author: PRESIDING JUSTICE McMORROW JUSTICE JOHNSON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES HOUSE, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—2296
    Opinion filed May 3, 1990.

      JOHNSON, J., dissenting.
    Fritzshall & Gleason, of Chicago (Steven N. Fritzshall, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Joseph G. Howard, and Brian T. Sexton, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Following a jury trial, defendant James House was convicted of reckless homicide (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3(a)) and sentenced to three years’ imprisonment. On appeal, defendant argues that: (1) the State’s evidence was insufficient to prove him guilty beyond a reasonable doubt; (2) the trial court committed reversible error when it excluded defendant’s proffered evidence regarding his reputation for truth and veracity, and his reputation for lack of recklessness; (3) the jury instructions given by the trial court were reversible error; (4) the trial court’s remarks during the course of the trial created a prejudicial atmosphere that deprived defendant of a fair trial; and (5) the sentence imposed by the trial court was excessive. We affirm.

Defendant was convicted for driving a vehicle on a public street in the City of Chicago in such a reckless manner that he struck and killed Tina Abdullah (Abdullah) on December 10, 1985. Evidence presented at trial established that on the date of the incident, defendant was driving his automobile northwest on South Chicago Avenue. He stopped at a red light, at the well-lit intersection of 79th Street, Stony Island Avenue, and South Chicago Avenue, in the lane of traffic designated for left-hand turns only. It was approximately 6:30 p.m., the weather was foggy and rainy, and the area was congested with pedestrian and vehicular traffic. As the light at the intersection turned green, defendant did not make a left-hand turn, but proceeded directly into the intersection and cut in front of the vehicle which had been stopped to his right at the intersection. This vehicle was being driven by Gilberto Alvarez (Alvarez), who testified at trial that defendant drove at an excessive rate of speed into the intersection and cut in front of Alvarez’ car in order to drive in Alvarez’ lane of traffic. Alvarez testified that as defendant cut in front of him, Alvarez saw “a body in the air.” Alvarez followed defendant’s car as defendant sped down South Chicago Avenue, obtained the vehicle’s license plate number, and then returned to the scene, where he gave the license plate number to Chicago police officers.

Defendant testified at trial that he did not recall being in the left-hand turn lane at the intersection shortly before the incident. He testified that he drove at a normal rate of speed directly across the intersection in his own lane of traffic and that, as he reached the end of the intersection, he “heard a loud.thump” but saw nothing. Defendant stated that he believed that someone had thrown something at his car, since the immediate area was a gang hangout. Defendant continued to his intended destination and was arrested when he returned home approximately five hours later. According to defendant, it was at this time that defendant learned he had hit a pedestrian, Abdullah, who had been standing near the corner.

The medical examiner testified at trial that Abdullah died of multiple injuries by vehicular homicide. An evidence technician who examined defendant’s vehicle testified that there was damage to the fender, bumper, and windshield on the driver’s side of the car. Hair samples were removed from the fractured windshield. It was established at trial that the hair could have come from the victim and that glass in the victim’s clothing matched the glass from the windshield of defendant’s vehicle.

Based upon this evidence, defendant was convicted of reckless homicide and sentenced to three years’ imprisonment. He now appeals.

Defendant argues first that the evidence presented at trial was insufficient to prove him guilty beyond a reasonable doubt of reckless homicide. We disagree. “A person commits reckless homicide if he kills a person while driving a motor vehicle and the acts which caused death are such as are likely to cause death or great bodily harm to some individual and are performed recklessly.” (People v. Bonzi (1978), 65 Ill. App. 3d 927, 931, 382 N.E.2d 1300.) “A person is reckless *** when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow *** and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 6.) Recklessness is inferred from all the facts and surrounding circumstances provided by the record. (People v. Dunnegan (1987), 151 Ill. App. 3d 973, 982, 503 N.E.2d 823.) In reviewing the jury’s verdict, the evidence of record must be considered in the light most favorable to the State. People v. Pintos (1989), 133 Ill. 2d 286.

Upon a proper review of the evidence and its reasonable inferences in a light most favorable to the State, we find the evidence sufficient to prove defendant guilty beyond a reasonable doubt of reckless homicide. The record shows that defendant stopped at a red light in a left-hand turn lane of a well-lit, busy intersection congested with cars and pedestrians at approximately 6:30 p.m. under wet and foggy conditions. As the light turned green, defendant accelerated his car to an excessive rate of speed, attempted to change lanes rather than make a left-hand turn, and ran into the victim with such force and violence that her head fractured his windshield and left fragments of hair and skin. Defendant, allegedly thinking that “something” had hit his car, sped off. Courts of review faced with similar facts have not hesitated to affirm a conviction of reckless homicide on the ground that such circumstances were sufficient to prove the defendant guilty beyond a reasonable doubt. (See, e.g., People v. Griffith (1978), 56 Ill. App. 3d 747, 372 N.E.2d 404.) We find nothing distinguishable in the instant cause to reach a conclusion contrary to this precedent.

Defendant also contends that he should receive a new trial because the trial court erroneously prevented him from introducing reputation or character testimony to be given by his parish priest and employer. Defendant advances two grounds for the admissibility of reputation testimony on his behalf. First, defendant contends that his credibility, and therefore his reputation for truth and veracity, was put in issue by the State because the State presented evidence inconsistent with defendant’s trial testimony and argued that the State’s evidence should be believed by the jury. However, the record shows that the State never directly attacked the veracity of the testimony given by defendant at trial. The circumstance that defendant’s testimony introduced in his own behalf, regarding the events which were the basis for his being charged with reckless homicide, differed from the testimony presented by the State’s witnesses did not, in and of itself, justify reception into evidence of testimony regarding defendant’s reputation for truth and veracity. (People v. Griffith (1978), 56 Ill. App. 3d 747, 756, 372 N.E.2d 404.) In addition, Illinois law is well established that defendant’s reputation for truth and veracity has no bearing on any character trait involved in the offense of reckless homicide. (Griffith, 56 Ill. App. 3d at 756; see also People v. Doll (1984), 126 Ill. App. 3d 495, 501-02, 467 N.E.2d 335.) As a result, the trial court did not abuse its discretion when it excluded testimony offered by defendant regarding his good reputation for truth and veracity.

