text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT MOTTA, Defendant-Appellant.
    Third District
    Nos. 3 — 91—0203, 3 — 91—0204 cons.
    Opinion filed December 24, 1991.
    Ira B. Goldstein, of Ira B. Goldstein, Ltd., of Joliet, for appellant.
    Edward A. Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Jay Paul Hoffman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant, Robert Motta, appeals the judgment order of the circuit court of Will County revoking his probation pursuant to section 5 — 6—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005-6-4).

The record shows that in circuit court case No. 87 — CF—515, the defendant pled guilty to an offense relating to motor vehicles (Ill. Rev. Stat. 1989, ch. 951/2, par. 4 — 103(a)), and in circuit court case No. 87— CF — 1015, he pled guilty to attempted burglary (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(a), 19 — 1(a)). Pursuant to a plea agreement, the court sentenced defendant to 18 months’ probation for each offense, with the probationary periods to run consecutively. The State subsequently filed a petition to revoke the defendant’s probation, alleging that while on probation he had committed the offense of possession of a controlled substance with the intent to deliver. The date of the alleged offense fell within the span of the first probationary period. Nonetheless, the State requested that both sentences of probation be revoked because the law did not allow consecutive sentences of probation (Ill. Rev. Stat. 1989, ch. 38, par. 1005-6-2(b)).

The hearing on the petition to revoke probation was consolidated by agreement of the parties with the defendant’s jury trial on the charge of possession of a controlled substance with the intent to deliver. The jury acquitted the defendant, finding that the State had failed to prove beyond a reasonable doubt that the defendant was not entrapped. The trial judge found that the State had met its burden of showing by a preponderance of the evidence that the defendant violated the terms of his probation. In so doing, he specifically found by the lesser standard that the defendant had not been entrapped. Agreeing with the State that the defendant’s sentences of probation should have been concurrent rather than consecutive, the trial judge revoked both sentences of probation. He sentenced the defendant to four years’ imprisonment for the motor vehicle offense and two years for the attempted burglary offense with the prison terms to run consecutively.

Before reaching the defendant’s arguments on appeal, we note that the State contends that we do not have jurisdiction to consider this appeal because the defendant failed to file a motion to -withdraw his guilty pleas from the initial convictions. Inasmuch as the defendant’s arguments on appeal are an attack on the revocation of his probation and only indirectly involve his guilty plea, we find no merit to this contention. (See People v. Combs (1990), 197 Ill. App. 3d 758, 555 N.E.2d 66.) The State also argues that the defendant waived the issues on appeal by failing to properly preserve them in the trial court. We find, however, that the error presented here involves substantial rights and may be noticed even though it was not brought to the attention of the trial court. 134 Ill. 2d R. 615(a).

We first address defendant’s contention that he was denied his due process and equal protection rights by being accorded less protection from being entrapped while on probation than if he were not on probation. He also contends that once the jury determined he was entrapped, the doctrines of double jeopardy and collateral estoppel barred the trial judge from finding he violated his probation. We disagree.

In a probation revocation proceeding, the State need only prove by a preponderance of the evidence that the defendant violated the terms of his probation. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(c).) Where the criminal trial and the revocation hearing are held simultaneously, double jeopardy and collateral estoppel concerns do not arise and the defendant may be acquitted of the criminal charge but still be found to have violated the terms of his probation. (In re N.R.L. (1990), 200 Ill. App. 3d 820, 558 N.E.2d 538.) For this reason, cases such as People v. Grayson (1974), 58 Ill. 2d 260, 319 N.E.2d 43, where the revocation proceeding took place after the jury had acquitted the defendant, are inapplicable. In re N.R.L. (1990), 200 Ill. App. 3d 820, 558 N.E.2d 538.

For analogous reasons, we disagree with defendant’s contention that his right to equal protection was violated. Convicted felons on probation do in fact have restrictions placed on their rights. They are subject to any number of special conditions, such as reporting to a probation officer and being prohibited from leaving the State, which law-abiding citizens do not have to endure. More important, the essence of the defendant’s argument is that the State should have the same burden of disproving entrapment in a revocation proceeding as it does in a criminal proceeding. Clearly, the State does not have the same burden in the two proceedings, and the constitutionality of the lower burden in a revocation proceeding is well established. (See People v. Hardnett (1971), 132 Ill. App. 2d 843, 270 N.E.2d 864.) For these reasons, we find no error in the trial court reaching a different conclusion from the jury.

We next address the defendant’s contention that the trial court erred in revoking his sentence of probation for attempted burglary since that sentence had not even started running yet. Initially, he argues that the consecutive probation sentences were proper. Alternatively, he contends that even if they were not allowed by law, his rights were violated when the court retroactively found that his probation sentences were concurrent and then revoked the second sentence of probation on that basis. In this regard, he argues that he should have been given prior notice of the change in the terms of his probation. Finally, he contends that his guilty pleas were not knowingly made since he was misled about the fact that his sentences would actually be concurrent rather than consecutive. The defendant therefore contends that this court should vacate both of his prison sentences and remand this cause for a hearing to determine whether the sentences of probation should run concurrently. If it is found that the probation sentences should have been concurrent, he claims he should be allowed to file a motion to vacate his guilty pleas.

Initially, we find that the defendant is not entitled to have the four-year prison sentence for his motor vehicle offense vacated. There is no question that he was properly serving a sentence of probation for that offense when he committed the acts which led to the revocation of probation in that case. Moreover, although the defendant also challenges the length of his sentence for that offense, we find that he did not properly preserve the issue for appeal and it does not rise to the level of plain error.

We agree, however, that his due process rights were violated when the judge revoked his second sentence of probation. The defendant, as well as the State and the trial court for that matter, believed the defendant’s probation sentences were consecutive when they were entered. It is clear that those on probation are guaranteed due process rights. (People v. Beard (1974), 59 Ill. 2d 220, 319 N.E.2d 745.) Such procedural safeguards are designed to protect the interests of both the probationer and the State. (People v. Crawford (1980), 85 Ill. App. 3d 366, 406 N.E.2d 861.) These due process rights include the right to notice and a hearing before any changes are made in the terms of a sentence of probation. Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(f).

The State contends that since the law only allows for concurrent sentences of probation, as a matter of law the defendant’s sentences of probation were automatically switched to run concurrently the moment they were entered. We agree that the law only allowed for concurrent sentences of probation. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—2(b); People v. Mack (1985), 133 Ill. App. 3d 788, 479 N.E.2d 445.) We also agree that the original sentencing court did not have the authority to enter consecutive terms of probation. The two 18-month probation sentences should have been concurrent.

We disagree, however, that under the circumstances the court could therefore revoke both sentences of probation. Because the defendant was never given notice that the terms of his second sentence of probation had been changed (to run concurrently with the first sentence), the trial court violated defendant’s due process rights in revoking that probation. We find it quite basic that a defendant should first be notified that he is on probation before he can be punished for violating the terms of that probation. Therefore, we vacate the two-year prison sentence entered for the attempted burglary conviction. (134 Ill. 2d R. 615(b).) Because the period of probation on that conviction was in fact running concurrently with the first period of probation, it has now expired.

The judgment of the circuit court of Will County in case No. 87— CF — 515, which revoked the defendant’s probation and sentenced him to four years’ imprisonment for committing an offense related to motor vehicles, is affirmed. The judgment of the circuit court in case No. 87 — CF—1015, which revoked the defendant’s probation and sentenced him to two years’ imprisonment for committing attempted burglary, is vacated. The defendant’s 18-month sentence of probation in case No. 87 — CF—1015 is hereby reinstated. However, since as a matter of law the probationary term in No. 87 — CF—1015 began running on July 20, 1989, it has now expired.

Affirmed in part; vacated in part.

BARRY and McCUSKEY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCUSKEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHABASCO ELSTON, Defendant-Appellant.
    Third District
    No. 3 — 90—0546
    Opinion filed December 24, 1991.

      Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Nancy Rink Carter, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Chabasco Elston, was convicted of residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3) and sentenced to six years’ imprisonment. He appeals. We affirm.

The record reveals that on or about August 16, 1988, someone broke into the residence of Janelle Carter while he and his "wife were out of town on vacation. The break-in was discovered on August 16, 1988, by Carter’s neighbor, Warren Wallace. Wallace found the sliding glass door to the back of Carter’s town house open. Upon entering and observing broken glass, he called the police.

The police arrived at the crime scene and investigated the break-in. They obtained one latent fingerprint from a piece of glass that had fallen out of a broken basement window at the rear of the residence. Another fingerprint was obtained from the bottom of a handle on a dresser drawer in the master bedroom.

On August 18, 1988, the Carters returned home and discovered someone had taken two VCRs and a microwave oven from their town house. According to Mr. Carter, only he, his wife, and his stepdaughter, Nedra Williams, had keys to his home. Nedra had recently moved to Chicago, so that only he and his wife were living in the home at the time of the burglary.

After examining his town house, Mr. Carter told the police that a clock radio in the master bedroom had been moved from the headboard onto the bed. The police dusted the clock radio for fingerprints and discovered a third fingerprint on its backside.

Will County sheriff’s deputy Robert Coleman booked the defendant on November 21, 1988. At that time, he overheard the defendant talking on a pay telephone in the booking cell where he was being held. Coleman heard the defendant say he and Tyrone had gone into a place while Chuck waited out in the van. Coleman also heard the defendant say, “[W]e carried the stuff out, got in the van and we all took off.”

Susan Rutter, a forensic scientist with the State Police lab, testified that her specialized duties were in latent fingerprint examination. She stated the fingerprint on the clock radio belonged to the defendant.

