author: PRESIDING JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES JONES, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—2550
    Opinion filed August 18, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Timothy J. Leeming and James H. Reddy, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Bonnie Meyer Sloan, and Peter T. Petrakis, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendant, James Jones, was convicted after a bench trial of intentional murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(1)), for the shooting death of Leslie Williams and sentenced to a 22-year term of imprisonment. His sole contention is that the evidence failed to establish his guilt beyond a reasonable doubt.

James Jones (James) and his codefendants, Edward Jones (Edward) and Willie Merriweather, were charged by indictment with murder in the shooting death of Leslie “Chuckie” Williams. James and Edward are sons of Merriweather. It was the State’s theory that James shot the victim at the behest and encouragement of the two other defendants to avenge the beating the victim had just administered to Merriweather. Edward and Merriweather were found not guilty on the ground enunciated by the trial judge that their accountability in the shooting had not been proved beyond a reasonable doubt.

The State’s key witness, Elizabeth Carson, testified as follows: On Friday, May 16, 1986, at approximately 5:30 p.m., she, Williams and several others were playing softball on a vacant lot at 55th Street and Emerald Avenue in Chicago. She had known Williams for nine years and considered him to be a member of the family. She observed Willie Merriweather walking in an alley adjacent to the lot. Williams grabbed a baseball bat out of her hands, ran up to Merriweather and began striking him with the bat. She told Williams to stop hitting Merriweather and to give her the bat; and he complied. Then two other men, whom Carson later identified as James and Edward Jones, came running down the alley toward the lot. She had seen both of them together around the playground about eight times over the previous month, but she did not know at that time that they were Merriweather’s sons. James was wearing a black sweatsuit with red stripes and gym shoes; he had no hat and his hair was braided. She did not get a clear look at Edward’s clothes but noticed that he was not wearing a hat either.

As they approached, Merriweather told them “to go and get it.” Edward responded, “You want us to go get it?” Merriweather said, “Yes.” James and Edward then ran back down the alley. Carson and Williams started walking back to the vacant lot and then headed toward Williams’ house across the street. A few moments later Carson saw James and Edward run toward her and Williams. Edward stopped at a tree about 30 feet away from them and told James, “[Tjhat’s the motherfucker. Get him.” James had continued running and was about five feet away when Edward spoke. Carson saw that James had a brown pistol in his hands. She jumped in front of Williams and told James, “Don’t do it.” James went around her and shot Williams, who fell. As Williams lay face down in the lot, James shot him in the back. She identified all three defendants in court.

Detective Thomas Byron spoke to Carson at her home shortly after the shooting. Although she was coherent and did not appear to be under the influence of drugs or alcohol, Byron was unable to interview her at length because she was so distraught. Carson screamed that she wanted the people who had shot Williams arrested and said that one of them was Merriweather. She provided no other details.

Later that day Carson took an overdose of pills in a suicide attempt. She had attempted suicide once before, in 1982. She had seen a psychiatrist in 1982 and 1984 but was not under care or medication at the time of the shooting.

The next day Detective William Foley and his partner, Detective Cigielski, interviewed her at the hospital and showed her 10 photographs. In Foley’s opinion, she seemed rational and coherent. She identified the photographs of Merriweather, James and Edward, and named James as the gunman. She admitted on cross-examination that although she testified that the gunman had his hair in braids, James did not have braids in the photograph. She told the detectives that Williams struck Merriweather with a bat just prior to the shooting, and that Edward directed James to shoot Williams; but Foley did not put these matters in his report. However, Carson did not tell the police certain other details: that she had seen Edward and James on prior occasions; that Merriweather told Edward and James to “go get it,” that Edward told James, “That’s the motherfucker”; or that she told James, “Don’t do it.”

On May 22, after Carson was released from the hospital, she attended a lineup conducted by Byron and identified James and Edward. Merriweather was not in the lineup.

She was reinterviewed by the police and provided more details about the shooting. She stated that she had seen James and Edward before, although she did not provide specifics. She told Byron that Merriweather told Edward and James to “go get it.” She also quoted Edward as saying, “That’s the boy right there. Get him,” rather than, as she testified at trial, “That’s the motherfucker right there. Get him.” She did not state that Williams grabbed her bat and struck Merriweather with it. She told Byron that after the beating Williams threw the bat away, not that she took it from him.

The parties stipulated that Dr. Choi, an assistant medical examiner, would testify that the deceased was shot twice; once on the left side and once in the back.

Byron and an assistant State’s Attorney also interviewed James Jones, who stated that he was with his girlfriend, Lisa Shields, on May 16 at 5:30 p.m. He had stayed at her house the night before. On the day of the shooting he had left the house at about 3 p.m., taking his son to the park. He bought a 40-ounce can of beer at a liquor store, and they remained at the park until about 8 p.m. Afterwards they returned to Lisa’s, where he spent the night. He left Lisa’s house on Saturday, saw his father and at that time first learned about the beating. Byron talked to Lisa Shields and then spoke with James again. He told James that Lisa did not back his story. James related the same account of his whereabouts on the day of the shooting and said that Lisa must be lying.

It was the defendant’s theory that a second person was the gunman. That gunman was identified by Shaheed Bryant, who was eight years old at the time of the shooting. He testified that on May 16 he was playing frisbee with a friend in the vacant lot adjacent to his house at 5521 South Emerald, which was across the street from the ball field. He did not remember seeing Carson on the lot but did see Williams beat Merriweather with a baseball bat. After the beating he saw two persons and a boy with a black gun approach Williams. He identified the person with the gun by his nickname, “Trouble.” “Trouble” was present in court and identified himself as Ira Phillips. (Phillips is another son of Merriweather and the half-brother of James and Edward. James and “Trouble” do not resemble one another; “Trouble” was only 14 years old and considerably thinner than James, who was 20 years old at the time of the shooting.) Shaheed knew “Trouble” and that he was Merriweather’s son. He saw “Trouble” shoot Williams from behind. He heard three rapid shots and Williams fell; Williams was not shot again while on the ground. After the shooting, “Trouble” ran toward his house while the other two men ran past the house. He never saw the other men’s faces but noticed that they were wearing hats. He then ran into his house and told his mother that “Trouble” shot Williams. He did not remember telling anyone else.

Shaheed was impeached by a prior statement he made on March 31, 1987. At that time he was interviewed by several assistant State’s Attorneys and defense attorneys. There was a stipulation that Assistant State’s Attorney John Wasilewski would testify that Shaheed stated in that interview that he was having trouble remembering the incident; that Williams did not have a baseball bat when he was shot; that the bat was on the ground three feet away; and that Williams was first shot in the front, then in the back and then again in the front as he lay on the ground. At trial Shaheed explained that he was so nervous during the March interview that he “was just saying anything.” He admitted that his statement about the sequence of shots was not true. He stated that he was confused in March but was not confused at the trial and was telling the truth.

Elois Kimble and Cynthia Thomas also testified for the defense. On the night of the shooting they were sitting with Debra Gildart on a porch at 5521 South Emerald, where Thomas lived. Both saw Williams playing softball, and Carson was nearby. Merriweather was walking down the alley when Williams grabbed the bat from Carson and went over to Merriweather and hit him with the bat. Kimble testified that because of the distance, across the street and three doors down, she could see but not hear the blows fall. Thomas, in contrast, testified that the blows were so loud that she had to go into the house to avoid hearing them.

Everything happened very fast according to Kimble, but she remembered four men running through the alley. One had a gun and shot Williams in the back from a distance of about 12 feet. Kimble heard three shots. Williams was still holding the bat as he was shot. Kimble could not describe the gunman or even tell if he was wearing a hat. She said that the only person close to Williams was Carson, who was looking at Williams as the men approached. After the shooting the men ran back up the alley. She never met Edward or James and could not say whether they or “Trouble” were there.

Thomas testified that she was in the bathroom when she heard the shots and ran to the front porch. At that time Williams was on the ground. She saw men running south toward 56th and Emerald and then cut through an alley. She could not tell if any of the men were James, Edward or “Trouble”; and did not see anyone with a gun, although she noticed that one man had a blue hat with orange trim. After the shooting, Thomas saw Shaheed run into the house and call to his mother, “Mama, they shot Chuckie [Williams], they shot Chuckie.”