Defendant also maintains that his reputation for not acting in a reckless manner was an essential element of his defense to the charge of reckless homicide. However, the record shows defendant has waived the argument that the trial court abused its discretion in refusing to allow testimony regarding defendant’s reputation for lack of recklessness. The trial transcript shows that, during the State’s presentation of its case in chief, defendant initially informed the court that he wished to present reputation testimony regarding (1) his lack of recklessness and (2) his truth and veracity. The court responded that this evidence was inadmissible, because defendant’s reputation for truth and veracity was not an issue in the charges for which he was being tried. The court also informed defendant that it would modify this ruling if defendant could present case law to support his position.

Thereafter, when defendant renewed his claim that he should be permitted to present reputation testimony, defendant argued only that he wished to present testimony regarding his reputation for truth and veracity. The court again stated its view that such evidence was inadmissible because defendant’s reputation for truth and veracity was not an issue in the State’s charges against him. Defense counsel then suggested that defendant’s credibility would be placed in issue, because defendant intended to testify in his own behalf to circumstances and events surrounding the accident that were materially different than those recited by the State’s eyewitness. The court found this an insufficient basis to permit reputation testimony on defendant’s behalf regarding his truth and veracity.

The defendant’s attorney then stated that he would make an offer of proof regarding the reputation testimony. The court responded that defendant would call his parish priest to “testify that the defendant has a general reputation in the community which he lives and works and is known for truth and veracity. Is that right?” Defense counsel replied, “Honesty and integrity, Judge. That’s correct.” Counsel then said, “In addition, Judge, the same I would assume the same ruling goes for Mr. House’s employer, Miss Kelly. *** And we would in fact make the identical offer of proof as to Miss Kelly.” The court replied, “All right.”

The case at bar is similar to People v. Cobb (1989), 186 Ill. App. 3d 898, 542 N.E.2d 1171, in which the court stated:

“Generally, to preserve the issue of the wrongful exclusion of evidence for review, an offer of proof must be submitted. [Citation.] *** A detailed and specific offer of proof is necessary when it is not clear what the witness’ testimony will be or his basis for so testifying. [Citation.] *** In the case at bar, defendant did not make an offer of proof. Defendant’s counsel simply stated that he was prepared to call the police officer who investigated the prior incident to testify as to a character trait [of the victim] of violence or turbulence. This is wholly insufficient to preserve this issue for review. ‘[A]n informal offer of proof [by an attorney] which merely summarizes the witness’ testimony in a conclusory manner is insufficient to preserve the error.’ [Citation.] We have no way of determining exactly what the substance of the testimony was. Additionally, we do not know the basis of the officer’s knowledge. The officer may have simply been recalling what other people had told him during his investigation of the incident. This would, of course, be inadmissible hearsay. We cannot fully determine from the whole record whether excluding this undefined testimony was reversible error. [Citation.] Since defendant did not adequately tender an offer of proof, we find this issue to be waived.” 186 Ill. App. 3d at 905-06.

Although the offer of proof in the instant case was supplied in part by the court rather than defense counsel, we conclude that the principles stated above from Cobb apply with equal force to the case at bar. There is nothing in the record to show that the trial court prevented defense counsel from making a complete and accurate offer of proof. The offer of proof made in the case at bar was merely an informal offer which summarized the witnesses’ testimony in a conclusory manner. Because this offer of proof was inadequate, as Cobb indicates, we conclude that the defendant’s claim has been waived.

Even assuming arguendo that the issue had been properly preserved and that the trial court erred in its ruling with respect to defendant’s reputation testimony, we find that the excluded evidence was not sufficiently prejudicial to warrant a new trial. The State’s evidence demonstrated that defendant proceeded at a high rate of speed across an intersection congested with pedestrian and vehicular traffic, under adverse weather conditions, in an attempt to change into an adjacent lane in front of oncoming traffic. Defendant’s vehicle hit the victim, and the force of this impact fractured the windshield of defendant’s car and left hair and skin particles from the victim. In view of the evidence, we cannot say that the trial court’s exclusion of defendant’s reputation testimony, regarding his lack of recklessness in the past, was so prejudicial that defendant should be accorded a new trial.

Defendant further asserts that he is entitled to a new trial because the court incorrectly instructed the jury. Initially, defendant maintains that the jury should have been instructed that “where acts or circumstances are attributable to either an innocent or criminal cause, the innocent hypothesis is to be adopted.” It is well established that “the trial court should instruct the jury to adopt the hypothesis as to the factual occurrence which favors the innocence of the defendant where opposing theories as to guilt or innocence can arise out of the same facts.” (People v. DeHoyos (1975), 31 Ill. App. 3d 12, 20, 332 N.E.2d 643, aff’d (1976), 64 Ill. 2d 128, 355 N.E.2d 19, citing People v. Lefler (1967), 38 Ill. 2d 216, 230 N.E.2d 827.) The theories of defendant’s guilt or innocence in the case at bar did not rest upon the same facts. The testimony from Alvarez and defendant was contradictory as to what transpired during the incident. Consequently, the instruction was properly refused. See People v. Rhodes (1969), 41 Ill. 2d 494, 244 N.E.2d 145; People v. Starks (1988), 169 Ill. App. 3d 588, 523 N.E.2d 983; People v. Cannon (1975), 25 Ill. App. 3d 737, 323 N.E.2d 846; People v. Decker (1974), 19 Ill. App. 3d 86, 311 N.E.2d 228; People v. Mead (1972), 3 Ill. App. 3d 565, 278 N.E.2d 15.