The defendant denied burglarizing the Carters’ town house. According to the defendant, on a Saturday in August of 1988, he and someone named Nate went to visit one of Nate’s relatives who lived in a town house on Green Briar. (The Carters’ town house was also located on Green Briar.) The defendant and Nate went to the door of a town house and were let in by Nate’s cousin, Sandra. They went into the kitchen, where they talked and listened to music with Sandra and a woman named Karen. There was a clock radio on the kitchen table, which the defendant turned around to see the time. After about one-half hour, Nate and the defendant left, with each of them going off in a separate direction.

The defendant admitted he made two telephone calls from the Will County jail after he was arrested. He admitted calling his mother and his girlfriend, but denied discussing the charges he was facing. He also denied knowing anyone named Tyrone Lewis or Charles Wilson. (We note these men apparently were also charged with the burglary.)

The defendant admitted he had previously been convicted of robbery. He also admitted he told the police he was working at The Signature Group when the burglary occurred. At trial, he acknowledged, however, that he did not start working there until after the burglary had occurred.

Sharon Purifoye testified she was a friend of Nedra Williams and that she visited Nedra at the Carter residence one afternoon during the week of August 16, 1988. She also admitted she had a cousin named Nate with whom she lived. However, we note both Williams and Purifoye testified that neither Nate nor the defendant visited them at the Carters’ town house on that day.

The trial judge found the defendant guilty and sentenced him to six years’ imprisonment.

On appeal, the defendant argues the presence of his fingerprint was not sufficient to support a conviction, because the State failed to rule out the possibility that the print could have been impressed at a time other than when the burglary occurred. We disagree.

The defendant claims to have made the print on the clock radio when he went to a residence on Green Briar to meet with Nate’s cousin. He also claims that Deputy Coleman was mistaken as to the conversation he overheard the defendant having on the telephone at the jail.

When faced with conflicting testimony, it is the province of the trier of fact to determine the credibility of the witnesses. (People v. Hobson (1979), 77 Ill. App. 3d 22, 396 N.E.2d 53.) The trial court is free to reject a defendant’s improbable explanation of how his fingerprints could have been at the scene of the crime without criminal involvement. See People v. Malmenato (1958), 14 Ill. 2d 52, 150 N.E.2d 806; People v. Sanford (1981), 99 Ill. App. 3d 821, 426 N.E.2d 273.

Here, both Purifoye and Williams denied that any meeting at the town house ever took place. Further, Deputy Coleman was clear and unequivocal in his testimony. Conversely, the defendant’s testimony was vague, inconsistent, and he had a history of dishonesty. Under these circumstances, the trial court could reasonably conclude that the defendant’s testimony was not credible. We find, additionally, that given the circumstantial evidence presented implicating the defendant in the burglary, the trial court could have rationally found the defendant was proved guilty beyond a reasonable doubt of residential burglary. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

GORMAN and SLATER, JJ., concur.


author: JUSTICE GORMAN

text:
    DENISE FAY PAPESH, Plaintiff-Appellant, v. BARBARA MATESEVAC, Indiv. and as Parent and Guardian of the Person and Property of Jason Matesevac, a Minor, Defendant-Appellee (Raymond Matesevac, Indiv. and as Parent and Guardian of the Person and Property of Jason Matesevac, a Minor, Defendant).
    Third District
    No. 3 — 91—0319
    Opinion filed December 30, 1991.

      Timothy J. Rathbun, of McKeown Law Office, of Joliet, for appellant.
    Richard J. Loeffler, of Van Duzer, Gershon, Jordan, Petersen & Loeffler, of Chicago, for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

Denise Fay Papesh brought suit for injuries sustained as the result of a dog bite. At issue is the ownership of the dog. The trial court granted summary judgment in favor of Barbara Matesevac and plaintiff appeals. We affirm.

The defendants, Raymond and Barbara Matesevac, were divorced in 1982. Their two children resided with Mrs. Matesevac until June of 1987, at which point they went to live with their father. In February of 1988, the divorce decree was modified so as to reflect a joint custody arrangement, with Mr. Matesevac having residential custody of the children.

In July of 1985, Mrs. Matesevac bought a dog, Rupert, for her son Jason. At that time Jason resided with Mrs. Matesevac. Rupert stayed in a pen in Mrs. Matesevac’s yard.

After Jason moved out in 1987, Rupert stayed with Mrs. Matesevac. In February of 1988, as the result of a fire which destroyed Mrs. Matesevac’s house, Rupert, his house and his pen were moved to Mr. Matesevac’s house. From that point on, Mrs. Matesevac did not physically care for the dog or pay for the dog’s care.

The plaintiff lives next door to Mr. Matesevac. In July of 1988, Jason asked Mrs. Papesh to care for the dog while he and his father went away for the weekend. It was during that time that Rupert attacked Mrs. Papesh, causing injury to her torso and left hand.

Mrs. Papesh filed a complaint against “Barbara Matesevac, Individually, Raymond Matesevac, Individually, and Barbara and Raymond Matesevac, as parents and guardians of the person and property of Jason Matesevac, a minor.”

Mrs. Matesevac moved for summary judgment, claiming that she was not the “owner” of the dog for purposes of the Animal Control Act. (Ill. Rev. Stat. 1989, ch. 8, pars. 351 through 378.) The trial court agreed and entered judgment in favor of Mrs. Matesevac. Mrs. Papesh now appeals.

Mr. Matesevac was ultimately dismissed and is not a party to this action.

The relevant statutes are as follows:

“If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.” Ill. Rev. Stat. 1989, ch. 8, par. 366.
“ ‘Owner’ means any person having a right of property in a dog or other animal, or who keeps or harbors a dog or other animal, or who has it in his care, or acts as its custodian, or who knowingly permits a dog or other domestic animal to remain on or about any premise occupied by him.” Ill. Rev. Stat. 1989, ch. 8, par. 352.16.

The question of ownership is usually one for the trier of fact. (Steinberg v. Petta (1986), 114 Ill. 2d 496, 501 N.E.2d 1263.) In Steinberg, however, the issue was decided on a directed verdict. Analogously, summary judgment is proper in appropriate cases.

Under the Animal Control Act, “owner” is defined so as to include “harborer” or “keeper.” (Ill. Rev. Stat. 1989, ch. 8, par. 352.16.) These terms have been construed to involve some measure of care, custody or control. Steinberg, 114 Ill. 2d at 501, 501 N.E.2d at 1265; see generally, Annot., Who “Harbors” or “Keeps” Dog Under Animal Liability Statute, 64 A.L.R.4th 963 (1988).

Here, there is no evidence that, at the time in question, Mrs. Matesevac exercised any level of care, custody or control over the dog. Rupert was living with Mr. Matesevac and Jason. The dog’s license with the City of Joliet listed Jason as the owner. Mrs. Matesevac had only seen the dog once during the four-month period between the time it was removed from her house and the time it bit the plaintiff. She did not physically care for the dog or pay for its care. When Jason asked Mrs. Papesh to keep Rupert, Mrs. Papesh had never met Mrs. Matesevac. Mrs. Matesevac did give Jason some general instructions on how to care for the dog, e.g., make sure Rupert has his collar on, keep him on a leash, etc. However, these are the kind of directions any parent would give a child and were really for Jason’s benefit to teach him responsibility. They are not evidence of any level of control by Mrs. Matesevac over the dog.

There is insufficient evidence to support a conclusion that Mrs. Matesevac was Rupert’s owner in July of 1988. Summary judgment was proper.

Plaintiff next claims that Mrs. Matesevac is the owner of Jason’s property by virtue of the parent/child relationship. Thus, even if the dog is technically owned by Jason, Mrs. Matesevac would still be liable as an “owner” under the Animal Control Act.

As noted, the Animal Control Act contemplates some level of care, control, or custody. This is an effort by the legislature to place the burden on parties who might best be in a position to prevent the animal from causing harm. Extending liability to a noncustodial parent would seemingly fly in the face of such a policy, as Mrs. Matesevac was not in a position where she could have controlled the dog or prevented the injury.

Mr. Matesevac had legal and actual custody of Jason. The dog was also kept at Mr. Matesevac’s premises. Mrs. Matesevac had only seen the dog once in the four months preceding the incident. Despite the fact that Jason and Rupert both lived with Mrs. Matesevac at one time, it cannot be said that Mrs. Matesevac was the owner of her son’s dog at the time of the incident.

For the foregoing reasons, the order of the Will County circuit court granting summary judgment in favor of Barbara Matesevac is affirmed.

Affirmed.

McCUSKEY and SLATER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY MABRY, Defendant-Appellant.
    Third District
    No. 3 — 91—0242
    Opinion filed December 24, 1991.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

A jury convicted the defendant, Terry Mabry, of theft (111. Rev. Stat. 1989, ch. 38, par. 16 — 1(a)(1)). Thereafter, he was sentenced to a seven-year term of imprisonment. He appeals, and we affirm.

On appeal, Mabry first argues that the trial court erred in failing to grant his motion for a new trial. Specifically, Mabry contends he was prejudiced by the testimony of a State’s witness suggesting that he had a prior record of criminal conduct.

Any prejudice resulting from testimony concerning other crimes was committed by a defendant is generally cured by sustaining an objection and instructing the jury to disregard the testimony. (People v. Sledge (1989), 183 Ill. App. 3d 1035, 539 N.E.2d 1312.) In such cases, the decision of whether or not to grant a mistrial is within the broad discretion of the trial court, and its decision will not be disturbed absent an abuse of discretion. (People v. Winfield (1983), 113 Ill. App. 3d 818, 447 N.E.2d 1029.) In order to establish an abuse of discretion, the defendant must show that he was prejudiced by the comment. People v. Rose (1979), 77 Ill. App. 3d 330, 395 N.E.2d 1081.