The State impeached Thomas with a prior statement she gave to Byron in which she stated that she saw Williams beating someone with a bat but could not tell who it was. She was also impeached by a statement she gave to the defense investigator in which she detailed the shooting itself, an event she stated at trial she did not witness. Thomas conceded that the statement she made to the defense was not accurate and explained that she made it to help Edward and James.

Willie Merriweather testified that James and Edward lived with their mother. On the day of the shooting he was talking with two others in the alley near the vacant lot. Williams approached and asked if Merriweather remembered him, and Merriweather said that he did. He and Williams had had a disagreement a few weeks before, but he denied that he threatened Williams. Williams then walked away, got a baseball bat from someone named “O.D.” and struck Merriweather with it. Carson stepped up and stopped the attack. Williams began to walk back toward his house, keeping the bat. As Merriweather walked away he heard three shots. He did not see Edward, James or “Trouble” there. He denied owning a gun.

Geraldine Phillips, who lived with Merriweather and was the mother of Ira Phillips, testified that she was at their home from 3:00 p.m. on May 16 and did not see either James or Edward the entire day. Merriweather went out at about 4:30 p.m., and returned about a half hour later with injuries to his arm. She also stated that he kept no weapons in the house.

The testimony of Merriweather and Ms. Phillips that neither James nor Edward was at the house that day and that they did not see either of the brothers was contrary to a statement made by Edward Jones to the police. Byron testified as to statements Edward made to him on May 22. Edward at first claimed that he was with his girlfriend at the time of the shooting but changed his story when informed that she did not support his alibi. Edward then stated that he had been at his father’s house when someone told him that his father was being beaten. In response, Edward left the house, ran to the vacant lot and saw his father and another man who had a baseball bat. That man put the bat down and walked away. Edward approached his father, saw his injured hand and suggested he go to Englewood Hospital. As Edward and Merriweather began to walk back to Merriweather’s house, Edward left his father and went to play basketball at a lot north of the shooting scene-. While playing ball he saw gang members running down the alley; he then returned to his father’s house, got his shirt and took a bus home.

The defendant denied being near the vacant lot on the day of the shooting. He denied seeing his father being beaten, and he denied shooting the victim. He admitted on cross-examination that he told Byron that at the time of the shooting he was at Cornell Park but that was not true; instead he was at his girlfriend’s house and remained there all day. He testified that his girlfriend’s mother, Catherine Shields, also was present throughout the day and evening. He stated that the reason for the discrepancy between his statement and his testimony was that he was confused as to which day the detective was asking him about. He said that he mistakenly told the detective his whereabouts for Saturday, May 17, rather than Friday, May 16. Neither Catherine nor Lisa testified at trial; Lisa died before trial, but Catherine’s absence was not explained.

Byron testified in rebuttal that on May 22 he was very clear with the defendant when he questioned him concerning his whereabouts during the shooting. In fact, Byron asked the defendant what he did on Thursday, the day before, and Saturday, the day after. James told Byron that on Saturday, the day after the shooting, he went to the park and stayed there five hours; and it was that day that he talked to his father about his injured hand. On cross-examination Byron acknowledged that Lisa Shields told him that on May 16 she and James stayed at home the entire day watching television and listening to records, which was consistent with the alibi James offered at trial.

The State also called Ira “Trouble” Phillips in rebuttal, but he invoked his Fifth Amendment right to remain silent.

Following closing arguments the judge found James guilty but found Merriweather and Edward not guilty on the ground that there was reasonable doubt as to their accountability. He expressly found Carson’s testimony to be credible, noting that “she was the voice of reason on that empty lot.” In his opinion, her prior psychiatric background and suicide attempt in response to witnessing this traumatic event did not render her a liar or an undependable witness. He also found that she had an excellent opportunity to observe the events. He noted that even defense witnesses Thomas and Kimble put her nearest the scene. Her testimony that she had seen the defendants several times around the neighborhood in the few weeks before the shooting was supported by the testimony of Thomas and Geraldine Phillips. Carson picked the defendants out of a photo array and made a line-up and in-court identification with no hesitation or difficulty. In contrast, the judge specifically found Shaheed to be an unreliable witness and also expressly rejected James’ alibi, terming it “weak" and “unreliable.”

The defendant first asserts that the conviction must be reversed because the State’s evidence failed to meet the standard requiring the exclusion of a reasonable hypothesis of innocence. However, the cases cited by the defendant for this proposition involved convictions based solely on circumstantial evidence, whereas in the present case there was direct evidence offered. In addition, the supreme court has held that even in circumstantial evidence cases the State need no longer prove that the facts or circumstances exclude every reasonable theory of innocence. (People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413.) Therefore, the standard before the reviewing court is whether no rational trier of fact, after viewing all the evidence in the light most favorable to the prosecution, could have found the defendant guilty beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

The sufficiency, weight and credibility of the testimony of eyewitnesses is for the trier of fact to determine. (People v. Stringer (1972), 52 Ill. 2d 564, 289 N.E.2d 631.) Positive identification by a single witness is sufficient to sustain a conviction, even if there is contradictory alibi testimony, provided the evidence establishes that the witness is credible and viewed the defendant under circumstances that would permit a positive identification to be made. (People v. Yates (1983), 98 Ill. 2d 502, 456 N.E.2d 1369.) An identification is considered reliable where a witness had an adequate opportunity to view the assailant, showed an adequate degree of attention, described the assailant with a reasonable degree of accuracy, displayed a sufficient amount of certainty in identifying the accused and made the identification within a reasonable period of time. People v. Slim (1989), 127 Ill. 2d 302, 537 N.E.2d 317; People v. Williams (1989), 185 Ill. App. 3d 1040.

The testimony of the State’s eyewitness, Elizabeth Carson, meets these requirements. She was within a few feet of the victim and the assailant, points corroborated by the defense witnesses, Kimble and Thomas. Carson had seen the defendant several times in the recent past; and testimony of an identification witness is strengthened to the extent of the prior acquaintance with the accused. (People v. Reynolds (1978), 57 Ill. App. 3d 593, 373 N.E.2d 650.) Carson identified the defendant on three separate occasions: in the photo display; at the lineup and at trial. She described the gunman as having braids, and the defendant did not have braids when his picture had been taken. We are unable to tell from the record whether the defendant had braids at the time of his arrest. In the final argument, the defendant’s attorney argued that Carson initially did not tell the police that the man who did the shooting had braids. We think it significant that he did not argue that the defendant did not have braids at the time of his arrest. Therefore, we do not view the fact that the defendant did not have braids at the time his identification picture was taken as having any effect on the testimony of Carson that the defendant had braids at the time of the shooting.

In addition, contrary to the defense contention, there was physical corroboration of Carson’s testimony. For example, her testimony concerning the sequence of shots was consistent with the stipulated testimony of the assistant medical examiner. She was the only witness who testified that Williams was shot only twice; the others testified to three shots.

• 6 It is true that her trial account of what Edwards said to James before the shooting differs somewhat from what she told the police, but not in a significant way. It is also true that Carson did not relate several details concerning the shooting during earlier interviews. However, she was consistent and unwavering on the key elements of the case, namely the identity of the gunman, and any minor discrepancies in her account of the events will not warrant reversal. People v. Crespo (1983), 118 Ill. App. 3d 815, 455 N.E.2d 854.

Contrary to the defendant’s argument, it was not inconsistent for the judge to convict James of murder on the basis of Carson’s testimony, yet not convict his two codefendants; and we reject the defendant’s assertion that the judge’s decision was inconsistent or constituted a finding that Carson was incredible about Merriweather or Edward. Although he did not expand upon his reasoning on this portion of his ruling, we find it logical that he believed Carson, yet concluded nonetheless that her testimony and the other evidence were inadequate to convict.

As the defense argues, there is some evidence, the testimony of Shaheed, that “Trouble” was the gunman. But the trial judge heard and saw Shaheed. It was his province to determine Shaheed’s credibility and the weight to be given his testimony. It is not for us to substitute our judgment for his.