Defendant suggests that the jury should have been instructed “that defendant may have been guilty of negligence in the operation of his car at the time and place of the accident does not lead, necessarily, to the conclusion he was guilty of reckless homicide.” Defendant asserts the jury also should have been informed that “criminal liability does not attach to every act of negligence resulting in injury, or even death, to another person, but only to negligence of such a reckless or wanton character as to show an utter disregard for the safety of others under circumstances likely to cause an injury.” Defendant argues that the jury also should have been told that “a person acts recklessly when he consciously disregards a substantial and unjustifiable risk that circumstances exist that were likely to cause the death or great bodily harm to some individual, and such disregard constitutes a gross deviation from the care which a reasonable person would exercise in the situation.”

Rather than instruct the jury according to defendant’s proffered non-Illinois Pattern Jury Instructions (hereinafter IPI), the trial court gave the jury the standard IPI instructions, which provide as follows:

“A person commits the offenses of reckless homicide when he unintentionally causes the death of an individual by driving a motor vehicle recklessly and in a manner likely to cause death or great bodily harm.”
“A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross departure from the standard of care which a reasonable person would exercise in the situation.” See Illinois Pattern Jury Instructions, Criminal, Nos. 7.09, 5.01 (2d ed. 1981) (hereinafter IPI Criminal 2d).

The trial court also gave the jury the standard IPI instruction with respect to the elements of the offense of reckless homicide. IPI Criminal No. 7.10.

In our view, the trial court clearly and accurately instructed the jury of the nature of the offense for which defendant was charged, and clearly and accurately informed the jury of the distinctions between ordinary negligence and criminal recklessness as applicable to the instant cause. As a result, we find no abuse of discretion in the trial court’s instructions to the jury in the case at bar. See, e.g., People v. Holliday (1985), 139 Ill. App. 3d 500, 487 N.E.2d 993; People v. Wolfe (1983), 114 Ill. App. 3d 841, 449 N.E.2d 980.

Defendant also contends that the trial court’s remarks during the course of the trial created a prejudicial atmosphere that deprived defendant of a fair trial. We have reviewed the record and find that the court’s statements were proper exercises of the court’s discretion, causing no prejudice to the defendant. (See, e.g., People v. Mahaffey (1978), 60 Ill. App. 3d 496, 377 N.E.2d 85.) We also find no abuse of discretion in the three-year sentence imposed by the trial court in the instant cause. See e.g., People v. Leonora (1985), 133 Ill. App. 3d 74, 477 N.E.2d 1277.

Pursuant to the State’s request and in accord with People v. Nicholls (1978), 71 Ill. 2d 166, and People v. Agnew (1985), 105 Ill. 2d 275, we hereby assess defendant $75 as costs for this appeal and incorporate it as part of our judgment.

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

Affirmed.

LINN, J., concurs.

JUSTICE JOHNSON,

dissenting:

I respectfully disagree with the majority. I will limit my discussion to whether (1) the failure to allow defendant’s character witnesses to testify constituted prejudicial error, and (2) the People proved beyond a reasonable doubt that defendant was guilty of reckless homicide. I find no merit in the other contentions raised on appeal.

The following facts are taken from the testimony adduced at trial. On December 10, 1985, in the afternoon, defendant drank two beers and took a nap before preparing to attend a party. In the early evening while driving to the party, defendant stopped at the red light just before the intersection of 79th Street, Stony Island Avenue, and South Chicago Avenue. Gilberto Alvarez and his passenger were also stopped at the light. The weather on that particular evening was foggy and rainy. Alvarez stated that defendant’s automobile was stopped at the light, in the left-hand turning lane. After the light turned green, both cars proceeded into the intersection. About halfway into the intersection defendant did not make a left turn, but, instead, accelerated and changed lanes, cutting in front of Alvarez’ car. Alvarez further testified that he saw “a body in the air” at about the same time defendant swerved into his lane. Alvarez followed defendant’s car and obtained the vehicle’s license plate number and then returned to the scene of the accident. Defendant testified that he proceeded into the intersection at a speed of 25 or 30 miles per hour. He stated that he heard a loud thump and did not know what had hit his vehicle. He believed someone had thrown something at the vehicle, since the immediate area was a gang hangout. Thus, in fear, he did not stop to see what had occurred.

After defendant was notified that Chicago police officers were at his home looking for him, he immediately returned home. Officer James Jackson was parked at 1932 East 80th Street and observed defendant as he arrived home. Jackson testified that after approaching defendant, he detected the odor of alcohol on his breath. Defendant was placed under arrest and advised of his rights.

At the police station, defendant took a breathalyzer test, which revealed his blood alcohol to be .08. Hair samples were removed from the fractured windshield of his vehicle. An expert testified that the hair could have come from the victim. The expert also found glass in the victim’s clothing which matched the glass from the windshield of defendant’s vehicle. The medical examiner testified that the victim died of multiple injuries by vehicular homicide.

At the close of the People’s case, defendant’s motion for a directed verdict was denied. Defendant’s motion to allow the character testimony of his parish priest and employer was also denied after the trial court found that defendant’s reputation for truth and veracity was not at issue. A jury found defendant not guilty of driving under the influence of alcohol and guilty of reckless homicide.

A defendant in a criminal proceeding may provide “proof of such previous good character as is inconsistent with the commission of the crime with which he is charged.” (People v. Lewis (1962), 25 Ill. 2d 442, 445; see People v. La Fiura (1981), 93 Ill. App. 3d 1099, 1104.) This proof is established by showing defendant’s reputation for the specific character trait involved. (Lewis, 25 Ill. 2d at 445; La Fiura, 93 Ill. App. 3d at 1104.) Moreover, evidence of community reputation must be based on the witness’ affiliation with defendant’s neighbors and friends. (People v. Kurena (1980), 87 Ill. App. 3d 771, 778.) However, the trial court’s determination concerning the competency to testify as a character witness will not be disturbed absent an abuse of discretion. La Fiura, 93 Ill. App. 3d at 1104.