In the instant appeal, the record indicates that police officer Kenneth Orwig was asked if Mabry said anything when he was arrested. Orwig testified that Mabry said “he was going to go back to prison.” Defense counsel immediately objected to the statement and asked for a mistrial. Following arguments, the objection was sustained and the court admonished the jury to disregard the comment. Thereafter, the trial court denied Mabry’s motion for a mistrial.

The record reflects that Mabry testified at trial and admitted he had prior convictions for criminal sexual assault, forgery, and theft. Based on Mabry’s admission, we find that even assuming the error caused by Orwig’s testimony was not cured by the trial court’s admonition to the jury, Mabry has failed to show how he was prejudiced by Officer Orwig’s comment. Here, the jury heard from Mabry’s own testimony that he had prior convictions. As such, we fail to see how Mabry was prejudiced by Office Orwig saying, in effect, the same thing.

Mabry next argues that he received ineffective assistance of trial counsel. Specifically, Mabry contends that his trial attorney failed to offer a jury instruction on the lesser offense of criminal trespass to a motor vehicle.

The record shows that Mabry went to an automobile dealership to look at a Chrysler Fifth Avenue. Once there, Mabry told a salesman, Ron Swenson, that he liked the car and had $3,500 in cash for a down payment. At that point, Swenson asked Mabry for his name and address. Mabry responded by giving false information. Swenson then allowed Mabry to take the car for a 10-minute test drive. Swenson stated that he did not accompany Mabry because he was busy with another customer.

Approximately an hour later, Mabry called Swenson and told him the license plate had fallen off the car and he would be back to the dealership in about 15 minutes. However, Mabry never returned the car. Later that same evening, he was found and arrested.

Mabry stated the reason he never returned to the dealership was because he was trying to borrow money for the down payment.

Mabry testified that he got wrapped up in a conversation and by the time he was done, the dealership was closed. Mabry also claimed he intended to return the car the following morning. Mabry also said that he intended to purchase it, but was arrested before he could do so.

Following his trial, Mabry filed a motion for a new trial. Mabry claimed he received ineffective assistance of counsel because his trial attorney failed to tender a jury instruction for criminal trespass to a motor vehicle. At the hearing on Mabry’s motion, his trial attorney testified regarding his defense theory and trial strategy. The trial attorney’s defense theory was that Mabry had lawful authority to be in the automobile and that Mabry intended to return it the next day. Therefore, the trial attorney testified that he did not even consider giving a criminal trespass to a motor vehicle jury instruction since the essence of that crime is being in a vehicle without lawful authority.

To próve ineffective assistance of counsel, the defendant must first show that his trial attorney’s performance was actually deficient. Additionally, the defendant must show that he was prejudiced by that deficiency. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Competency of counsel is determined from the totality of counsel’s conduct at trial. (People v. Howard (1981), 94 Ill. App. 3d 797, 419 N.E.2d 702.) However, our review of trial counsel’s competency does not extend to those areas involving the exercise of professional judgment, discretion, or trial tactics. (People v. Spicer (1987), 158 Ill. App. 3d 699, 511 N.E.2d 235.) This is so even though, in hindsight, other trial counsel or a reviewing court might have acted in a different manner had it been defense counsel. (People v. Johnson (1978), 63 Ill. App. 3d 745, 380 N.E.2d 531.) The fact that one defense counsel may have pursued the defense of the cause under a different theory does not automatically render a trial counsel’s performance ineffective. People v. Cunningham, (1989), 191 Ill. App. 3d 332, 547 N.E.2d 765.

We do not find the trial court erred in denying Mabry’s motion. Our review of the record indicates that Mabry received effective assistance of counsel. Mabry’s trial attorney testified that his defense strategy was that Mabry had lawful authority to be in the automobile. Because of this trial strategy, Mabry’s attorney did not consider offering the jury instruction on criminal trespass to a motor vehicle. The trial attorney’s strategy involved his professional judgment, and under the facts and circumstances of this case, was reasonable. Accordingly, we find no ineffective assistance of counsel since there is no showing that Mabry’s trial attorney’s performance was deficient or that Mabry was prejudiced by his performance.

The decision of the circuit court of Peoria County is affirmed.

Affirmed.

STOUDER, P.J., and GORMAN, J., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY C. THURMAN, Defendant-Appellant.
    Third District
    No. 3 — 90—0472
    Opinion filed December 31, 1991.

      John Anthony Palombi, of State Appellate Defender’s Office, of Springfield, and Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Erik I. Blanc, State’s Attorney, of Pekin (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant, Jerry Thurman, was charged in a six-count indictment with the first degree murder of Ronald Griffin (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)). The jury returned a general verdict of guilty but mentally ill. The defendant raises the following issues on appeal: (1) whether he proved by a preponderance of the evidence that he was legally insane; (2) whether he was properly charged with felony murder; and (3) whether his conviction of first degree murder should be reduced to second degree murder. We affirm.

The record shows that the defendant was a patient and resident at the Tazwood Center for Human Services, a mental health facility. He was diagnosed as suffering from paranoid schizophrenia. The vietim, Ronald Griffin, was also a patient and resident at the Tazwood Center who had been diagnosed as suffering from schizophrenia.

On October 16, 1989, the defendant, Griffin, and other Tazwood Center patients attended a party at Tazwood’s Day Treatment Center for defendant’s former therapist who was leaving his employment at Tazwood. At approximately 11:30 a.m., the defendant and Griffin were involved in an altercation in the recreation room of the center. Griffin screamed in defendant’s ear, and defendant hit Griffin on the chin. After the party, at approximately 1:30 p.m., the defendant was seen leading the victim away from the center vfith his arm around Griffin as if he were trying to keep him from falling down. Defendant took Griffin five or six blocks to a nearby park. Upon reaching the park, the defendant and Griffin engaged in a struggle during which the defendant killed Griffin by striking him on the side of the head with a blunt object and stabbing him twice in the chest and five times in the back.

At approximately 3:30 p.m., the defendant entered the Tazewell County sheriff’s office. His clothes were stained with the blood of the victim. Defendant told a deputy sheriff that he had been in a fight and that the other person “may be dead.” Defendant then handed the deputy a slide-out knife and said that he had used the knife to stab Ron Griffin. He told the deputy that the fight had started because Griffin threatened to kill him, his mother, and his girlfriend. Defendant showed the authorities where the body was located and was then taken to the Pekin police department.

At approximately 4 p.m., the defendant spoke with a Pekin police officer about the incident and said that he had fought with the victim and killed him. He said he was waiting for a chance to get the victim and that he “got the son-of-a-bitch.” Defendant also told the police officer that the victim had psychic powers, was part of the “Jewish mafia,” and had threatened to kill the defendant and his girlfriend.

Defendant then made a number of delusional statements to the police officer. He stated that he did not want his picture in the newspaper because there were people who could read minds through the retinae of the eyes. He said that he had once been kidnapped and brainwashed by Iranians armed with AK-47 assault rifles. He told the police officer that he occasionally worked for the sheriff’s office and was conducting surveillance on an “Iranian trailer.” Defendant stated that while he was watching the trailer, one of the Iranians shot at him. He said he then contacted a deputy who called in an air strike on the trailer, killing all the Iranians. Defendant related a number of similar delusional stories to the police officer.

At trial, defendant raised the affirmative defense of insanity. The jury returned a verdict of guilty but mentally ill on the charge of first degree murder. Defendant was sentenced to 23 years’ imprisonment. This appeal followed.

We first address defendant’s contention that he proved by a preponderance of the evidence that he was not guilty by reason of insanity. Defendant argues that he presented sufficient evidence for the jury to have found that he suffered from a mental disease which substantially impaired his ability to appreciate the criminality of his conduct. When a defendant raises the affirmative defense of insanity, he must show by a preponderance of the evidence that he was legally insane at the time of the offense. (Ill. Rev. Stat. 1989, ch. 38, par. 6— 2(e).) Section 6 — 2 of the Criminal Code of 1961 provides in relevant part:

“(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
* * *
(c) A person who, at the time of the commission of a criminal offense, was not insane, but was suffering from a mental illness, is not relieved of criminal responsibility for his conduct and may be found guilty but mentally ill.
(d) For purposes of this Section, ‘mental illness’ or ‘mentally ill’ means a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person’s judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior or is unable to conform his conduct to the requirements of law.” (Ill. Rev. Stat. 1989, ch. 38, par. 6 — 2.)

The issue of a defendant’s sanity at the time of the offense is generally a question of fact, and a jury’s finding on that issue will not be disturbed unless it is contrary to the manifest weight of the evidence. People v. Janecek (1989), 185 Ill. App. 3d 89, 540 N.E.2d 1139.

At trial, the defense presented the testimony of a number of employees of the Tazwood Center who testified concerning the defendant’s various delusions and hallucinations. Defendant’s mother and stepfather testified that the defendant had been having delusions and fears about the “Jewish Mafia” and the “Iranians” for a number of years. Defendant’s mother also testified concerning the defendant’s history of extensive treatment for mental illness. She gave numerous accounts of defendant’s episodes of hallucination and stated that he claimed to have been “hearing voices” since high school.