The same observation must be made about the defendant’s argument that he had established an alibi. The defendant gave conflicting accounts of his whereabouts at the time of the shooting. He also failed to produce an alibi witness, Catherine Shields, or to explain her absence. Although the failure to substantiate an alibi may not be used as proof of the charge (People v. Kubat (1983), 94 Ill. 2d 437, 447 N.E.2d 247), it may be considered in determining the credibility of the defendant and the validity of his purported alibi.

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and QUINLAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARTHOLOMEW HARRIS, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—0410
    Opinion filed August 21, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Christine Perille, Special Assistant State’s Attorney, and Inge Fryklund and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Bartholomew Harris (defendant) was charged by information with aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14), criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12— 13), aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 16), and unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10— 3). After a jury trial on these charges, defendant was convicted of aggravated criminal sexual assault, criminal sexual assault, and aggravated criminal sexual abuse. Because the trial court determined that the lesser included offenses of criminal sexual assault and aggravated criminal sexual abuse merged into the aggravated criminal sexual assault offense, defendant was sentenced to 25 years in prison with three years of mandatory supervised release solely on the aggravated criminal sexual assault conviction.

Defendant appeals his convictions and sentence, contending that (1) the State failed to prove him guilty beyond a reasonable doubt for the crimes of criminal sexual assault and aggravated criminal sexual assault; (2) the trial court erred in accepting the State’s jury instructions on an element of the offenses; (3) the State committed reversible error in misstating the law and the facts in closing argument to the jury; (4) the trial court erred in not requiring the State to provide a bill of particulars; and (5) the sentence of 25 years in prison with three years of mandatory supervised release was excessive. We affirm in part and vacate in part.

The State introduced testimony at trial that in March 1985, the victim, seven-year-old Vanessa Miela, approached her mother, Sharon Miela, and stated that defendant, who had been living with them, had been touching her in the vaginal area. The victim also told her friend, Serese, that the defendant was touching her.

On June 28, 1985, the Chicago police department received information concerning the aforementioned events. The officer assigned to the case, Donald Petersen, initially spoke with the victim’s friend. Subsequent to speaking to the victim regarding the information received, Petersen placed defendant under arrest and took the victim to Provident Hospital, where she was examined.

From this examination, Dr. David Blackwell, a physician and surgeon at Provident Hospital, testified that the victim “had a tear in her, on the outer aspect of her vagina.” Dr. Blackwell found that the injury was “consistent with sexual abuse.” He further testified that the victim told him that someone had been fondling her in the vaginal area.

The victim testified that defendant came into her bedroom on numerous occasions and touched her beneath her underwear. At times, defendant would unzip or take off his pants exposing his penis to the victim. The victim also testified that defendant would masturbate to ejaculation while he touched the victim’s “middle.” To demonstrate how defendant touched her and what she meant when referring to her “middle,” the victim rubbed an anatomically correct doll, given to her by the State, in the vaginal area and placed her right finger inside the vaginal opening of the doll. The victim further stated that during the course of these events, defendant would cover the victim’s mouth and hold her down on the bed.

An assistant State’s Attorney, Richard Pullano, testified that he interviewed defendant at the police station on June 28, 1985. Defendant told Pullano that he had rubbed the victim’s vagina and masturbated in her presence until he ejaculated in his hand, and that he grabbed the victim’s chest and made her kiss and touch his penis. He further stated that he engaged in this activity several times a month with the victim, but could not remember the exact number because he was usually drunk. After the interview, Pullano prepared a handwritten summary of defendant’s statement, which the defendant signed as being true and accurate.

The defendant testified on his own behalf. He denied engaging in any of the above activities with the victim. Defendant explained that he signed the statement at the police station because the police and Pullano said they would not take his children away from him, because he could not read well, and because he did not understand Pullano’s prepared statement. Defendant claimed that Pullano fabricated the statements concerning his actions toward the victim, but admitted on cross-examination that Pullano read the statement to him and that he was not coerced to sign it.

As to his first contention that the evidence presented at trial did not prove him guilty beyond a reasonable doubt for the offenses of criminal sexual assault and aggravated criminal sexual assault, defendant argues that the State failed to prove “sexual penetration” for the charged crimes. An essential element of the crimes of criminal sexual assault and aggravated criminal sexual assault is “sexual penetration.” (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 13(a), 12 — 14(b).) The Criminal Code of 1961 (the Code) defines “sexual penetration” as follows:

“ ‘Sexual penetration’ means any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however, slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.” Ill. Rev. Stat. 1985, ch. 38, par. 12 — 12(f).

In support of his contention that the State did not prove sexual penetration, defendant relies on the case of In re Williams (1974), 24 Ill. App. 3d 593, 321 N.E.2d 281, to construe the word “intrusion.” Defendant argues, based on In re Williams, that the requirement of an “intrusion” involves an “insertion.” (In re Williams, 24 Ill. App. 3d at 598, 321 N.E.2d at 284.) Defendant maintains that the State failed to meet its burden of proving insertion beyond a reasonable doubt. We disagree with defendant.

As the State argues, sexual penetration can be committed by “any intrusion, however slight.” (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 12(f).) The issue of whether sexual penetration did occur is a question of fact for the jury to determine. (People v. Shivers (1975), 29 Ill. App. 3d 359, 360, 330 N.E.2d 288, 289; In re Williams, 24 Ill. App. 3d at 598, 321 N.E.2d at 284.) A reviewing court will not encroach upon the jury’s function to weigh the credibility of the witnesses or otherwise assess the evidence (People v. Yates (1983), 98 Ill. 2d 502, 518-19, 456 N.E.2d 1369, 1377-78; People v. Nelson (1986), 148 Ill. App. 3d 811, 821, 499 N.E.2d 1055, 1062), but will set aside a guilty verdict if evidence is so palpably contrary to the finding or so unreasonable, improbable, or unsatisfactory as to leave a reasonable doubt about the accused’s guilt (People v. Shum (1987), 117 Ill. 2d 317, 356, 512 N.E.2d 1183, 1198; Yates, 98 Ill. 2d at 518-19, 456 N.E.2d at 1377-78; People v. Williams (1982), 93 Ill. 2d 309, 315, 444 N.E.2d 136, 138). Furthermore, a conviction for criminal sexual assault will be upheld by a reviewing court where the testimony of the victim is clear and convincing or substantially corroborated by other evidence. People v. Server (1986), 148 Ill. App. 3d 888, 895, 499 N.E.2d 1019, 1024; People v. Morgan (1986), 149 Ill. App. 3d 733, 739, 500 N.E.2d 1121,1125.

We find the evidence here proved beyond a reasonable doubt the element of sexual penetration. First, the victim’s testimony, when examined in its entirety, clearly and convincingly establishes sexual penetration. She testified that the defendant tried to put his finger in her vagina. She depicted defendant’s acts to the jury by inserting her finger into the vaginal opening of an anatomically correct doll. This testimony was clear and convincing proof of sexual penetration. See People v. Hutson (1987), 153 Ill. App. 3d 1073, 506 N.E.2d 779 (child’s testimony, utilizing an anatomically correct doll, found clear and convincing to prove the act of sexual penetration by finger).

Mere discrepancies will only affect the credibility of the witness. (People v. Redman (1986), 141 Ill. App. 3d 691, 703, 490 N.E.2d 958, 966.) It is for the trier of fact to weigh any discrepancies, and, if minor, the victim’s testimony may still be considered clear and convincing. (Redman, 141 Ill. App. 3d at 703, 490 N.E.2d at 966.) We find the victim’s testimony to be clear and convincing, and any minor discrepancies in her testimony do not constitute reasonable doubt as to the defendant’s guilt on the charges of aggravated criminal sexual assault and criminal sexual assault.

Moreover, the victim’s testimony was corroborated by Dr. Blackwell’s testimony. Medical testimony, such as Dr. Blackwell’s, which supports the allegations of sexual abuse, may corroborate the victim’s testimony if the victim’s testimony is not clear and convincing. Dr. Blackwell testified that the victim had a tear on her labia minora, an injury which, in his opinion, would be “consistent with sexual abuse.” Defendant’s own admissions also corroborated the victim’s testimony that sexual penetration occurred in this case. Defendant stated that he, on numerous occasions, had been “feeling [the victim] up” and “rubfbing] her vagina.” From these admissions, it was logical for the jury to infer, and conclude, that some penetration, however slight, did in fact occur.