The State concedes that a criminal defendant may present evidence of his general reputation in the community. However, the State argues that the parish priest could only offer his personal opinion and not information concerning defendant’s general reputation in the community. The State also argues that defendant’s employer did not have any knowledge of his reputation in the community based on association with his friends and neighbors.

I am not persuaded by the State’s arguments. Concerning the parish priest, it is more probable than not that he was familiar with defendant’s general reputation in the community. The church, generally, is an integral part of the community where parishioners gather to converse on various matters. Therefore, the parish priest would more than likely have knowledge of defendant’s reputation in the community. Furthermore, I am not convinced that defendant’s employer could not have competently testified as to defendant’s reputation in his community. The State’s suggestion that the employer could only testify as to defendant’s work reputation is speculative at best. Hence, I find that the trial court erred by not allowing the reputation testimony of defendant’s witnesses.

Defendant also contends that he was not proved guilty of reckless homicide beyond a reasonable doubt. The State maintains that it has met its burden of proof by the evidence which revealed that defendant was driving recklessly, struck and killed the victim, eluded the police, and failed to report the incident to the police.

Under the facts and surrounding circumstances of the case at bar, I find that the State failed to prove defendant guilty of reckless homicide beyond a reasonable doubt. The facts, as presented by testimony at trial, established that on the night in question the weather was wet and foggy. Defendant stopped at a red light and proceeded into the intersection when the light turned green. Defendant did not see the victim at any time nor did any of the testifying witnesses. Although Alvarez’ vehicle was adjacent to defendant’s automobile, Alvarez testified that he did not see the victim until after she had been struck. Defendant stated that he heard a thump but did not stop because he believed that something had been thrown at his car. Furthermore, although defendant admitted drinking beer prior to the incident, the results of his breathalyzer and balance tests revealed that he was not legally intoxicated at the time of the incident. The court also found him not guilty of driving under the influence of alcohol. Contrary to the State’s argument, as soon as defendant learned of the incident, he returned home and he answered the inquiries of the officers. I conclude that defendant was not proved guilty of reckless homicide beyond a reasonable doubt.

I would reverse the judgment of the circuit court.


source: Caselaw Access Project

author: JUSTICE GORDON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREW COX, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—0646
    Opinion filed May 4, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Edwin A. Burnette, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Laura J. Diamant, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Following a jury trial, defendant Andrew Cox was found guilty of aggravated criminal sexual assault and robbery (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 14(a)(4), 18 — 1, respectively), and was sentenced to 25 years’ imprisonment for aggravated criminal sexual assault and six years’ imprisonment for robbery. On appeal, defendant contends that: (1) the trial court improperly allowed the State’s expert witness to testify about the validity of complainant’s allegations; (2) the State failed to prove him guilty beyond a reasonable doubt of aggravated criminal sexual assault and robbery; (3) the trial court improperly instructed the jury on the issue of aggravated criminal sexual assault; (4) the prosecutor’s prejudicial remarks during closing arguments deprived him of a fair trial; (5) the trial court improperly considered the victim’s impact statement at the sentencing hearing; and (6) the trial court improperly sentenced him to an excessive term of imprisonment. For the reasons hereinafter set forth, we affirm.

During the trial several witnesses testified on behalf of the State. Complainant testified that on August 17, 1985, at 12 a.m., her mother, Every, and Every’s boyfriend, Elvis, drove to a “gameroom” located on 15th and Wentworth Avenue in Chicago Heights, Illinois. Elvis and complainant went into the gameroom, leaving Every asleep in the car. Before leaving the car, however, complainant took Every’s “black clutch purse.” The purse contained $150 in cash and food stamps valued at $40.

Complainant further testified that at approximately 1:30 a.m., complainant left the gameroom and walked towards Casak, a bar located a few feet from the gameroom, to purchase a pack of cigarettes. Suddenly, defendant grabbed the back of her jacket, twisted her arm behind her back, and forced her across the street. Complainant screamed for help and struggled to escape, but defendant repeatedly struck her head and face, and threatened to kill her if she did not stop screaming.

According to complainant’s testimony, she was forced down a few streets and pushed through a hole in a park fence. Once she passed through the hole, she was no longer in defendant’s grasp, so she ran. Defendant tackled her to the ground and fell on top of her. He then turned complainant on her back, “took the purse *** threw it to the side,” and then reached into his pocket and threw a white powdery substance on her face. The white powdery substance, a narcotic known as TAC or PGP, got into her nose and burned her eyes.

While complainant was pinned down, defendant had sexual intercourse with her, heedless of her pleas to release her. Afterwards, he picked up the purse and opened it. Complainant demanded that defendant return her purse, but he threatened to kill her if she came close to him. She waited until he left the park before picking up the purse and retrieving its spilled contents.

Complainant left the park and walked down Halsted Street, looking for Every and Elvis. She could not find Every so she continued down Halsted Street. Complainant saw neither a hospital nor a police station within the vicinity. While she walked on Halsted Street for a period of time, a car driven by Andre Walker stopped by complainant, but because she was so frightened, she fled. Walker caught up with complainant and asked her if she was in some kind of trouble, and then with her consent, gave her a ride to Every's home. Every was not at home, so Walker drove complainant to her stepfather’s house. Her stepfather suggested that she report the matter to the police.

On cross-examination, complainant testified that there were streetlights on Wentworth Avenue and that there were people on the street when she was allegedly grabbed by defendant, but no one came to her aid. She stated, however, that when she left the park, she did not go directly to the bar, but walked to Halsted Street. She further stated that while on Halsted Street, she neither called the police nor saw St. James’ Hospital, which was a block away.

Officer Palcek testified that complainant arrived at the Chicago Heights police station at approximately 5 a.m. and described her assailant and the events that occurred. He said that complainant appeared disoriented, confused and had obviously been beaten. He further said he traced the route earlier taken by defendant and then drove complainant to the emergency room at St. James’ Hospital. On cross-examination, he testified that complainant did not inform him that she was in the gameroom with Elvis or that her mother was asleep in the car.