The defense also called two expert witnesses. The first was Dr. Robert Chapman, a licensed psychiatrist. Chapman testified that approximately three months after the offense he interviewed the defendant and reviewed his psychiatric and medical history. During the interview, defendant told Chapman of his fears concerning the “Jewish Mafia” and the “Iranians” and claimed that Ron Griffin had been “out to get him.” The defendant gave Chapman the following account of the events of October 16, 1989:

“At the party, I went downstairs to the kitchen. Ron came down and was loud and boisterous and said he was glad Rick [defendant’s former counselor] was leaving and was going to leave and bumped into me and I hit him. Ron looked at me hard and threatened me with ‘be careful as you walk away or else.’
Ron left to go to the Shell station to make a phone call to call the Jewish mafia in Chicago. I walked up behind him to check his back for his small handgun. Ron hit me in the elbow and I hit him three times and I picked up Ron by the arm and said we are going to talk and took him to the Gene Miller Park by the river.
I accused him of shooting someone. He said snide remarks about Romela [defendant’s former girlfriend]. ***
I asked him why he came here from Chicago, why did he come down here and cause trouble. I became angry because I knew Ron was lying to me because Frank was helping me with another vision. I saw Ron shoot a man in front of a yellow house. We walked and talked. I kept asking questions and Ron kept saying, T don’t know.’
The night before I heard someone say that Ron did shoot Romela and that is why I killed him. I believe Ron killed Romela.”

Chapman concluded that the defendant suffered from schizophrenia. He stated that this disease substantially impaired the defendant’s capacity to appreciate the criminality of his behavior. Specifically, Chapman testified that on the date of the offense, the defendant was in a state of psychosis and was suffering from a delusion that Ron Griffin had killed defendant’s girlfriend and posed a danger to him and his family. These beliefs, according to Chapman, motivated the defendant to kill Griffin and feel he was justified in doing so.

The second defense expert was Ted Mathews, a psychologist. He testified that he reviewed Chapman’s files and interviewed the defendant. Mathews agreed with Chapman that the defendant had a mental disorder which substantially impaired his capacity to appreciate the criminality of his conduct.

The State presented the testimony of six lay witnesses in rebuttal. Five of the witnesses were police officers who spoke with the defendant shortly after the offense. Each testified that the defendant seemed calm and rational. The sixth witness, the defendant’s therapist, testified that he had spoken with the defendant a few hours before the killing. It was his opinion that, at that time, the defendant was able to conform his conduct to the law and could appreciate the wrongfulness of killing another person.

The defendant contends that the uncontradicted expert testimony was sufficient to establish that he was legally insane at the time of the offense. The State argues that there was other evidence which the jury could rely on to reject the defense experts’ conclusions and find that the defendant was able appreciate the criminality of his conduct. Specifically, the State points to: (1) the fact that the defendant led Griffin to a somewhat secluded area before killing him; (2) that the defendant turned himself in to the police; (3) the defendant’s statements to the police that he had “finally got” the victim; and (4) the testimony of the State’s rebuttal witnesses that the defendant was calm and rational both before and shortly after the offense.

A jury need not accept the conclusions of a psychiatrist and may properly reach a finding of sanity by accepting lay testimony over expert testimony. (People v. Uppole (1981), 97 Ill. App. 3d 72, 78, 422 N.E.2d 245, 248-49.) Moreover, a jury may accept an expert’s opinion that the defendant was mentally ill at the time of the offense and simultaneously reject that expert’s conclusion that the defendant was legally insane. (People v. Hood (1990), 203 Ill. App. 3d 289, 560 N.E.2d 1187.) After weighing the evidence and the credibility of the witnesses in this case, the jury determined that the defendant had failed to prove by a preponderance of the evidence that he was legally insane at the time of the killing. There was sufficient evidence upon which the jury could rely to reject the conclusions of the defense experts. We find that the jury’s determination was not against the manifest weight of the evidence.

Defendant next contends that his conviction must be reversed and remanded because he was improperly charged with felony murder. Under the felony murder rule, a person who kills another individual without lawful justification commits first degree murder if, in performing the acts which cause the death, he is attempting or committing a forcible felony other than second degree murder. (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(3).) To be convicted of felony murder, the accused need not have intended to kill or even know that his acts will cause death or great bodily harm to the victim. (People v. O’Neal (1984), 104 Ill. 2d 399, 472 N.E.2d 441.) Count VI of the indictment charged the defendant with killing the victim during the commission of an aggravated battery. Under Illinois law, aggravated battery is a forcible felony. Ill. Rev. Stat. 1989, ch. 38, par. 2 — 8.

Defendant argues that a charge of felony murder cannot be based on aggravated battery. Because every murder involves an aggravated battery, defendant argues that every murder could be charged as felony murder, and defendants would be precluded from proving mitigating factors to reduce first degree murder to second degree murder. Therefore, defendant contends that the aggravated battery should merge into the murder as a lesser included offense.

While we find merit in defendant’s argument, our supreme court has specifically held that a charge of felony murder can be based on aggravated battery. (People v. Viser (1975), 62 Ill. 2d 568, 343 N.E.2d 903.) The court in Viser held that the felony murder statute is intended to deter the commission of certain enumerated forcible felonies including aggravated battery.

“[W]e are not concerned with whether the General Assembly, in establishing the offense of felony murder, intended to deter the criminal from the commission of rape, or robbery, or burglary, but not to deter him from the violent assault that accompanies each of those offenses. That kind of fragmentation of legislative purpose cannot survive the forthright characterization of aggravated battery as one of the forcible felonies that will trigger a charge of felony murder. What was intended was to deter the commission of any of the enumerated forcible felonies, including aggravated battery, by holding the perpetrator responsible for murder if death results.” (Viser, 62 Ill. 2d at 580.)

Therefore, in light of the court’s holding in Viser, we reject defendant’s argument that felony murder cannot be based on aggravated battery.

Even if we were to find that the defendant was improperly charged with felony murder, his conviction would still stand. Defendant was charged with six counts of murder. Five counts charged the defendant with intentionally or knowingly killing the victim (Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 1(a)(1), (a)(2)) and one count charged him with felony murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(3)). The jury returned a general verdict of guilty but mentally ill. It is well settled that a defendant convicted by a general verdict is guilty of any good count in the indictment to which proof is applicable. (People v. Brackett (1987), 117 Ill. 2d 170, 510 N.E.2d 877; People v. Baker (1984), 127 Ill. App. 3d 565, 469 N.E.2d 602.) The jury’s general guilty verdict indicates an intention to convict the defendant of first degree murder under sections 9 — 1(a)(1) and 9 — 1(a)(2), as well as felony murder under section 9 — 1(a)(3). Defendant’s conviction would stand based on the five counts properly charged.

Finally, defendant contends that his conviction of first degree murder should be reduced to second degree murder. He claims that he proved by a preponderance of the evidence that he had an unreasonable belief that he was justified in killing Griffin. The offense of first degree murder is defined in section 9 — 1 of the Criminal Code of 1961 in relevant part as follows:

“(a) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
(3) He is attempting or committing a forcible felony other than second degree murder.” (Ill. Rev. Stat. 1989, ch. 38, par. 9-1.)

The offense of second degree murder is defined in section 9 — 2 (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2) in relevant part as follows:

“(a) A person commits the offense of second degree murder when he commits the offense of first degree murder *** and either of the following mitigating factors are present:
* * *
(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.”

The difference between first and second degree murder is the mental state of the offender. In the case of second degree murder, the offender believes, albeit unreasonably, that his use of deadly force is necessary to prevent imminent death or great bodily harm while in the case of first degree murder the offender has no such belief. (People v. Denson (1985), 139 Ill. App. 3d 914, 487 N.E.2d 777.) Once the State has proven the elements of first degree murder beyond a reasonable doubt, the burden shifts to the defendant to prove by a preponderance of the evidence that he had such a belief in order to reduce the offense from first degree to second degree murder. (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2(c).) This court will not overturn a jury’s finding that the defendant failed to establish a mitigating factor unless that finding is clearly contrary to the manifest weight of the evidence. People v. Newbern (1991), 219 Ill. App. 3d 333, 579 N.E.2d 583.

In People v. Purdle (1991), 212 Ill. App. 3d 594, 571 N.E.2d 178, this court was presented with a similar request to reduce defendant’s conviction from first degree murder to second degree murder. In declining to do so, we held:

“[T]he current statutory scheme for homicide does not readily lend itself to reductions in degree by this court from murder in the first degree to murder in the second based on an imperfect self-defense (unreasonable belief that lethal force is justified). While there was certainly some evidence of defendant’s unreasonable belief, we do not find that such evidence clearly outweighed the State’s evidence indicating that no such mitigating factor existed at the time of the killing. Accordingly, we will not disturb the judgment of conviction as entered by the circuit court of Peoria County.” (Emphasis in original.) Purdle, 212 Ill. App. 3d at 600, 571 N.E.2d at 182.

Similarly here, there was some evidence of defendant’s unreasonable belief that self-defense was necessary. He told the police that at the time of the offense Griffin had threatened to kill him. He also told Dr. Chapman and others that he believed the victim was a threat to his family and had killed his girlfriend. However, the evidence of defendant’s unreasonable belief did not clearly outweigh the State’s evidence indicating that no such mitigating factor existed at the time of the killing. The State established that the defendant carried a knife and took Griffin, who was unarmed, to a somewhat secluded area, where he stabbed and beat him to death. The jury could conclude that the defendant did not believe, even unreasonably, that he was in imminent danger of death or great bodily harm when he killed his victim. We find that such a determination was not against the manifest weight of the evidence. Furthermore, the jury may have found the defendant guilty under the felony murder rule in which case he was properly convicted of first degree murder without consideration of any factors in mitigation.