Accordingly, whether we rely solely on the victim’s testimony or the medical testimony that corroborates it, the evidence proves that sexual penetration did occur; thus, the conviction on the charges of aggravated criminal sexual assault and criminal sexual assault must be affirmed.

Next, defendant alternatively contends that we should grant a new trial based on the inaccuracy of the jury instructions. Defendant maintains that the definition and use of the term “sexual penetration” contained in the jury instructions were inappropriate. The instructions in issue, derived directly from the Code (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 12(f)), contained the following language:

“The term ‘sexual penetration’ means any intrusion, however slight, of any part of the body of one person into the sex organ or [sic] another person, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.”

Defendant argues that the instructions referring to the terms “cunnilingus, fellatio, or anal penetration” should be deemed error by this court because no evidence existed to prove such conduct. Instead, he asserts that the trial court erred in refusing the following instruction:

“The term ‘sexual penetration’ means any intrusion, however slight, of the finger of one person into the sex organ of another person. Evidence of emission or semen is not required to prove sexual penetration.”

It is established that the purpose of a jury instruction is to fully and fairly inform the jury of the applicable law without misleading or confusing them. (People v. Prather (1985), 138 Ill. App. 3d 32, 42, 485 N.E.2d 430, 437; People v. Dordies (1978), 60 Ill. App. 3d 621, 625, 377 N.E.2d 245, 249; People v. Gambony (1948), 402 Ill. 74, 81-82, 83 N.E.2d 321, 325.) Defendant agrees with the primary function of jury instructions, but urges this court to find that the instructions given here were not supported by the evidence and are therefore baseless. In support of his contention, defendant cites People v. Shackles (1977), 44 Ill. App. 3d 1024, 1026, 358 N.E.2d 1329, 1330, quoting People v. Banks (1962), 26 Ill. 2d 259, 262, 186 N.E.2d 338, 340, where courts expressed concern over the giving of an instruction not supported by the evidence because it may mislead the jury into believing that, in the opinion of the court, the evidence would support a finding that the facts exist upon which the proposition of law is based. (See also People v. Townsend (1985), 136 Ill. App. 3d 385, 483 N.E.2d 340; People v. Faysom (1985), 131 Ill. App. 3d 517, 475 N.E.2d 945; People v. Lewis (1979), 75 Ill. App. 3d 259, 393 N.E.2d 1098.) We deem these cases inapposite to the case at bar. Through the testimony of the victim and Dr. Blackwell, it was shown that sexual penetration did occur. Furthermore, the jury instructions were taken from the Illinois Pattern Instructions and fully and fairly instructed the jury on the applicable law. In People v. Haywood (1980), 82 Ill. 2d 540, 545, 413 N.E.2d 410, 413, the Illinois Supreme Court stated that Supreme Court Rule 451(a) (107 Ill. 2d R. 451(a)) requires that an Illinois Pattern Instruction be utilized when it accurately states the applicable law. In the case before us, defendant’s objection to the applicability of the instructions given to the jury is without merit because the instructions are not only applicable based upon the evidence in the case, but also identical to the statutory definition of “sexual penetration.” (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 12(f).) Therefore, the trial court did not err when it deemed the instructions applicable to the charged offenses.

In any event, any error in the instructions was harmless error and not a ground for reversal because the result would have been the same had defendant’s aforementioned proposed instruction been submitted to the jury. (See People v. Moore (1983), 95 Ill. 2d 404, 410-11, 447 N.E.2d 1327, 1330.) Defendant was not prejudiced by the instructions, as overwhelming evidence existed here to prove defendant guilty beyond a reasonable doubt of the charged crimes.

Defendant also asserts that he was denied a fair trial due to the prosecutor’s comments during closing arguments. Before we reach the merits of defendant’s arguments, it is necessary for this court to determine if a waiver of the prosecutor’s statements occurred.

In support of its waiver contention, the State cites People v. Lucas (1981), 88 Ill. 2d 245, 430 N.E.2d 1091, and People v. Thomas (1983), 116 Ill. App. 3d 216, 452 N.E.2d 77. Both cases stand for the proposition that Illinois law requires a defendant to object to any alleged error to properly preserve it for review. Lucas, 88 Ill. 2d at 250, 430 N.E.2d at 1093-94; Thomas, 116 Ill. App. 3d at 220, 452 N.E.2d at 80-81; see also People v. Enoch (1988), 122 Ill. 2d 176, 186-87, 522 N.E.2d 1124, 1130-31.

Defendant here failed to object to the alleged improper remarks at trial and in his post-trial motion. The post-trial motion stated that “[t]he assistant state’s attorney made prejudicial inflammatory and erroneous statements in closing argument designed to arouse the prejudices and passions of the jury, thereby prejudicing the defendant’s right to a fair trial.”

Thomas directly supports the State’s argument that defendant waived any error relating to the prosecutor’s remarks during closing arguments to the jury. In Thomas, the defendant failed to object to the prejudicial remarks during trial, and his post-trial motion simply stated that the prosecution’s closing argument contained “prejudicial, inflammatory, and erroneous statements designed to arouse the passions and prejudices of the jury,” without setting forth the specific remarks constituting error. (Thomas, 116 Ill. App. 3d at 219-20, 452 N.E.2d at 80.) The court held that such a post-trial motion does not preserve the issues for review because of the lack of specificity. (Thomas, 116 Ill. App. 3d at 220, 452 N.E.2d at 80, citing People v. Buford (1982), 110 Ill. App. 3d 46, 54-55, 441 N.E.2d 1235, 1242; see also Enoch, 122 Ill. 2d at 187, 522 N.E.2d at 1130; People v. Turk (1981), 101 Ill. App. 3d 522, 533, 428 N.E.2d 510, 516-17.) According to the holding in Thomas, we find that the prosecutorial misconduct during closing arguments has been waived for purposes of this appeal. Furthermore, we do not invoke the doctrine of plain error because the evidence was not closely balanced, nor was the error of such magnitude that the defendant was denied a fair trial. Lucas, 88 Ill. 2d at 251, 430 N.E.2d at 1093-94.

Even assuming arguendo that defendant did not waive any error pertaining to the prosecutor’s comments during closing arguments, defendant’s contention is without merit because the remarks were justified based upon the evidence. It is established that a prosecutor is given a great amount of latitude during closing argument regarding statements made, and the trial court’s determination of the propriety of closing argument will generally be followed absent a clear abuse of discretion. (People v. Smothers (1973), 55 Ill. 2d 172, 176, 302 N.E.2d 324, 326-27; People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 322, 379 N.E.2d 847, 852.) The prosecutor may comment on the evidence and all the legitimate inferences deducible from the evidence, even if unfavorable to the defendant. Weatherspoon, 63 Ill. App. 3d at 322, 379 N.E.2d at 853.

The first comment defendant urges as improper is the prosecutor’s description of defendant’s actions and how those actions constituted sexual penetration. The prosecutor stated the following:

“Penetration, now let’s deal once more with penetration. Penetration of any part of the body, that means it includes the finger into the sex organ of another person. In other words when that man placed his finger inside the vaginal area of little Vanessa, he committed penetration under the law.”

Defendant maintains that the State misstated the law when it discussed the term “penetration,” particularly the use of the terms “vaginal area” instead of “vagina.” We find that this did not create prejudicial ambiguity to defendant because the prosecutor’s use of the word “inside” prior to the words “vaginal area” is consistent with the definition of “sexual penetration.”

The second comment in issue is the prosecutor’s reference to the victim living a “nightmare” based on the events she has experienced. The prosecutor stated:

“I made a mistake in opening statement because I told you the nightmare ended June 28th. Well, the nightmare hasn’t ended for Vanessa Miela and I don’t know if it ever will.”