Dr. Asher, complainant’s treating physician, testified that complainant arrived at St. James’ Hospital at 6 a.m., and informed him that she had been grabbed around the neck, struck in the face and head, and raped. His external examination revealed some swelling around her right eye and neck, but X-ray results confirmed that she had no broken bones or fractures. On cross-examination, Dr. Asher testified that the X-ray results revealed that the soft tissue on complainant’s neck was normal, and, other than mild swelling, there was no evidence of traumas.

Additionally, on cross-examination, Dr. Asher said that he had treated about 100 alleged rape victims, and when asked on redirect examination how he remembered complainant, the following exchange took place:

“A. Well, just a subjective feeling, her demeanor was such that my level of suspicion, in terms of the validity of her claims, was perhaps — .
MR. MC KEIGUE [defense counsel]: Objection, your Honor, suspicions, assumptions.
MS. DOOLING [assistant State’s Attorney]: Judge, I think he brought it up when he inquired of the hundreds and he remembers this one.
THE COURT: The objection will be overruled.
MS. DOOLING: Q. What was unusual about her, Doctor, that you remember?
A. There are many people, there are many people we see with alleged sexual assault, who, indeed, subjectively don’t seem terribly upset or disturbed. And though, of course, from my point of view, I never know, in any given case, if it is a real assault or not. A person who comes in distraught, upset, certainly arouses more apparent validity for the claim than someone who comes in sort of grinning and smiling and seeming not terribly upset.”

Detective Schmidt testified that at 9:20 a.m., he spoke with complainant and she identified defendant from 1 of 10 photographs. His description of complainant’s physical appearance corroborated the testimony given by Officer Palcek. He stated that complainant appeared very upset and cried excessively, her hands trembled, and there was swelling on the right side of her head, reddish bruises on her right cheek and some kind of mark on her throat. After speaking with complainant, he and complainant drove to the park, took photographs and searched for evidence. He found some of the contents of Every’s purse in a park trash can. After he completed his investigation at the park, he and complainant returned to the police station and obtained latent fingerprints from Every’s black purse. Four latent fingerprints obtained from the purse matched defendant Cox’s fingerprints.

Detective Schmidt also stated that, at 4 p.m., complainant reviewed a lineup of five men and identified Andrew Cox. At 5:20 p.m., Miranda warnings were read to defendant, and, an hour later, defendant confessed that he beat complainant and had sex with her, and he took money from her purse. An assistant State’s Attorney wrote out defendant’s statements and read them to the defendant before he signed.

Carl McCann testifying for the defense stated that in the early morning hours of August 17, he was driving to the gameroom on 15th and Wentworth Avenue when he saw defendant and a young lady walking down the street. He did not see defendant choke or twist the lady’s arm nor did he hear her scream. On cross-examination, however, he testified that he could not give a description of the lady he saw with defendant nor was he certain about the date.

Defendant testified on his own behalf. He stated that on August 17, he was standing outside the bar when he saw complainant exit the bar. He approached her and asked if she wanted to purchase some TAC, and she replied, “Wait a minute baby” and went into the bar. Shortly thereafter, complainant came out and indicated that she wanted to purchase some drugs and followed defendant Cox down the street.

Defendant and complainant then walked about half a block towards 14th Street, talked, and stopped to see one of his friends. They entered a park through a hole in the fence. At the park, they kissed and talked and he gave her drugs. After having sex, he walked her back to 15th and Wentworth Avenue and said good-bye.

Defendant testified that at the police station, he informed Detective Schmidt and the assistant State’s Attorney that complainant was not forced to the park and that she consented to have sex. Furthermore, he stated that the assistant State’s Attorney told him that he would be sent home and not charged with a crime if he signed a statement. He then signed the statement.

On cross-examination, defendant denied making the purported confession, and he also denied that the statement was read to him before he signed. Defendant denied that he told either the police officers or the assistant State’s Attorney that he forced complainant to the park, beat her, and had sex with her, but admitted to taking $40 in cash and some food stamps from the purse.

During closing arguments, the defense counsel stated:

“Now, according to the Detective and the State’s Attorney Parchem, a State’s Attorney and attorney for four and a half years, he writes down this summary and leaves out the important things ***. Let’s assume [the prosecutor] told you the truth all the way down the line.”

In rebuttal, the State argued:

“Counsel would have you believe that everybody is going to put their jobs on the line for this guy. *** I take offense at that argument, that everybody is lying about the defendant. The officer had a job to do. The Assistant State’s Attorney was working felony review. He had to go out, and decide what to do about the case. That was his job.”

Following closing arguments, the trial court instructed the jury. After deliberating, the jury found defendant guilty of aggravated criminal assault and robbery. A sentencing hearing was held, and the State presented complainant, who then delivered a victim impact statement. The trial court sentenced defendant to a six-year imprisonment term for robbery and a 25-year imprisonment term for aggravated criminal sexual assault. Defendant appeals.

Defendant contends that the trial court erred in admitting Dr. Asher’s testimony that there is more apparent validity to a claim of sexual assault where the alleged victim appears emotionally distraught, as was the complainant. Defendant maintains that, in effect, Dr. Asher was improperly testifying about complainant’s credibility. Conversely, the State contends that: (1) Dr. Asher’s testimony was within the bounds of his expertise because he was a physician who had a wide range of experience in the treatment of rape victims; (2) the testimony was permitted as a response to defense counsel’s attempt to impeach Dr. Asher’s recollection on direct examination that he had handled 100 such rape victim cases in the emergency room; and (3) if there were error, it was harmless, and moreover, it was waived by defendant’s failure to make a timely objection at trial or to include it in his written post-trial motion.

