel’s argument is prejudicial, it should be terminated by the trial court sua sponte and the jury instructed to disregard it. People v. Ray (1984), 126 Ill. App. 3d 656, 664.

Considering the context of the language used, its relation to the evidence, and the effect of the argument on the rights of defendant to a fair and impartial trial (People v. Mitchell (1975), 35 Ill. App. 3d 151, 164), we conclude that the jury could have reached a different verdict had the improper comments not been made. (People v. Warmack (1980), 83 Ill. 2d 112, 128-29.) Because Shenberger was the only occurrence witness, his testimony and credibility were crucial to the State’s case. The jurors had serious questions about that testimony. They asked four questions during their deliberations related to Shenberger’s testimony and his police report. Consequently, the State’s comments vouching for Shenberger’s credibility were prejudicial error.

Defendant waived his argument that he was denied a fair trial because the modified pattern jury instruction on the use of prior inconsistent statement evidence confused and misled the jury since he did not object to the tendered instruction at trial. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

We will not discuss defendant’s assertion that the evidence was insufficient to prove beyond a reasonable doubt that he entered the tavern with the intent to commit theft. Part of his argument is that he was too intoxicated to form the specific intent to commit a burglary or to have removed the window. Since the jury did not consider defendant’s intoxication as an affirmative defense, we have ordered a new trial. If evidence of defendant’s intoxication is presented at trial, the jury is to be instructed on the voluntary intoxication defense.

Since we have reversed defendant’s conviction, we will not address the sentencing issue raised by defendant.

Based on the foregoing, defendant’s conviction is reversed and remanded for a new trial.

Reversed and remanded.

RIZZI and TULLY, JJ., concur.