Defendant maintains that no evidence existed to support the prosecutor’s characterization that the victim lived a “nightmare.” The prosecutor’s remarks, however, were based on the victim’s and Dr. Blackwell’s testimony and were legitimate inferences deducible therefrom. (See People v. Wright (1974), 56 Ill. 2d 523, 532-33, 309 N.E.2d 537, 542; People v. Hairston (1970), 46 Ill. 2d 348, 375, 263 N.E.2d 840, 856; People v. Ostrand (1966), 35 Ill. 2d 520, 531-32, 221 N.E.2d 499, 506, rev’d on other grounds People v. Bracey (1972), 51 Ill. 2d 514, 283 N.E.2d 685.) Accordingly, we find that the prosecutor’s statements were proper.

Moreover, any error was harmless. (See People v. Rowe (1983), 115 Ill. App. 3d 322, 327, 450 N.E.2d 804, 809.) We believe the prosecutor’s comments did not represent a material factor in defendant’s conviction, result in substantial prejudice to him, or affect the verdict such that a different result would have been reached had the

comments not been made. People v. Holloway (1983), 119 Ill. App. 3d 1014, 1021, 457 N.E.2d 466, 472.

Additionally, defendant requests a new trial on the grounds that he was precluded from preparing an adequate defense due to the trial court’s refusal to require the State to furnish a bill of particulars containing exact dates of the charged crimes. It is within the sound discretion of the trial court whether to require a more specific bill of particulars, and only where there has been a clear abuse of discretion will the denial of a motion for a more specific bill of particulars be held error. (People v. Lego (1987), 116 Ill. 2d 323, 336-37, 507 N.E.2d 800, 804; People v. Curtis (1968), 41 Ill. 2d 147, 148, 242 N.E.2d 201, 202; People v. Tsukas (1950), 406 Ill. 613, 617, 94 N.E.2d 895, 897.) The purpose of a bill of particulars is to adequately inform the defendant of the nature of the accusations against him and to prepare a defense. Lego, 116 Ill. 2d at 336-37, 507 N.E.2d at 804; People v. Lanzotti (1978), 61 Ill. App. 3d 451, 454, 378 N.E.2d 369, 371; People v. Honn (1977), 47 Ill. App. 3d 378, 387, 362 N.E.2d 90, 97.

Defendant here was informed of the nature of the accusations against him, and he has not shown in what manner he was prejudiced or impeded in his preparation of an adequate defense. The State complied with statutory provisions applicable to the commencement of a felony prosecution by information (Ill. Rev. Stat. 1985, ch. 38, pars. 111 — 3(a)(1) through (a)(5)). Particularly, the requirement that the State provide the date and count of the offense “as definitely as can be done” (Ill. Rev. Stat. 1985, ch. 38, par. 111 — 3(a)(4)) was met. Given the facts of this case, the dates provided to the defendant, although spanning some six months, were as specific as possible. Because of the young age of the victim and the fact that the acts occurred over a period of six months, the dates preferred by the State were acceptable.

Moreover, in cases involving sexual abuse of a child, flexibility exists regarding the date requirement (Ill. Rev. Stat. 1985, ch. 38, par. 111 — 3(a)(4)) necessary under the Code. (People v. Long (1977), 55 Ill. App. 3d 764, 772, 370 N.E.2d 1315, 1321-22.) Consequently, we find that the trial court did not abuse its discretion in refusing to require the State to provide a more specific bill of particulars and affirm defendant’s convictions.

Finally, defendant contends that the sentence of 25 years in prison and three years of mandatory supervised release is excessive. It is not the function of a reviewing court to serve as a sentencing court, and absent a clear abuse of discretion by the trial court, a sentence will not be disturbed upon review. (People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541, 547; People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 884.) Here we cautiously find that the trial court abused its discretion.

In determining a sentence, the trial court is authorized to consider the seriousness and circumstances of the offense, in addition to the defendant’s mentality, age, credibility, and demeanor. (Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884; People v. Morgan (1974), 59 Ill. 2d 276, 282, 319 N.E.2d 764, 768; People v. Requena (1982), 105 Ill. App. 3d 831, 838, 435 N.E.2d 125, 130; People v. Rosa (1982), 111 Ill. App. 3d 384, 395, 444 N.E.2d 233, 239-40.) Moreover, the trial court must strike a proper balance between the protection of society and the rehabilitation of defendant. (Cox, 82 Ill. 2d at 280, 412 N.E.2d at 547; People v. Treadway (1985), 138 Ill. App. 3d 899, 905, 486 N.E.2d 929, 933.) Pursuant to the Illinois Constitution, rehabilitation must not only be considered as a factor in determining a proper sentence, but it must actually be one objective of a sentence. (People v. Gibbs (1977), 49 Ill. App. 3d 644, 648, 364 N.E.2d 491, 494.) After recognizing all of the foregoing principles governing sentencing, we apply them to the case at bar.

Aggravated criminal sexual assault is a Class X felony (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(c)), with a statutory prison term of not less than six years and not more than 30 years as mandated by the Unified Code of Corrections (the Corrections Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(3)). Thus, the trial court’s sentence of 25 years was within the statutory limits prescribed by the legislature.

A review of the record in the case at bar also reveals that the trial court considered all of the factors presented in aggravation and mitigation of the offense, as mandated by the Corrections Code (Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 5—3.1, 1005 — 5—3.2), before sentencing defendant. For purposes of this appeal, it is important to note the mitigating factors. Among these factors was the background of the defendant. Defendant, who is 39 years old, is an alcoholic, has no prior felony convictions, and has served no time in prison. Additionally, defendant only possesses a fourth-grade education due to him being employed at an early age to support his family. Defendant’s employment record indicates that he is a dependable individual and a consistent employee. He was employed at the University of Chicago as a maintenance worker from 1975 through his date of imprisonment. Finally, defendant appears to be a responsible person evidenced by him providing financial support for his three children, two of whom live out of State with their mother, and the other, who resides in Chicago.

Despite these mitigating factors defendant was still sentenced to 25 years in prison with three years of mandatory supervised release. Although defendant’s acts are heinous, which we in no way condone, we find that the sentence imposed is excessive.

In aggravated sexual assault cases involving similar facts to the case at bar where a child was involved and sexual penetration was committed by the insertion of a finger, the sentences have not even closely paralleled the sentence imposed here. For example, in People v. Hutson (1987), 153 Ill. App. 3d 1073, 506 N.E.2d 779, defendant was convicted of aggravated criminal sexual assault and aggravated criminal sexual abuse. The trial court sentenced defendant to six-year concurrent prison terms for each offense. Of particular importance is the fact that the element of “sexual penetration” was committed by defendant inserting his finger into the child’s vagina.

The case at bar contains the same facts as Hutson, the inserting of a finger in the child’s vagina. Despite the fact that the cases are almost identical, the sentences imposed in each are in gross disparity.

Also parallel to the facts of the case here is People v. McCoy (1987), 156 Ill. App. 3d 194, 509 N.E.2d 567, in which defendant was convicted of aggravated criminal sexual assault and sentenced to six years’ imprisonment for inserting his finger into a child’s anus. Additionally, defendant had a prior forgery conviction, which was presumably considered as an aggravating factor in determining his sentence. Again, this case is analogous to the instant case. Both cases involve the insertion of a finger, thereby constituting sexual penetration, and in each case a prior conviction was presumably considered as an aggravating factor in determining an appropriate sentence. Yet, the sentences imposed in each case bear no correlation to each other.

Finally, we note the case of People v. Ortiz (1987), 155 Ill. App. 3d 786, 508 N.E.2d 490, where defendant was convicted of aggravated criminal sexual assault and sentenced to a 25-year prison term for inserting his finger into a child’s vagina and anus. At first glance, Ortiz appears to be indicative on the sentencing issue here, but crucial differences exist between the cases. First, the defendant in Ortiz sexually penetrated the victim by inserting his finger in both her vagina and anus. The defendant in the instant case penetrated the victim by inserting his finger in her vagina. Second, the defendant in Ortiz had a prior conviction for the offense of indecent liberties with a child, which was clearly considered as an aggravating factor in sentencing defendant. Defendant here has never been convicted of any prior criminal sexual acts. Based on Ortiz, an imposition of a 25-year sentence in the instant case is not justified.

Moreover, even in cases involving more serious criminal sexual acts with children, the sentences imposed have not been as severe as in the instant case. In People v. Watson (1989), 178 Ill. App. 3d 796, 533 N.E.2d 1011, defendant was sentenced to an eight-year prison term after a jury found him guilty of aggravated criminal sexual assault and criminal sexual assault. The specific acts that defendant committed were the following: the inserting of his penis and finger into his seven-year-old stepdaughter’s vagina.