The State’s contention that Dr. Asher’s testimony pertaining to the relative credibility of rape victims exhibiting emotional distress was a proper subject of expert testimony is without merit. Without question, expert testimony pertaining to the credibility of a witness is inadmissible where it does not present a concept beyond the understanding of the average person. (People v. Nix (1985), 133 Ill. App. 3d 1054, 479 N.E.2d 1147.) In Nix, the defendant sought to introduce expert testimony that stress affected the ability of the victim to perceive the details of an assault. The Nix court stated:

“The credibility of witnesses in criminal proceedings is strictly within the competence of the fact finder. (People v. Ellis (1978), 74 Ill. 2d 489, 384 N.E.2d 331.) Expert testimony regarding the credibility of witnesses is properly excluded if the expert’s opinion does not present a concept beyond the common and ordinary understanding of the trier of fact. People v. Slago (1978), 58 Ill. App. 3d 1009, 374 N.E.2d 1270.
We find in the instant case that the trial court properly excluded the expert testimony offered by the defendant. The fact that people in stressful situations sometimes have trouble recalling details is well within the comprehension of the trier of fact.” (Nix, 133 Ill. App. 3d at 1059, 479 N.E.2d at 1151.)

In People v. Slago (1978), 58 Ill. App. 3d 1009, 374 N.E.2d 1270, the court upheld the exclusion of testimony of a psychologist that the defendant could have made a false confession out of fear of the alleged real murderers. The Slago court stated:

“In our view of this case, however, the expert opinion that the hypothetical defendant could have confessed falsely out of fear of the alleged real murderers does not present a concept beyond the understanding of the average person and the jurors did not need the expert advice offered by Dr. Goldman to fully consider that matter.” (Slago, 58 Ill. App. 3d at 1016, 374 N.E.2d at 1275.)

Similarly, in the instant case, the fact that there may be more validity or credibility to an emergency room complaint of sexual assault by an alleged victim showing emotional distress than by someone who does not “seem terribly upset or disturbed” is well within the range of understanding and knowledge of the average person and is therefore not a proper subject of expert opinion.

Nor can Dr. Asher’s testimony be justified as a response to attempted impeachment. The record does not disclose that defendant attempted to impugn Dr. Asher’s recollection of the complainant based upon the large number of rape victims treated by him. The record does disclose that the State raised that question on its own initiative on redirect examination. Moreover, if there would have been an attempt to impeach Dr. Asher’s recollection based on the number of victims treated by him, it would not have been necessary to permit the witness to testify as to the complainant’s enhanced credibility. The testimony could have simply indicated that complainant, unlike many other alleged victims who are casual and unemotional, made an impression upon him by virtue of her apparent state of emotional distress. There would have been no manifest necessity to permit the witness to elaborate upon the correlation between such distress and the apparent “validity” of her claim.

The State, however, is correct in its contention that even if it were . error to admit testimony touching upon the credibility of the complainant, that error was waived. In order to preserve an issue for review, there must be a specific objection at trial and in a written post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The record discloses that no specific objection to the introduction of this evidence was made at trial. Defendant did make a contemporaneous objection on the grounds that the doctor was testifying about his “suspicions” and making “assumptions,” but that objection did not sufficiently specify or relate to the issue he now raises on appeal. (People v. Smith (1985), 139 Ill. App. 3d 21, 486 N.E.2d 1347.) Moreover, defendant did not raise any of these issues in his written post-trial motion. We therefore agree with the State that defendant failed to preserve this issue. We must next determine whether the plain error rule can be invoked.

The doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error was of such magnitude that the defendant was denied a fair trial. (People v. Lucas (1981), 88 Ill. 2d 245, 430 N.E.2d 1091.) In the case at bar, the evidence was neither closely balanced nor was the error of such magnitude that the defendant was denied a fair trial.

Several witnesses, including the complainant, provided testimony supporting defendant’s guilt. Complainant’s testimony that she was beaten was corroborated by expert testimony and medical evidence. The State’s expert witness testified that when complainant came into the hospital, there were visible bruises on her neck and mild swelling around her right eye. Additionally, the police officer and the two detectives who interviewed complainant gave similar testimony of her emotional and physical condition. More significantly, the record discloses that defendant signed a statement admitting to the crimes. Thus, our review of the record demonstrates that the evidence was not so closely balanced as to prompt this court to invoke the plain error doctrine.

Furthermore, the error was not of such magnitude as to deny the defendant a fair trial. The testimony of Dr. Asher was not directed to the issue of the complainant’s credibility but rather to corroborate his recollection of the complainant’s emergency room examination. Moreover, complainant was exposed to the direct credibility evaluation of the jury when she testified in court, while the testimony of Dr. Asher did not relate directly to her demeanor in court but only to her demeanor in the emergency room. Also, in addition to the testimony of Dr. Asher, there was testimony of Detective Schmidt concerning complainant’s state of emotional distress in the immediate aftermath of the alleged sexual assault from which the jurors could have drawn their own inferences as to her credibility. Finally, as previously discussed, there was abundant evidence to support the verdict without the disputed testimony of Dr. Asher, including defendant’s written confession.

Under these circumstances, the invocation of the plain error rule as an exception to the waiver doctrine would be unwarranted. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) Moreover, this analysis of the evidence would support a finding that, even if not waived, the error in admitting the testimony of Dr. Asher as to complainant’s credibility would be harmless, without prejudicial impact. See People v. Reding (1989), 191 Ill. App. 3d 424, 547 N.E.2d 1310.

Defendant next contends that the State did not prove him guilty beyond a reasonable doubt of aggravated criminal sexual assault and robbery.

Generally, on review, the relevant inquiry when the sufficiency of the evidence is at issue is whether, “ ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) In reviewing the evidence, it is not the function of the reviewing court to retry the defendant, nor may the reviewing court substitute its judgment for that of the trier of fact on questions relating to the credibility of witnesses and the weight of the evidence. People v. Sanchez (1987), 115 Ill. 2d 238, 503 N.E.2d 277.