For the reasons stated above, the judgment of the circuit court of Tazewell County is affirmed.

Affirmed.

BARRY and McCUSKEY, JJ., concur.

       Article 7 provides in relevant part that a person “is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another.” Ill. Rev. Stat. 1989, ch. 38, par. 7 — 1.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARIO A. GODINA, JR., Defendant-Appellant.
    Third District
    No. 3 — 90—0564
    Opinion filed December 24, 1991.

      Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Jay Paul Hoffman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Mario A. Godina, Jr., was convicted by a jury of the offense of second-degree murder. The defendant was sentenced to six years’ imprisonment. He appeals. We reverse and remand for a new trial.

Mario A. Godina, Jr., Jose Rojas, Francisco Anguiano, and David Scroggins were all indicted for first-degree murder in the death of Denny Reyes. The indictment alleged that they killed Denny Reyes on February 21, 1990, without lawful justification by shooting him with a gun, knowing that such act created a strong probability of death or great bodily harm to Reyes. Godina was tried by a jury separately from the other indicted individuals.

This shooting was the result of a continuing gang conflict that exists in the Joliet area between the “Latin Kings,” “Vice Lords” and “2-Sixers.” Godina, Rojas and Anguiano were members of the 2-Six-ers. The Latin Kings and Vice Lords are allies despite the fact that the Latin Kings are 90% Hispanic and the Vice Lords are 90% black.

The State called several eyewitnesses to testify. One of the witnesses was David Scroggins, who admitted his involvement in the shooting. About an hour and a half before the shooting, he went to Rojas’ house, where he met Godina for the first time. Godina indicated that on the previous day, some members of the Vice Lords accosted him. Godina, Rojas and Scroggins drove around looking for the Vice Lords. When they saw some members of the Vice Lords, they threw gang signs and rocks at them. They continued driving until they saw some members of the Latin Kings. When they saw the Latin Kings, they chased them, threw gang signs at them, and Rojas fired the .32 caliber handgun at one of the Latin Kings.

Godina, Scroggins, and Rojas returned to Rojas’ house in anticipation of the Latin Kings’ arrival. Anguiano joined them there. Rojas brought out several weapons from his basement. Scroggins took a .38 revolver, Anguiano had a .25 handgun, Rojas took a .30-30 rifle, and Godina grabbed a .22 rifle.

Shortly thereafter, Scroggins noticed a group of approximately 15 people walking down Benton Street. This rival group consisted of members of the Latin Kings and the Vice Lords. Godina testified he heard a popping noise sounding like gun fire coming from the direction of this group. The rival group continued approaching, so the 2-Sixers started shooting at them. Rojas, Scroggins and Godina were in the street as they fired. Anguiano ran closer to the rival group before he fired. At this point, the rival group was about two blocks away. Scroggins did not see any members of the rival group holding any weapons. When the shooting started, the rival group in the street scattered. The shooting lasted for 10 to 15 seconds. The members of the 2-Sixers retreated to Rojas’ basement. Godina exclaimed that he thought he struck a couple of Latin Kings.

Raymond Lopez, Reyes’ cousin, testified that at the time of the shooting, he was in front of his own house at 209 Benton Street. When the shooting began, he ducked down to avoid gunfire, and upon looking up, he noticed Denny Reyes lying on the ground by the front door.

Antonia Lopez, Raymond’s brother, who was with Raymond at the time of the incident, recalled that immediately prior to the shooting, 20 to 25 gang members were walking up Benton Street towards Rojas’ house. Rojas’ house was located about two to three blocks from Lopez’s residence. Antonia stated that there were five persons outside Rojas’ house, all of whom appeared to be of Mexican or Hispanic descent. He did not recognize any of these five individuals. When Antonia heard the shots fired, he dropped to the ground. When he got up, he noticed Denny Reyes had been shot. Antonia said the shots came from far away.

Alejandro Torres testified he was walking alone on Benton Street behind the members of the gang at the time of the shooting. Torres stated he was not a member of any gang. He recollected that members of the gang were taunting the five Hispanic males. Upon hearing gunfire, he ducked behind a car until the shooting ceased. Torres knew Godina and the other defendants, but he he did not recall seeing them at this time or place.

Miguel Orozco testified next. He was a member of the Latin Kings. At the time of the shooting, he was walking on Benton Street with some of his fellow Latin Kings. Upon reaching the area near Rojas’ house, he saw Godina and others who all appeared to be of Hispanic origin. He saw Rojas and Godina holding a rifle. As he heard gunfire, he looked up and saw Godina firing a rifle. He and the other Latin Kings then scattered.

The autopsy determined that Denny Reyes died from a head wound caused by a single high-velocity bullet. Metal fragments were recovered from the left side of his skull. The fatal wound did not resemble a wound caused by a .22, .25, or .38 caliber bullet. It was subsequently determined that the fatal bullet traveled approximately 125 feet prior to striking Reyes.

No fingerprints were removed from the guns or clips that were recovered, and Godina’s hands were not tested for powder burns. It was undetermined if the spent bullets were discharged from the guns recovered or if the bullet found next to Reyes’ body was fired from Godina’s gun. Nor was it determined from which guns, if any, were discharged the copper-jacketed projectile and .22 projectiles recovered from the adjacent doorjamb. The bullet fragment recovered from under Reyes’ body was determined unsuitable for comparison. Three bullet fragments recovered from the left side of Reyes’ skull were mutilated, and no comparison was attempted.

Officer Horvath testified, over objection, that he learned Godina and Rojas had boarded a bus for St. Louis shortly after the incident. He further testified that Godina was arrested upon exiting the bus in St. Louis. Horvath traveled to St. Louis in order to bring Godina back to Joliet.

At the close of the State’s case, Godina sought a directed verdict on the grounds that the State failed to prove he possessed the specific intent to murder Reyes. Godina also argued the State had failed to prove that the killing was not justified. Godina claimed that the theory of transferred intent did not apply to this situation since the indictment alleged the specific intent to murder Reyes, not someone else or another person whose identity was possibly unknown. Therefore, Godina asserted the State had failed to prove him guilty beyond a reasonable doubt of first-degree murder. The trial judge stated that since Godina and the others fired their guns after they heard a popping noise, they could have reasonably believed that they were being shot at by members of the Latin Kings and the Vice Lords. Therefore, Godina could have reasonably believed he was acting in self-defense. The court directed a verdict of acquittal as to first-degree murder and ordered the State to proceed on the charge of second-degree murder.

Godina moved for a directed verdict on second-degree murder arguing that since the State had failed to prove first-degree murder, the State, as a matter of law, failed to prove the elements of second-degree murder. The trial judge denied defendant’s motion.

The jury returned a verdict of guilty as to second-degree murder. Godina moved for a new trial and alleged that Orozco, a material witness for the State, had a pending residential burglary charge which the State failed to disclose to the defense. The trial court ruled that any such error was harmless. Therefore, Godina’s motion was denied. Godina also sought a judgment notwithstanding the verdict because he alleged that the continuation of the trial on second-degree murder violated double jeopardy. The trial court also denied that motion. Godina was then sentenced to six years’ imprisonment.

Godina raises several issues on appeal. Godina contends that he was denied his constitutional right to due process because the State failed to disclose Orozco’s pending residential burglary charge. The State responds as follows: (1) that it is not required to provide a defendant with information about pending charges filed against a material witness in a criminal case; (2) that it exercised due diligence in attempting to provide discovery including this information; and (3) that Godina was not prejudiced by the State’s failure to disclose this information. The prosecutor claimed and the trial court found that the State’s failure to disclose this information was a result of mere inadvertence. The prosecutor stated that she ran a computer check on the witnesses’ juvenile and misdemeanor files under the name “Orazco.” The prosecutor said that was the spelling of the name that appeared in the police reports. The computer check did not reveal any pending charges against “Orazco.” The prosecutor acknowledged that she failed to run a check using the correct spelling of Orozco’s name.

Supreme Court Rule 412(c) provides: “[T]he State shall disclose to defense counsel any material or information within its possession or control which tends to negate the guilt of the accused *** or would tend to reduce the punishment therefor.” (134 Ill. 2d R. 412(c).) Good or bad faith of the prosecutor relative to disclosing discoverable items and facts is unimportant and irrelevant. (Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194.) Due process requires the State disclose to an accused, upon request, evidence that is material to the guilt or punishment of a witness. (Brady v. Maryland, 373 U.S. at 86, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196.) Once a trial court determines that a discovery violation has occurred, the court may order further discovery, grant a continuance, exclude the evidence, or impose any sanction which, in its discretion, it deems just under the circumstances. (134 Ill. 2d R. 415(g).) The State claims that Orozco’s pending felony charge of residential burglary was not material, and therefore, not subject to disclosure under Brady. We disagree. Orozco was a material witness for the State, and his testimony assisted the State in its conviction of the defendant. A defendant has a right to cross-examine and otherwise inquire of a witness concerning pending criminal charges. (Delaware v. Van Arsdall (1986), 475 U.S. 673, 89 L. Ed. 2d 674, 106 S. Ct. 1431; People v. Tonkin (1986), 142 Ill. App. 3d 802, 492 N.E.2d 596.) In resolving this issue, the court should review the entire record and consider any adverse effect the prosecutor’s nondisclosure would have on the preparation and presentation of the defendant’s case. (People v. Gutirrez (1990), 205 Ill. App. 3d 231, 564 N.E.2d 850.) There are a number of important ways that the defense could have utilized this information in preparing and presenting their case. For instance, Orozco was facing the charge of residential burglary, which is a Class 1 felony. (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3.) A person convicted of residential burglary faces a mandatory term of imprisonment of 4 to 15 years. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005-8-l(a)(4), 1005-5-3(c)(2)(F).) Orozco would be highly motivated to assist and cooperate with the prosecution of Godina in order to receive leniency from the State with respect to the residential burglary offense filed against him. The defense certainly would utilize this information in the cross-examination of Orozco’s testimony and to possibly characterize it to the jury as being self-serving, exaggerated, or inaccurate. However, it is not the function of the court to speculate as to exactly how Godina would have utilized this information or what additional evidence it may have revealed had it been disclosed. (People v. Dixon (1974), 19 Ill. App. 3d 683, 312 N.E.2d 390.) However, it is certain that if Godina would have received this information prior to trial, he would have had the opportunity to review and utilize it in the preparation and presentation of his defense. Therefore, we reverse and remand for a new trial based on this issue.