In People v. Daniels (1987), 164 Ill. App. 3d 1055, 518 N.E.2d 669, defendant was convicted of aggravated criminal sexual assault and sentenced to a six-year prison term. The specific acts that defendant committed were the following: directing her son to put his penis in her vagina during a pornographic home video.

In People v. Fisher (1988), 169 Ill. App. 3d 785, 523 N.E.2d 368, defendant was convicted of aggravated criminal sexual assault and sentenced to a 10-year prison term. The specific acts that the defendant committed were the following: licking, smelling, and inserting a knife into the vagina of his 35-month-old niece.

Finally, in People v. Bayer (1987), 160 Ill. App. 3d 218, 513 N.E.2d 457, defendant was convicted of aggravated criminal sexual assault and sentenced to a 14-year prison term. The specific acts that the defendant committed were the following: on numerous occasions, placing his penis into the mouth of his nine-year-old stepdaughter until ejaculation and sexually penetrating her vagina with his finger.

In light of the above cases, which are factually similar and in some instances more severe than the case at bar, we find that the sentence here is excessive. Our research does not disclose any case similar to the facts at bar where a 25-year sentence was imposed. While we give great deference to the trial court in its sentencing function, we cannot affirm the sentence imposed against defendant.

Further support that the trial court abused its discretion in sentencing defendant to a 25-year prison term is extracted from the record. During sentencing the trial court stated that “little or no treatment is available — at least that medical or other sciences have available to use” for defendant. The record does not contain any evidence that would support such a determination by the trial court. Moreover, commentators and clinical studies have indicated that treatment for paraphilia is available and successful. See Bradford, Organic Treat ments for the Male Sexual Offender, 3 Behavioral Sciences & the Law 355 (1985) (analyzes three significant organic treatments for the sexual offender: antiandrogen or other hormonal agents; surgical castration; and stereotaxic neurosurgery); Grossman, Research Directions in the Evaluation & Treatment of Sex Offenders: An Analysis, 3 Behavioral Sciences & the Law 421 (1985) (review of early and current techniques for evaluating and treating male sex offenders, with emphasis on biological and behavioral therapies).

After careful consideration, we find that the 25-year sentence is excessive, that a proper balance between society and rehabilitation will only be maintained if the term is reduced, and that defendant has rehabilitative potential that would be poorly served by such an excessive sentence. A reduced sentence will allow defendant at least the possibility of being restored to a meaningful, productive life, and at the same time will be adequate retribution for his offenses, provide protection for society, and serve as a deterrent. We therefore vacate defendant’s sentence and remand the cause for resentencing consistent with our finding. We stress that any reduction in defendant’s sentence does not in any way diminish the seriousness of the crime and its abhorrence to society.

Affirmed in part; vacated in part and remanded.

MANNING, P.J., and CAMPBELL, J., concur.

      Specifically, the tear or laceration was on the victim’s labia minora, the small fold of tissue at the entrance of the vagina. The labia minora is inside the labia majora, which is outside the vaginal area.

      The presentence investigation evidences the fact that defendant is an alcoholic and has been treated for this illness. Furthermore, during the criminal sexual acts with the victim, defendant admitted that he was usually intoxicated.

      Defendant’s criminal record contained only minor convictions of drinking on a public way and unlawful use of a weapon.


author: PRESIDING JUSTICE MANNING

text:
    CLARK SMITH, Plaintiff-Appellant, v. SOUTH SHORE HOSPITAL et al., Defendants-Appellees.
    First District (1st Division)
    Nos. 1—86—2387, 1—87—0477 cons.
    Opinion filed August 21, 1989.

      Sheldon Hodes and Leonard D. Litwin, both of Chicago, for appellant.
    Wildman, Harrold, Allen & Dixon and Hinshaw, Culbertson, Moelmann, Hoban & Fuller, both of Chicago (Mark C. Fedota, Ruth E. Van Demark, Davi L. Hirsch, Stephen R. Swofford, Susan A. Wagener, and Kathryn A. Spalding, of counsel), for appellees.
   PRESIDING JUSTICE MANNING

delivered the opinion of the

court:

Plaintiff, Clark Smith, appeals from a July 24, 1986, order, granting summary judgment to Dr. Teresito Arcillas and South Shore Hospital, defendants in a medical malpractice action. The record discloses that on March 6, 1979, Dr. Arcillas examined the plaintiff, who was experiencing difficulty urinating. Plaintiffs condition was diagnosed as a benign enlargement of the prostate gland or “benign prostatic hypertrophy.” As a result of this diagnosis, Dr. Arcillas ordered tests to be performed on an outpatient basis, and subsequently, on March 20, 1979, arranged to have plaintiff admitted to South Shore Hospital for surgery to correct this condition.

Upon admission, Dr. Arcillas took an admissions history of the plaintiff which is used to determine what kind of anesthesia to administer to the patient. Dr. Velas Khanterperker, a urologist, was consulted on March 21, 1979, regarding the plaintiff’s condition. After examining the plaintiff, he confirmed Dr. Arcillas’ diagnosis of enlargement of the prostate gland and performed a cystoscopy to determine whether there was any bleeding, a tumor or any change in the lining of the urinary bladder which would indicate a chronic obstruction. On March 22, 1979, the day before the surgery, the notes of the nurse and the house physician revealed that the plaintiff was experiencing weakness and could not get back into bed without assistance. However, the admissions history taken by Dr. Arcillas did not indicate that upon admission to the hospital plaintiff was experiencing weakness in his legs. Instead, plaintiff informed Dr. Arcillas that he had not been previously sick or hospitalized.

After reviewing plaintiff’s hospital records, the anesthesiologist, who was employed by South Shore Hospital, approved plaintiff for spinal anesthesia and administered the spinal anesthetic pontocaine. On March 23, 1979, Dr. Khanterperker performed transurethral resection of the prostate gland surgery. Dr. Arcillas did not participate in the surgery or the administering of the anesthesia. Three , days after surgery was performed, plaintiff attempted to walk and experienced weakness in his legs. As a result of the continued weakness, plaintiff was examined by two other neurosurgeons who diagnosed his condition as “flaccid paraplegia,” which is an absence of the “abdominal and cremasteric reflexes.”

On April 6, 1979, an addendum to plaintiff’s history was made by Dr. Arcillas in which he noted that plaintiff’s wife had informed him that plaintiff had suffered weakness in his legs for six months prior to the surgery, and he was a heavy drinker. On April 25, 1979, plaintiff was transferred to the Veteran's Administration Hospital for further consultation, and it was discovered that he had general damage to his nervous system.

Plaintiff filed a two-count complaint on November 30, 1979, against Dr. Arcillas and South Shore Hospital, alleging that: Dr. Arcillas failed to take a proper medical history; the hospital negligently failed to require the proper taking of a medical history by Dr. Arcillas; the spinal anesthetic was negligently administered by Dr. Tomas Munoz, the hospital anesthesiologist; and raising a negligence theory based on res ipsa loquitor.

On January 31, 1985, Dr. Arcillas moved for summary judgment, attaching the affidavit of Dr. Maynard Cohen, a board-certified neurologist, who found that Dr. Arcillas met the acceptable standard of care in treating the plaintiff. On September 18, 1985, the hospital moved for summary judgment asserting that the plaintiff had provided no competent evidence to support his allegations and that he had not named an expert. Dr. Edward Brunner, a board-certified anesthesiologist, also testified that in his opinion South Shore Hospital met the appropriate standard of care in treating plaintiff. Moreover, the anesthesiologist met the standard of practice for anesthesia.

The trial court granted summary judgment for Dr. Arcillas on July 24, 1986, and partial summary judgment to the hospital. On January 22, 1987, summary judgment was entered for the hospital by the trial court on the remaining issues. Plaintiff appeals from the July 24, 1986, order. On appeal plaintiff contends that the trial court erred in granting summary judgment since genuine issues of material facts remain regarding whether Dr. Arcillas met the standard of care for taking a hospital admission history and whether the hospital anesthesiologist negligently administered the spinal anesthesia.