To find defendant guilty of aggravated criminal sexual assault, the trier of fact must find that defendant committed an act of sexual penetration by the use of force or threatening the use of force during the “course of the commission or attempted commission of any other felony.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)(4).) When a defendant denies the charge of aggravated criminal sexual assault, however, his conviction will be upheld if there is either some corroboration of the testimony of the complaining witness or the testimony is otherwise clear and convincing. (People v. Graham (1978), 60 Ill. App. 3d 1034, 377 N.E.2d 179.) The complaining witness’ testimony need not be uncontradicted or unimpeached in order to be deemed clear and convincing. Graham, 60 Ill. App. 3d at 1045, 377 N.E.2d at 186.

Considering all the evidence, which includes complainant’s testimony, as well as the testimony of Dr. Asher, Officer Palcek, Detective Schmidt, coupled with the photographs of complainant after the incident, and defendant’s signed confession, in a light most favorable .to the prosecution, a trier of fact could readily find the essential elements of the crimes beyond a reasonable doubt. Defendant admitted on the witness stand that he had sexual intercourse with complainant but alleged that it was consensual, denying any use of force. Complainant testified that she was grabbed, beaten, and struck in the head and face and forced to have sexual intercourse. Other witnesses that saw complainant after the incident gave corroborative testimony of complainant’s injuries and emotional condition. Dr. Asher, the treating physician, testified that an external examination of complainant four hours after she had been sexually assaulted revealed swelling and bruises around her right eye and mild swelling and redness on the front portion of her neck.

Defendant maintains that various inconsistencies and discrepancies in the evidence rendered complainant’s testimony unbelievable. He points to the doctor’s testimony, which tended to show that complainant’s injuries were not as severe as she had led the jury to believe. Defendant also points to the fact that she walked past the police station and the hospital without making a prompt complaint. The jury could have attributed other reasons for complainant’s failure to make a prompt complaint in light of her own testimony that she was not familiar with the area, and Officer Palcek’s testimony that the police department building is not recognizable as a police station. Furthermore, defendant points to the lighted street, the failure of complainant to ask Walker to take her to a hospital or a police station, and the failure of the State to charge him with kidnapping. A trier of fact could have found the essential elements of the crimes notwithstanding such discrepancies. See People v. Trejo (1976), 40 Ill. App. 3d 503, 352 N.E.2d 68.

Defendant further raises the question of the sufficiency of the evidence as it applies to his robbery conviction without any argument or citation of authority in his brief in support of his contention. Although contentions which are not supported by argument or citation of authority are waived (People v. Adams (1969), 109 Ill. App. 2d 385, 248 N.E.2d 748), we choose to address the issue.

A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force. (Ill. Rev. Stat. 1987, ch. 38, par 18 — 1.) The force element of robbery is satisfied if the fear of the alleged victim was of such nature as in reason and common experience is likely to induce a person to part with property for the sake of her person. The cause which gives rise to the fear must precede or be contemporaneous with the taking. People v. Whitley (1974), 18 Ill. App. 3d 995, 311 N.E.2d 282.

After reviewing the evidence in the case at bar, in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of robbery beyond a reasonable doubt. Complainant testified that she was beaten and pushed through a hole in a park fence. When she ran, defendant tackled her to the ground. While he was on top of her, he took the purse out of her hand and threw it on the ground. This is corroborated by evidence that fingerprints obtained from the purse matched those of defendant. Moreover, complainant further testified that after the sex act she saw defendant with the purse and demanded that he return it, but he threatened to kill her if she came close to him. More importantly, defendant admitted that he took money and some food stamps out of the purse. Thus, based on the testimony adduced at trial, a trier of fact could readily have found that defendant took property from complainant by the use of force.

Defendant next contends that the trial court erred in instructing the jury on the issue of aggravated criminal sexual assault. The pertinent instruction was as follows:

“ANDREW T. COX committed the offense of AGGRAVATED CRIMINAL SEXUAL ASSAULT in that he, COMMITTED AN ACT OF SEXUAL PENETRATION, TO WIT: SEXUAL INTERCOURSE UPON [COMPLAINANT] BY USE OF FORCE AND BY THE THREAT OF FORCE, AND THE CRIMINAL SEXUAL ASSAULT WAS PERPETRATED DURING THE COURSE OF THE COMMISSION OF THE FELONY OF ROBBERY BY ANDREW T. COX. ’ ’

Defendant maintains that the evidence shows that the sex act was completed before defendant committed the act of taking the purse, and that there was no evidence that he intended to rob complainant prior to the sex act. We do not agree.

A jury in a criminal case should be instructed as to the theory of the case that may reasonably be inferred from the facts. (People v. Halliday (1985), 139 Ill. App. 3d 500, 487 N.E.2d 993.) The prosecution and the defense are entitled to appropriate instructions which present their respective theories of the case, provided that such theories are supported by the evidence. (People v. Stamps (1982), 108 Ill. App. 3d 280, 438 N.E.2d 1282.) Defendant was charged with aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12— 14(a)(4)), and, as part of the aggravating circumstances, the State was required to prove that defendant committed the criminal sexual assault during the course of a felony. The felony involved was robbery.

Prior to taking the property in complainant’s possession, defendant subdued her with physical force and verbal threats to her life. He tackled her to the ground, and when he was on top of her, took the purse and threw it to the side. After he threw the purse to the side, he had sex with complainant. The force used against complainant in committing the sex act and complainant’s fear occasioned by such force was present and in effect when he took the purse. The fact that he took money from the purse after the sex act is of no consequence because it could reasonably have been inferred from the facts that the force used was still present when he took the money from the purse, in fact, the record discloses that while defendant was taking money out of the purse, complainant demanded the return of the purse, but defendant threatened to kill her if she came close to him.