In Giglio v. United States (1972), 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763, the Court held that the trial court erred in denying defendant’s post-trial motion for a new trial based on a similar issue even though the prosecutor was not aware that the witness was offered immunity for his testimony. Generally, a reviewing court will not reverse the trial court’s exercise of discretion in granting a particular sanction in the absence of a showing of surprise or prejudice to the defendant. (People v. Loggins (1985), 134 Ill. App. 3d 684, 480 N.E.2d 1293.) Due to the sensitive nature of this information and the unknown effect on the jury if it had been disclosed, Godina was prejudiced because he was denied the full opportunity to prepare his defense and make necessary tactical decisions with the aid of this information. See People v. Aguilar (1991), 218 Ill. App. 3d 1, 578 N.E.2d 109.

Godina next argues on appeal that he was denied a fair trial because the State introduced prejudicial hearsay testimony from Officer Horvath. Horvath testified that he was informed Godina left the Joliet area following the shooting. Godina claims that the State offered this testimony only for a limited purpose. That purpose was to explain why Horvath did not request the St. Louis police to conduct a scientific test of Godina to determine if he had recently fired a gun. Godina maintains that further prejudice occurred during the prosecution’s closing argument when the prosecutor misused this evidence. The prosecutor inferred that Godina’s flight from Joliet after the shooting exhibited his guilt. We agree with the defense that Godina was prejudiced by the introduction of this hearsay testimony.

During direct and cross-examination of Horvath, he stated he went to St. Louis for the purpose of retrieving Godina, who was in custody. Godina objected several times during Ms. Bertani’s redirect examination of Horvath to the introduction by the prosecution of the following hearsay testimony:

“Q. And you, in the meantime, you received information that the Defendant, Mario Godina, was in Chicago at one time before he went to St. Louis, is that correct?
MR. LENARD: Objection.
THE COURT: Read back the question. (Whereupon, the record was read.)
THE COURT: That will be overruled. You may answer.
MS. BERTANI: Thank you. Did you, at one time, before you went to St. Louis that next day, almost 21 hours later, receive information that Mario Godina was in Chicago at one time?
THE WITNESS: Yes.
MS. BERTANI: You learned that he was in a Greyhound Bus Station?
A. Yes.
Q. You received information he was on a bus travelling to St. Louis?
MR. LENARD: I object to this.
THE COURT: I’m afraid not, Mr. Lenard. She’s asking for the time, and I think you know why.
MR. LENARD: She’s asking leading questions, Judge.
THE COURT: I don’t think they are leading. Objection overruled. Go ahead.
MS. BERTANI: Detective, you knew before you went to St. Louis that Mario Godina was on a Greyhound bus, correct?
A. Correct.
* * *
Q. And, in fact, you contacted the St. Louis authorities to check on the Greyhound bus from Chicago to St. Louis to see if Mario Godina was on there?
A. I did not.
Q. One of the Officers went with you?
A. Correct.
Q. You had been contacted that Jose Rojas was on the bus?
A. Yes.
Q. They were stopped by the St. Louis Police Department on the Greyhound Bus — At the Greyhound Bus Station?
A. Yes.”

The defense contends that the testimony of Horvath was offered by the State only for the limited nonhearsay purpose of showing why Horvath did not request that Godina’s hands be tested to determine whether he had recently fired a gun. In other words, during redirect examination, the prosecutor attempted to bolster her case by encouraging Horvath to explain why he failed to request that Godina’s hands be tested.

However, during closing argument, the prosecutor, over several objections, went a step further and argued the substantive value of this evidence. Specifically, she inferred that Godina’s flight to St. Louis exhibited guilt.

She commented as follows:

“Another thing I’d like you to look at, ladies and gentlemen, when you deliberate, you’ve heard evidence that the defendant was arrested in Saint Louis, Missouri, with Pepe Rojas.
MR. LENARD: Objection, Judge, that is not the evidence.
THE COURT: Approach the bench. (WHEREUPON A CONFERENCE WAS HELD AT THE BENCH.
THE COURT: The objection overruled.
MR. LENARD: Thank you, Judge.
THE COURT: You may proceed.
MS. BERTANI: Thank you, your Honor. Ladies and gentlemen, I want you to consider this: The defendant, as I said, was arrested in Saint Louis, Missouri, with Pepe Rojas. Look at that action, itself. Denny Reyes is killed. They jump on a Greyhound bus—
MR. LENARD: Objection, Judge, there’s no testimony of that in this case.
THE COURT: Approach the bench. (WHEREUPON A CONFERENCE WAS HELD AT THE BENCH.)
THE COURT: The objection overruled.
MR. LENARD: Thank you, Judge.
MS. BERTANI: May I proceed, your Honor?
THE COURT: Proceed.
MS. BERTANI: Mario Godina and Pepe Rojas were arrested in Saint Louis, Missouri. Think about those acts. They jump on a Greyhound bus from Chicago on their way to Saint Louis, and they get stopped and arrested. Even though at that time the police didn’t know who was responsible, what kind of gun that killed Denny Reyes, what kind of bullet killed Denny Reyes, Mario Godina took off and he left the State. Now, doesn’t that tell you that he, in his mind, knew it didn’t matter who hit him?
MR. LENARD: Objection to what went on in his mind, Judge.
THE COURT: The State can argue, as you can, Mr. Lenard, the inferences from the evidence in the case. The jury will decide whether or not to accept those arguments or those inferences.
MR. LENARD: Thank you, Judge.
THE COURT: Objection overruled.
MS. BERTANI: May I again proceed, your Honor?
THE COURT: You may proceed.
MS. BERTANI: Doesn’t that tell you, if you think about it, that even though Mario Godina, Pepe Rojas didn’t know which bullet killed that little boy, he knew that he was just as responsible as whoever did it; why else leave? It’s conscientiousness of guilt that demonstrates a whole lot in this case, ladies and gentlemen.”

Initially, it was error to allow Horvath to testify that Godina boarded a bus in Chicago and was arrested in St. Louis because it was hearsay. (People v. Lopez (1987), 152 Ill. App. 3d 667, 504 N.E.2d 862.) Hearsay statements are generally inadmissible because the party against whom they are offered has no opportunity to test the credibility of the declarant by cross-examining the declarant. (People v. Parrott (1976), 40 Ill. App. 3d 328, 352 N.E.2d 299.) An exception to this rule is when out-of-court conversations are offered to demonstrate and explain certain police procedures or the lack of such, e.g., paraffin testing. (People v. Sanders (1980), 80 Ill. App. 3d 809, 400 N.E.2d 468.) Horvath should have only been allowed to testify to the limited nonhearsay statements that he did not test or request that Godina’s hands be tested. It was prejudicial error for the prosecutor to argue the substantive value of the hearsay evidence to the jury. (People v. Johnson (1990), 202 Ill. App. 3d 417, 559 N.E.2d 1041.) It was additional prejudicial error for the prosecutor to infer Godina’s guilt by flight. (People v. Hunter (1984), 124 Ill. App. 3d 516, 464 N.E.2d 659.) If a prosecutor takes improper advantage of the admissibility of evidence by offering it for a limited purpose, and once it is admitted, makes impermissible use of it during closing argument, that impermissible use will be deemed flagrant and grounds for reversal. (People v. Campbell (1983), 115 Ill. App. 3d 631, 450 N.E.2d 1318.) Additionally, the jury’s consideration of Godina’s guilt by flight could have affected its ultimate decision that Godina was not justified in defending himself by shooting at the rival gang. (People v. Kneller (1980), 83 Ill. App. 3d 325, 403 N.E.2d 1252.) Ultimately, the issue of whether Godina’s belief that he acted in self-defense was reasonable or unreasonable should have been decided by the jury based solely on competent evidence. Furthermore, the hearsay testimony concerning Godina’s flight, coupled with the prosecutor’s improper inference of guilt based upon that hearsay testimony, was the glue that bonded together all the circumstantial evidence in this case. We find the prosecutor’s improper use of Horvath’s hearsay testimony during closing argument denied Godina a fair trial.