The purpose of summary judgment is to determine whether there exist any genuine issues of material fact (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294, 529 N.E.2d 552; Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112, 514 N.E.2d 188; Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867); and a motion for summary judgment should be granted when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(c)). Summary judgment is a drastic measure for disposing of litigation and should only be used when the right of the moving party is clear and free from doubt. Purtill, 111 Ill. 2d at 240; Beverly Bank v. Alsip Bank (1982), 106 Ill. App. 3d 1012, 1016, 436 N.E.2d 598.

In determining whether a genuine issue of material fact exits, courts must construe the pleadings, depositions, admissions, exhibits and affidavits on file strictly against the movant and liberally in favor of the opponent. (Addison, 124 Ill. 2d at 294; In re Estate of Whittington (1985), 107 Ill. 2d 169, 177, 483 N.E.2d 210, cert. denied (1986), 475 U.S. 1016, 89 L. Ed. 2d 313, 106 S. Ct. 1199; Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 594, 491 N.E.2d 803.) Where a party moving for summary judgment provides facts which, if not contradicted, would entitle that party to judgment as a matter of law, the opponent of the motion cannot rely solely on his pleadings to raise issues of material fact. (Addison, 124 Ill. 2d at 294; Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 380, 313 N.E.2d 457.) Therefore, facts contained in an affidavit in support of a motion for summary judgment are admitted and must be taken as true for purposes of the motion where the opponent has failed to contradict the facts by counter affidavit. Purtill, 111 Ill. 2d at 241; Heidelberger v. Jewel Cos. (1974), 57 Ill. 2d 87, 92-93, 312 N.E.2d 601.

It is well established that summary judgment will be affirmed on review where a party in opposition to the motion had ample opportunity to obtain counteraffidavits but failed to do so. (See Johnson v. Matviuw (1988), 176 Ill. App. 3d 907, 913, 531 N.E.2d 970; James v. Yasunaga (1987), 157 Ill. App. 3d 450, 460, 510 N.E.2d 531; Goldstein v. Kantor (1981), 101 Ill. App. 3d 264, 267, 427 N.E.2d 1322.) Moreover, summary judgment in favor of the defendants is proper where the plaintiff has failed to reveal an expert opinion to sustain the allegations or indicate that such an opinion would be forthcoming in the future. (Stevenson v. Nauton (1979), 71 Ill. App. 3d 831, 835-36, 390 N.E.2d 53; Sanders v. Frost (1969), 112 Ill. App. 2d 234, 241, 251 N.E.2d 105.) In the present case, plaintiff’s complaint was filed for five years prior to Dr. Arcillas’ motion for summary judgment and 5 years, 10 months prior to South Shore Hospital’s motion for summary judgment. Summary judgment was not granted for Dr. Arcillas or South Shore Hospital until July 24, 1986. During this period, plaintiff had a sufficient opportunity to obtain a counteraffidavit from an expert witness, stating that Dr. Archillas and/or the South Shore Hospital negligently performed their duties. However, plaintiff failed to provide the trial court with any counteraffidavits.

Plaintiff argues that the trial court erred in granting summary judgment since there remains a genuine issue of material fact as to whether Dr. Arcillas and the hospital met the standard of care in taking the hospital admissions history of the plaintiff, which should have revealed the weakness in plaintiff’s legs. Plaintiff further argues that an issue of fact further remains regarding whether the use of pontocaine anesthesia in a patient experiencing weakness in his lower legs constitutes negligence.

It is well established that in a medical malpractice action the plaintiff must generally present expert testimony to establish: (1) the proper standard of care against which the defendants’ conduct is measured; (2) a deviation from the applicable standard of care; and (3) an injury that was proximately caused by this breach of the applicable standard of care. (Addison, 124 Ill. 2d at 297; Purtill, 111 Ill. 2d at 242; Beaman v. Swedish American Hospital Association (1989), 179 Ill. App. 3d 532, 536, 534 N.E.2d 522; Stevens v. Sadiq (1988), 176 Ill. App. 3d 333, 336, 530 N.E.2d 1159.) Exceptions to the general rule requiring expert testimony have been recognized by our courts in cases where the physician’s negligent treatment is so grossly apparent or where the treatment is so common that it is within the everyday knowledge of a layperson. (Addison, 124 Ill. 2d at 297; Purtill, 111 Ill. 2d at 242; Walski v. Tiesenga (1978), 72 Ill. 2d 249, 256, 381 N.E.2d 279.) In the instant case, plaintiff has alleged negligence against Dr. Arcillas and the hospital. However, plaintiff has failed to introduce any acceptable evidence to establish an applicable standard of care, the defendants’ deviation from that standard of care and any injury the plaintiff has suffered as a result of that deviation. Moreover, neither of the exceptions to the general rule requiring expert testimony is applicable. The negligence alleged to have been committed by the defendants is not so grossly apparent, nor is the treatment so common that it is within the everyday knowledge of a layperson.

Plaintiff argues that the evidence provided by the deposition testimony of the defendants’ experts, Dr. Maynard Cohen, Dr. Edward Brunner, and the standards of the Joint Commission on Accreditation of Hospitals established the standard of care regarding the taking of a proper medical history. Plaintiff did offer excerpts from the deposition testimony of the defendants’ expert witnesses Dr. Brunner and Dr. Cohen based on hypothetical questions. However, even if the expert witnesses would have provided treatment different from the treatment received by plaintiff, medicine is an inexact science, and the testimony of another physician that his actions would have been different from the defendants is insufficient to establish a prima facie case. (Walski, 72 Ill. 2d at 261; Stevens, 176 Ill. App. 3d at 338-39.) Moreover, Dr. Cohen’s deposition testimony and his affidavit did not support plaintiff’s allegation that an improper medical history was taken since he specifically stated that Dr. Arcillas did not deviate from the standard of care in performing his duties.

Plaintiff further argues that Dr. Arcillas breached his duty to take a proper medical history as evident by the addendum to plaintiff’s medical history taken after the surgery which revealed that plaintiff’s wife had informed Dr. Arcillas that the plaintiff had experienced weakness in his legs for six months prior to surgery. However, plaintiff’s wife submitted an affidavit which denied ever making such a statement to Dr. Arcillas. On the contrary, the affidavit stated that plaintiff did not have weakness in his legs until after he received the spinal anesthesia at the hospital. As previously noted, facts contained in an affidavit in support of a motion for summary judgment are admitted and must be taken as true for purposes of the motion where the opponent has failed to contradict the facts by counteraffidavit. (Purtill, 111 Ill. 2d at 241; Heidelberger v. Jewel Cos. (1974), 57 Ill. 2d 87, 92-93, 312 N.E.2d 601.) In the instant case plaintiff has failed to provide any counteraffidavits. Moreover, we agree with the reasoning of the trial court that if plaintiff did not experience any weakness in his legs prior to surgery, then Dr. Arcillas could not have been negligent in not noting the weakness in the medical history.

Plaintiff further argues that the testimony of Dr. Brunner, Dr. Cohen, the standards of the Joint Commission on Accreditation of Hospitals and the Physicians Desk Reference for pontocaine established the standard of care upon which the hospital would be measured and a breach of that standard. As previously noted, Dr. Cohen specifically stated that Dr. Arcillas did not deviate from the standard of care in performing his duties. Moreover, Dr. Brunner’s deposition testimony and affidavit specifically stated that the anesthesiologist met the standard of care in the medical community in administering the spinal anesthetic to the plaintiff.

Regarding plaintiff’s assertion that the standards of the Joint Commission on Accreditation of Hospitals and the Physicians Desk Reference established a standard of care, our courts have held that certain professional guides, such as hospital licensing regulations, accreditation standards, bylaws and instructions for the use of drugs, may serve as a substitute for expert testimony. (See, e.g., Ohligschlager v. Proctor Community Hospital (1973), 55 Ill. 2d 411, 417-18, 303 N.E.2d 392; Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 330-32, 211 N.E.2d 253, cert. denied (1966), 383 U.S. 946, 16 L. Ed. 2d 209, 86 S. Ct. 1204.) Plaintiff has submitted into evidence the 1983 standards of the Joint Commission on Accreditation of Hospitals. However, this cause of action arose in 1979; therefore, the 1983 standards of the Joint Commission on Accreditation of Hospitals were not in effect on the date of the surgery, and consequently, are inapplicable to establish a standard of care for a 1979 occurrence. Plaintiff introduced the 1979 standards of the Joint Commission on Accreditation of Hospitals for the first time as an attachment to his reply brief. However, attachments to briefs that are not a part of the record cannot be used to supplement the record and are not properly before a court of review. (Etten v. Lane (1985), 138 Ill. App. 3d 439, 442, 485 N.E.2d 1177; Mahrenholz v. County Board of School Trustees (1984), 125 Ill. App. 3d 619, 649, 466 N.E.2d 322.) Only documents that were actually before the trial court may be considered on appeal. Johnson v. Matviuw (1988), 176 Ill. App. 3d 907, 912, 531 N.E.2d 970; State Farm Mutual Automobile Insurance Co. v. Stuckey (1983), 112 Ill. App. 3d 647, 445 N.E.2d 791.

Plaintiff has also relied on the 1979 Physician’s Desk Reference (PDR) for pontocaine as evidence establishing the standard of care. The PDR clearly stated that it is the physician’s decision as to whether a spinal anesthesia will be used based on the physician’s appraisal of the advantages of such use and the ability to cope with complications that may arise. In the present case, plaintiff’s condition of damage to his central nervous system was not diagnosed until several years after the surgery was performed. At the time of surgery the anesthesiologist determined that the plaintiff was “in satisfactory condition for spinal anesthesia.” Plaintiff has failed to introduce any evidence to establish negligence in the administration of the anesthesia, and a bad result does not in all cases necessarily mean that someone was negligent. Taylor, 142 Ill. App. 3d at 595; Stringer v. Zacheis (1982), 105 Ill. App. 3d 521, 527, 434 N.E.2d 50.

A review of the record has revealed that although plaintiff has alleged negligence against the defendants, plaintiff has failed to offer any acceptable evidence to establish a standard of care or any evidence to support a breach of that standard by Dr. Arcillas or the hospital.

Plaintiff next contends that the trial court erred in requiring him to provide expert testimony when count II of his complaint is based on a theory of res ipsa loquitur. The doctrine of res ipsa loquitur does apply to medical malpractice actions. (Taylor, 142 Ill. App. 3d at 593; Walker v. Rumer (1978), 72 Ill. 2d 495, 500, 381 N.E.2d 689.) The purpose of the doctrine is to allow the plaintiff to prove the cause of injury by circumstantial evidence when the direct evidence is primarily within the knowledge and control of the defendant. (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 394, 415 N.E.2d 397; Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 449, 207 N.E.2d 305.) Specifically, the doctrine of res ipsa loquitur is a species of circumstantial evidence which permits the trier of fact to draw an inference of negligence if the plaintiff can show that he or she was injured: (1) in an occurrence that ordinarily does not occur in the absence of negligence; (2) by an instrumentality or agency within the exclusive control of the defendant; and (3) under circumstances that indicate the injury was not due to any neglect or voluntary act on plaintiff’s part. Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 272, 443 N.E.2d 569; Spidle v. Steward (1980), 79 Ill. 2d 1, 5, 402 N.E.2d 216.

It is the plaintiff’s responsibility to establish the elements of res ipsa loquitur in order to reap the benefits of this doctrine. However, the trial court must decide, in the first instance, as a matter of law whether the doctrine should be applied. (Spidle, 79 Ill. 2d at 7; Drewick v. Interstate Terminals, Inc. (1969), 42 Ill. 2d 345, 349, 247 N.E.2d 877.) The doctrine will only apply if the defendant owes a duty of care to the plaintiff and there has been a breach of that duty. (Taylor, 142 Ill. App. 3d at 593.) Under the doctrine, the trier of fact may not draw an inference of negligence based solely on the happening of a rare and unusual result. (Taylor, 142 Ill. App. 3d at 592; Guebard v. Jabaay (1983), 117 Ill. App. 3d 1, 13, 452 N.E.2d 751.) Evidence must be introduced to establish the rare and unusual event, and it must be coupled with proof of a negligent act. Spidle, 79 Ill. 2d at 10; Taylor, 142 Ill. App. 3d at 592; Cassady v. Hendrickson (1985), 138 Ill. App. 3d 925, 937, 486 N.E.2d 1329.

In the case at bar, plaintiff has failed to demonstrate the first element under res ipsa loquitur, which is the injury would not have occurred in the absence of negligence. This element can be established by presenting expert testimony to support the allegation, or by demonstrating that the defendants’ conduct was so grossly remiss that it falls within the common knowledge of laymen. Taylor, 142 Ill. App. 3d at 593; Chiero v. Chicago Osteopathic Hospital (1979), 74 Ill. App. 3d 166, 175; Walker, 72 Ill. 2d at 500.

Plaintiff has not offered any acceptable evidence to establish an applicable standard of care, nor has he offered any evidence from which an inference of negligence may be drawn. Specifically, plaintiff did not provide any expert testimony upon which an inference of negligence could be drawn. Furthermore, a determination as to whether the damage to the plaintiff’s nervous system was caused by the use of the spinal anesthetic pontocaine is not the type of injury that can reasonably be inferred as to fall within the common knowledge of laymen. Moreover, the deposition testimony of Dr. Brunner revealed that the plaintiff’s paralysis after surgery could have resulted from some other undisclosed cause. The showing of a bad result does not itself mean that someone was negligent (Taylor, 142 Ill. App. 3d at 595; Stringer, 105 Ill. App. 3d at 527), and a bad result standing alone will not support a res ipsa loquitur cause of action. (Chiero, 74 Ill. App. 3d at 175.) We, therefore, conclude that plaintiff has failed to establish the elements to invoke the doctrine of res ipsa loquitur-, and under these circumstances, summary judgment was proper.

Plaintiff finally argues that his motion to strike paragraphs 3 and 9 of Dr. Cohen’s supplemental affidavit should have been granted pursuant to Supreme Court Rule 191(a) (107 Ill. 2d R. 191(a)) since the affidavit failed to state facts, was conclusory and contradicted Dr. Cohen’s deposition testimony. The sufficiency of an affidavit offered to support a summary judgment motion is governed by Supreme Court Rule 191, which requires that affidavits offered in support of and in opposition to a motion for summary judgment must be based on the personal knowledge of the affiant and must set forth particular evidentiary facts upon which the affiant could competently testify. (107 Ill. 2d R. 191(a); Johnson v. Matviuw (1988), 176 Ill. App. 3d 907, 913, 531 N.E.2d 970; Purtill, 111 Ill. 2d at 241.) This rule is satisfied if “ ‘it appears from the whole of the documents that the affiant would be competent to testify if called upon.’ ” Purtill, 111 Ill. 2d at 241, quoting Nardi, Pain & Podolsky, Inc. v. Vignola Furniture Co. (1967), 80 Ill. App. 2d 220, 227, 224 N.E.2d 649.

•22 In the instant case, the trial court properly denied plaintiff’s motion to strike paragraphs 3 and 9 of Dr. Cohen’s supplemental affidavit. Plaintiff questioned Dr. Cohen about these paragraphs during the taking of his deposition. Moreover, it is unquestioned that Dr. Cohen was indeed competent to testify as to the matters included in his affidavit, and the record discloses that he did proceed to testify through deposition testimony. When Dr. Cohen’s affidavit is reviewed in conjunction with his deposition, which provided more detailed evidentiary facts regarding the standard of care, and taken as a whole, plaintiff’s negligence allegations were refuted as a matter of law, absent the submission of counteraffidavits by the plaintiff. Johnson v. Matviuw (1988), 176 Ill. App. 3d 907, 913, 531 N.E.2d 970; Heidelberger, 57 Ill. 2d at 92-93.

Since there are no genuine issues of material fact, Dr. Arcillas and the hospital are entitled to summary judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(c).) Therefore, we conclude that the trial court’s entry of summary judgment for the defendants was not an abuse of discretion. Accordingly, we affirm the entry of summary judgment for the defendants.

Judgment affirmed.

CAMPBELL and BUCKLEY, JJ., concur.