Godina next contends that because the trial court directed a verdict of acquittal as to first-degree murder, the trial court thereafter erred in allowing this case to proceed to verdict on second-degree murder. Godina claims the trial court’s ruling violated the principles of double jeopardy. Godina contends the trial judge ruled that Godina’s belief he was acting in self-defense was reasonable. Therefore, Godina alleges that he had a viable affirmative defense of self-defense which constituted lawful justification for second-degree murder. (Ill. Rev. Stat. 1989, ch. 38, pars. 3 — 2, 7 — 1.) Once the State proves the elements of first-degree murder, it is the defendant’s burden to show, by a preponderance of evidence, that a mitigating factor exists. (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2(c).) However, a review of the record clearly reveals the trial judge did not say that Godina reasonably acted in self-defense. Instead, the trial judge stated that Godina and his companions “could reasonably have believed that they were acting in self defense.” In sum, the trial court determined that the prosecution had met its burden as to second-degree murder by showing that an unjustified killing occurred, and that Godina reasonably believed he was acting in self-defense when he took part in the acts which led to Reyes’ death. The trial judge left it up to the jury to determine whether Godina’s actions in self-defense were reasonable or otherwise unreasonable. Regardless of how the jury decided that issue, its ultimate determination would not have resulted in an inconsistent verdict. A verdict of guilty of voluntary manslaughter (predecessor to second-degree murder) and not guilty of murder is not inconsistent. People v. Bridges (1989), 188 Ill. App. 3d 155, 544 N.E.2d 40.

Finally, Godina contends that his conviction should be reversed because the indictment specifically alleged that he shot at Reyes and knew that such act created the strong probability of death or bodily harm to Reyes. Godina claims the evidence revealed that he did not intend to harm Reyes. Therefore, he claims he was prosecuted on the theory of transferred intent, which could not support his conviction for second-degree murder. The indictment specifically stated “[he] without lawful justification killed Denny Reyes by shooting Denny Reyes with a gun, knowing that said act created a strong probability of death or great bodily harm to Denny Reyes.” The law in this State is well settled that where a person shoots at one and in the direction of another, with intent to kill, but kills or injures the other, he may be convicted of the crime of murder or the attempted murder of the unintended victim. People v. Marshall (1947), 398 Ill. 256, 263, 75 N.E.2d 310.

Initially, this issue is resolved by looking at the sufficiency of the indictment. The purpose of an indictment is to advise the accused of the nature of the charge so that he is adequately able to prepare his own defense. In order to vitiate a conviction based on a faulty indictment, there must be a variance between the allegations in the charging instrument and the proof at trial. The variance must be material and of such character as to mislead the defendant in preparing his defense or expose him to double jeopardy. (People v. Davis (1980), 82 Ill. 2d 534, 413 N.E.2d 413.) Otherwise, if the charge is submitted in writing, and states (1) the name of the offense; (2) the statutory provision allegedly violated; (3) the name of the accused; (4) the date and county of the offense; and (5) sets forth the nature and elements of the offense, the indictment should not be dismissed nor will the conviction based on the indictment be reversed on that ground. (People v. Simon (1980), 91 Ill. App. 3d 667, 416 N.E.2d 285.) A variance between the allegations of an indictment and the evidence presented at trial is not always fatal. If a defendant is sufficiently apprised of the charges filed against him, the convictions may be sustained. In People v. Alexander (1982), 93 Ill. 2d 73, 442 N.E.2d 887, the indictment alleged the wrong date of the crime; in People v. Sui Wing Eng (1985), 138 Ill. App. 3d 281, 485 N.E.2d 1222, it alleged the wrong location of the crime; in People v. Long (1978), 65 Ill. App. 3d 21, 382 N.E.2d 327, the defendant who was indicted as principal was actually an accessory to the crime; and in People v. Forrest (1971), 133 Ill. App. 2d 70, 272 N.E.2d 813, the defendant was indicted for murdering the victim; however, the defendant actually shot at a different object or subject.

With regard to the variance in the indictment in the present appeal, we find Godina was sufficiently apprised of the offense he allegedly committed. Our review of the indictment shows that Godina should have been able to adequately prepare his defense based on the facts alleged in the indictment.

For the reasons indicated herein, the circuit court of Will County is reversed, and this cause is remanded to the circuit court for a new trial consistent with the directions contained herein.

Reversed and remanded.

STOUDER, P.J., and SLATER, J., concur.


author: PRESIDING JUSTICE GREEN JUSTICE McCULLOUGH,

text:
    MAXINE MOHR et al., Plaintiffs-Appellants, v. DOROTHY JILG et al., Defendants-Appellees.
    Fourth District
    No. 4 — 90—0775
    Opinion filed January 31, 1992.

      McCULLOUGH, J., dissenting.
    Michael J. McDonald and Howard Lee White, both of Jerseyville, for appellants.
    Thomas Bordenkircher, of Springfield, for appellees.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Plaintiffs Maxine Mohr and her grandson, Robert D. Waters, brought this action under the Dramshop Act (Ill. Rev. Stat. 1987, ch. 43, par. 135) against Alberta Scott and Leroy Scott, the owners and operators of the Oasis Tavern and Restaurant (Oasis). Plaintiffs also brought counts based on negligence against the allegedly intoxicated driver, Dorothy Jilg. The jury returned verdicts against Jilg on the negligence counts, but found Oasis not liable under the Dramshop Act. Plaintiffs appeal the judgment in favor of Oasis. We reverse the judgment for Oasis, and remand for trial on the issue of damages only.

On February 9, 1988, at approximately 6:20 p.m., Maxine Mohr was driving southbound on Route 267 in Greene County. As she neared the Oasis, a car later identified as being driven by Dorothy Jilg pulled out of Oasis’ parking lot and hit Mohr’s car, knocking it into the ditch. Mohr and her grandson sustained severe injuries. Jilg left the scene of the accident. However, her front license plate was knocked off by the collision and police used it to trace Jilg as the driver of the car.

Jilg did not testify at trial due to illness, but her previous deposition testimony was read. In her deposition, Jilg testified she arrived at the Oasis at 4 or 4:30 p.m., but later admitted she could have arrived as early as 3 p.m. She testified she did not drink any alcoholic beverages before arriving at the Oasis. Jilg stated she had two beers at the Oasis: the first immediately upon arrival, then the second a half hour later. Jilg testified she had her last beer 10 or 15 minutes before the accident. When asked whether she was under the influence of alcohol at 6:25 p.m., the time of the accident, she answered “Well, I just drank them two cans. I guess I was.”

Jilg stated that she did not see Mohr’s car collide with hers, and was unaware even that a collision occurred. Jilg’s son, David, testified he was at his mother’s house on the night of February 9, 1988, and that his mother arrived between 6:30 and 7 p.m. David Jilg testified his mother slurred her words and that he smelled alcohol on her breath, but he did not believe she was intoxicated. He testified his mother did not drink any alcohol during their dinner.

Leroy Scott managed the Oasis and tended bar on February 9, 1988, from 1 to 4:45 p.m. He testified Jilg arrived around 3:30 p.m. He served Jilg a 12-ounce can of Stag beer upon arrival, and then a second one around 45 minutes later. Scott testified that based on his observation of Jilg, he did not believe she was intoxicated. Scott was relieved by Harold Mullinck, who tended bar from 5 to 5:15 p.m. He testified he did not serve Jilg anything to drink, but stated Jilg had a glass of beer in front of her. Cletus Beirman, another Oasis bartender, relieved Mullinck at 5:15 p.m. Beirman served Jilg one Stag beer between 5:15 and 6:15 p.m. He stated he was not close enough to notice if alcohol was on her breath, and did not remember seeing her walk. When asked if he was able to form an opinion whether Jilg was intoxicated, Beirman stated, “Well she seemed fine to me when I came to work,” and testified that she was “fine” the last time he remembered seeing her.

Matthew Scroggins, a Carrollton patrolman, was called to the scene of the accident. He ran a registration check of the license plate found at the scene which revealed it to be Jilg’s, and sent a deputy to locate her. Scroggins later saw Jilg at the sheriff’s department at 7:50 p.m. Scroggins testified that at this time she was swaying, appeared unsteady on her feet, slurred her speech, and he smelled alcohol on her breath. Scroggins observed Jilg perform a finger-to-nose field-sobriety test, in which she touched the tip of her nose once in six attempts. Based on his observations of Jilg, Scrog-gins believed she was intoxicated, and arrested her for driving under the influence. Scroggins performed a breathalyzer test at 8:25 p.m., which revealed her blood-alcohol level to be 0.12. Scroggins asked Jilg how much she drank, and she said “three or four.” This statement was admitted only as against Jilg, and not against Oasis.

George Rogers, an Illinois State trooper, testified he saw Jilg at the Greene County sheriff’s department between 7:30 and 8 p.m. on February 9, 1988. According to Rogers, Jilg slurred her speech, her eyes were bloodshot, and he smelled alcohol on her breath. Rogers performed a horizontal gaze nystagmus test on Jilg. He believed Jilg was intoxicated and did not have the ability to operate a motor vehicle.

Rich Snyder was the Greene County deputy sheriff sent to the Jilg house on February 9, 1988. He found Jilg’s car in a shed, with one license plate missing and the rear plate matching the one found at the scene of the accident. He smelled alcohol on Jilg’s breath at 7:17 p.m. when he spoke with her. Jilg’s guilty plea and traffic citation for driving under the influence of alcohol on February 9, 1988, were admitted into evidence only against Jilg.

Upon this evidence, the jury returned verdicts against Jilg. The jury answered “yes” to a special interrogatory which asked, “Was Dorothy Jilg intoxicated at the time of the accident?” The jury, however, found in favor of defendant Oasis on the claim based on dramshop liability. Plaintiffs filed a post-trial motion regarding the count against Oasis. Plaintiffs asked the court to enter judgment n.o.v. or, in the alternative, to grant plaintiffs a new trial on the count against Oasis because they argued the special interrogatory was inconsistent with the general verdict. The trial court denied plaintiffs’ motion and their appeal followed.

Plaintiffs contend the jury’s special interrogatory was inconsistent with its general verdict in favor of defendant Oasis, finding it not liable under the Dramshop Act. The Dramshop Act provides a cause of action for those injured by intoxicated drivers against “any person, licensed under the laws of this State *** to sell alcoholic liquor, who, by selling or giving alcoholic liquor *** causes the intoxication of such person.” (Ill. Rev. Stat. 1987, ch. 43, par. 135.) The legislative intent of the Dramshop Act is to place the responsibility for damages occasioned by the use of alcohol on those who profit from its sale. Kingston v. Turner (1987), 115 Ill. 2d 445, 457, 505 N.E.2d 320, 325.

The jury’s answer to the special interrogatory finding that Jilg was intoxicated at the time of the accident should not be disturbed upon appeal absent a finding that it is against the manifest weight of the evidence. (Buford v. Chicago Housing Authority (1985), 131 Ill. App. 3d 235, 249, 476 N.E.2d 427, 438.) The circumstances surrounding the accident, Jilg’s testimony that she “guessed” she was intoxicated, her son’s testimony that she slurred her words when she arrived home that night, and the various police officers’ testimony that Jilg was intoxicated abundantly support the jury’s special interrogatory that she was intoxicated at the time of the accident. The function of the special interrogatory is to “test the jury’s general verdict against its conclusions as to the ultimate controlling facts.” (Duffin v. Seibring (1987), 154 Ill. App. 3d 821, 835, 507 N.E.2d 930, 939.) When the answer to the special interrogatory is inconsistent with the jury’s general verdict, the special interrogatory controls. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1108.

In order for Oasis to be liable under the Dramshop Act to a plaintiff, the jury had to find the following propositions: (1) Jilg was intoxicated at the time of the accident, (2) Oasis provided intoxicating liquor consumed by Jilg, (3) the liquor provided by Oasis caused the intoxication of Jilg, (4) Jilg’s intoxication was at least one cause of the accident, and (5) as a result of the occurrence, each plaintiff suffered injury and/or damage to his or her property. By its answer to the special interrogatory, the jury found Jilg was intoxicated at the time of the accident. Oasis admitted serving intoxicating liquor to Jilg.

The remaining factors which plaintiffs were required to prove in order to recover on the dramshop counts were not controlled by the answer to the interrogatory or the verdict against Jilg. The question whether the plaintiffs each suffered injury or damage as a result of the occurrence was not necessarily determined by the verdict against Jilg as that verdict is entitled to no more weight than the verdict on the dramshop counts which could, in the abstract, have resulted from a jury determination that no injury or damage had occurred to any plaintiff as a result of the collision. However, the evidence was overwhelming that at least some injury or damage did so occur to each plaintiff. Any finding to the contrary could never stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) Similarly, under Pedrick, the overwhelming proof required the jury to find that Jilg’s intoxication (1) was caused by Oasis, and (2) was one proximate cause of the collision.

To cause the intoxication of an individual, the dramshop must furnish more than a negligible amount of alcohol to the person. (Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, 812, 360 N.E.2d 108, 111.) The alcohol furnished at two separate taverns may cause a single intoxication, subject to the limitation that a tavern may not be held liable for a de minimis contribution to an individual’s intoxication. Kingston, 115 Ill. 2d at 456-57, 505 N.E.2d at 325.

Logically, for Oasis not to have caused Jilg’s intoxication, she must have become intoxicated prior to arriving at the Oasis — and remained intoxicated for a period of approximately three hours as a result of her prior drinking — and the two to three beers she consumed at the Oasis must have contributed only a negligible amount to her intoxication. For Oasis not to be liable, it is necessary that Jilg became intoxicated prior to arriving at the Oasis since she had no opportunity to consume additional alcohol after leaving the Oasis, as the accident occurred immediately after Jilg exited Oasis’ parking lot. However, no evidence was presented at trial to support the conclusion that Jilg was intoxicated when she arrived at the Oasis, and that she was so intoxicated that the two to three beers contributed only a de minimis amount to her intoxication. There was no direct evidence that she drank alcohol anywhere except at the Oasis prior to the accident.

The trial court relied on Kingston in determining that there was no inconsistency between the jury’s special interrogatory and its general verdict. In Kingston, the supreme court held it possible for the jury to find that an individual was intoxicated at the time of the accident, but that his intoxication was not caused by either of the two bars where he drank, when no clear evidence was presented proving that he drank more than negligible amounts of beer at either bar. However, Kingston is distinguishable because in that case there was direct evidence that the intoxicated motorcyclist consumed alcohol at two different bars, but no clear evidence he had more than negligible amounts of alcohol at either, and the jury was forced to decide whether one or both caused the intoxication. Here, by contrast, Oasis admitted serving Jilg more than a negligible amount of alcohol, and there was no evidence presented that Jilg consumed any alcohol prior to arriving at the Oasis.

In its denial of plaintiffs’ post-trial motion, the court in the instant case stated:

“[The jury] did not have to believe Jilg’s statement that she did not consume any alcohol before entering the Oasis. *** They could have not believed Jilg when she said she did not drink any alcohol before entering the Oasis.” (Emphasis added.)

While the credibility of witnesses and weight given to their testimony are typically for the jury’s consideration, a jury may not arbitrarily reject a witness’ testimony. The Illinois Supreme Court has stated, “Where the testimony of a witness is neither contradicted, either by positive testimony or by circumstances, nor inherently improbable, and the witness has not been impeached, that testimony cannot be disregarded even by a jury.” (People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 85, 430 N.E.2d 1126, 1127.) Brown involved a paternity case in which defendant admitted to having sexual intercourse with the plaintiff over a period of months, and despite a complete absence of evidence that plaintiff had intercourse with anyone else, the jury returned a verdict for defendant. The jury apparently rejected the testimony of plaintiff that she had not had intercourse with anyone except defendant. The court held that while the jury is usually free to disbelieve a particular witness, “ ‘it may not make an affirmative finding that the exact opposite of [a witness’] testimony is true if there is no evidence to support such a finding.’ ” Brown, 88 Ill. 2d at 86, 430 N.E.2d at 1128, quoting 30 Am. Jur. 2d Evidence §1080, at 227 (1976).

In the instant case, the jury must have believed the exact opposite of Jilg’s testimony that she did not drink anywhere but the Oasis the day of the accident, despite the absence of any evidence indicating that she did. Jilg’s testimony that she did not drink prior to arriving at the Oasis was uncontradicted. It was, in fact, supported by Cletus Beirman’s testimony that Jilg did not appear intoxicated at 5:15 p.m. Similarly, it was not inherently improbable that Jilg did not consume any alcoholic beverages prior to arriving at the Oasis at 3:30 p.m., drank two to three beers, and was intoxicated at the time of the accident, 6:25 p.m. Jilg’s blood-alcohol level of 0.12 does not contradict her testimony that she did not consume any alcohol prior to arriving at the Oasis.

The strength and uncontradicted nature of the evidence also required a determination that Jilg’s intoxication was a proximate cause of the collision. It occurred almost immediately after she left the Oasis, where she had been drinking. Jilg drove out of the Oasis parking lot and collided with the automobile in which the plaintiffs were riding. No evidence indicated any other explanation of the collision other than that plaintiff was inattentive. Given the fact that Jilg was intoxicated at this time, any explanation of the occurrence which does not include Jilg’s impairment from intoxication as a proximate cause of the collision defies reason. The causal relationship between the intoxication and the collision was proved as a matter of law.

Accordingly, under Pedrick, we find that the evidence when viewed most favorably to Oasis so overwhelmingly favors plaintiffs as to the Dramshop Act count that no contrary verdict could ever stand. We reverse the judgment on the verdict in favor of Oasis and grant judgment n.o.v. in favor of plaintiffs and against Oasis as to liability on the Dramshop Act count and remand for retrial as to that count on the question of damages only.

Reversed and remanded.

LUND, J., concurs.

JUSTICE McCULLOUGH,

dissenting:

I do not agree that Jilg’s intoxication was necessarily a proximate cause of the accident. The findings by the jury that Jilg was intoxicated and the Oasis not liable in damages are not necessarily inconsistent.

Intoxication alone is not proximate cause. I strenuously disagree with the majority statement:

“No evidence indicated any other explanation of the collision other than that plaintiff was inattentive. Given the fact that Jilg was intoxicated at this time, any explanation of the occurrence which does not include Jilg’s impairment from intoxication as a proximate cause of the collision defies reason. The causal relationship between the intoxication and the collision was proved as a matter of law.” 223 Ill. App. 3d at 223.

The violation of a State law relating to drinking, in itself, is not proof that the violation was the cause of the accident. Finding Jilg liable for damages on the negligence issue is not determinative of the Oasis’ liability.

The jury was instructed as to negligence:

“The plaintiffs claim that they were injured and sustained damage, and that the defendant was negligent in one or more of the following respects:
a. Failing to yield the right-of-way upon entering Illinois Route 267; and
b. Driving while under the influence of intoxicating liquor.”

The jury was further informed that the plaintiff had to prove:

“First, *** Dorothy Jilg, acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and *** was negligent.”

The jury returned a general verdict of negligence and was not asked to specify whether the plaintiff proved either or both of the alternative grounds for that finding. The special interrogatory only asked the jury whether defendant was under the influence.

The jury could have concluded that while Jilg was intoxicated (and that the tavern sold her the liquor and caused the intoxication), the proximate cause of the accident was Jilg’s failure to yield the right-of-way irrespective of the intoxication.

Because the jury did not explicitly find that Jilg’s intoxication was at least one cause of the accident or was a necessary or mandatory inference required by the evidence, the jury could have determined the injury was not caused “by the intoxication” of Jilg based upon the instructions given as applied to the evidence presented.