In a similar case, People v. Kleba (1982), 110 Ill. App. 3d 345, 442 N.E.2d 605, the court rejected the defendant’s contention that the sex act was completed before the taking of the property and that the force involved in the commission of the rape could not be imputed to the taking of the victim’s property. In Kleba, while the victim stood outside her apartment looking for her keys, she was punched in the face and knocked down. While the defendant was on top of the victim, he threatened to kill her if she moved or screamed. The defendant then moved the victim to a dark area and forced her to take off her clothes. While engaged in a sex act, defendant momentarily stopped to loosen the victim’s watch. When the watch fell to the ground, he picked it up and put it into his pocket. The Kleba court held that there was no doubt that the force involved in the rape and the concomitant verbal threats to the victim’s life caused her to part with possession of her watch against her will. (Kleba, 110 Ill. App. 3d at 356, 442 N.E.2d at 613.) Similarly, in the case at bar, it could be inferred from the evidence that the force used in committing the sex act caused complainant to part with the purse against her will. Therefore, we conclude that there was sufficient evidence to support the tendering of that instruction.

Next, defendant contends that the prosecution committed reversible error in its closing argument on rebuttal by allegedly providing personal assurance that defendant committed the offense and by placing the credibility of the State’s Attorney’s office behind the “appropriateness of the conviction.” The State maintains that the prosecutor’s rebuttal comments were proper and were invited by defense counsel’s closing argument.

Generally, although prosecutors are permitted latitude in their closing arguments (People v. Burns (1988), 171 Ill. App. 3d 178, 524 N.E.2d 1164), their remarks must be based on the evidence and reasonable inferences drawn therefrom. (People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746.) Improper prosecutorial remarks in closing arguments do not warrant reversal unless the argument as a whole was so seriously prejudicial that it deprived defendant a fair trial. (People v. Cunningham (1984), 130 Ill. App. 3d 254, 473 N.E.2d 506.) Prosecutors are not permitted to comment on their beliefs in the credibility of witnesses, or on their beliefs that defendant would not have been charged had he not been guilty. See People v. Turner (1984), 127 Ill. App. 3d 784, 469 N.E.2d 368; People v. Valdery (1978), 65 Ill. App. 3d 375, 381 N.E.2d 1217.

During closing argument defense counsel challenged the credibility of two of the State’s witnesses, Parchem, an assistant State’s Attorney, and Schmidt, a police detective. He attempted to demonstrate the implausibility of their testimony concerning the circumstances under which defendant signed his written confession by, among other things, pointing to certain facts allegedly admitted by defendant according to Parchem’s testimony but nevertheless omitted from the written confession prepared by Parchem and signed by defendant. The prosecutor countered in closing argument that she took offense at the argument that everybody was lying; that neither Parchem nor Schmidt would risk their jobs by lying; and that they simply went about doing their jobs.

The prosecutor did not comment on her personal or professional beliefs in the credibility of the witnesses or in the guilt of the defendant. Unlike the facts in People v. Fuerback (1966), 66 Ill. App. 2d 452, 214 N.E.2d 330, cited by defendant, the comments of the prosecutor in this case were addressed in support of the credibility of Parchem and Schmidt, who were actual witnesses in the case. The facts pertaining to their employment, experience, and involvement in the case were previously testified to by these witnesses. Consequently, her support of their credibility drew upon facts in evidence. And, the defense of their credibility on rebuttal was invited by defense counsel’s comments challenging the veracity of their testimony. (See People v. Parks (1988), 168 Ill. App. 3d 978, 523 N.E.2d 130.) Under these circumstances the statement of the prosecutor that she was offended by defense counsel’s aspersions, while technically excessive, was peripheral and harmless. See Parks, 168 Ill. App. 3d 978, 523 N.E.2d 130.

Defendant next contends that the trial court erred in considering complainant’s victim impact statement because, in so doing, his right to due process under the Federal Constitution was violated. In support of his contention, defendant relies on Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529. Such reliance is misplaced.

In Booth, the United States Supreme Court held that the introduction of victim impact evidence as an aggravating factor in a capital sentencing hearing violated the eighth amendment to the United States Constitution. (482 U.S. at 509, 96 L. Ed. 2d at 452, 107 S. Ct. at 2536.) The Supreme Court, however, explicitly limited its holding to capital cases. (482 U.S. at 507 n.10, 96 L. Ed. 2d at 451 n.10, 107 S. Ct. at 2535 n. 10.) Since the case at bar did not involve a capital offense, Booth does not apply.

Defendant further argues that his right to due process under the State Constitution was violated. Our supreme court recently considered that same argument in People v. Turner (1989), 128 Ill. 2d 540, 539 N.E.2d 1196, and held that admission of victim impact evidence in a noncapital sentencing hearing does not violate a defendant’s constitutional rights. (People v. Turner (1989), 128 Ill. 2d 540, 578, 539 N.E.2d 1196, 1213.) On the basis of that decision, we find no merit to defendant’s argument.

Finally, defendant contends that 25 years’ imprisonment for aggravated criminal sexual assault was excessive because he was remorseful during the sentencing hearing and he did not have a substantial history of criminal activity. We disagree.

Aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)(4)) is a Class X felony, carrying a sentence of not less than 6 years’ and not more than 60 years’ imprisonment. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(3).) Thus, defendant’s sentence of 25 years for aggravated criminal sexual assault is within the statutorily imposed sentencing guidelines. When the trial court imposes a sentence which is within the statutory limits, it will not be altered on appeal absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The trial court is in a better position to determine the punishment to impose because the factors used to arrive at a proper sentence are unavailable to the reviewing court. (68 Ill. 2d at 154, 368 N.E.2d at 884.) We find no basis to conclude that the trial court abused its discretion in sentencing defendant. Accordingly, we affirm the judgments of the circuit court of Cook County.

Affirmed.

COCCIA, P.J., and LORENZ, J., concur.

       Justice Pincham heard the oral argument in this case, and following his retirement, Justice Gordon was substituted and he listened to the tapes of oral argument and read the briefs and record.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL CARTER, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—2139
    Opinion filed May 4, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Edwin A. Burnette, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Gayle L. Terry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Following a bench trial, defendant, Michael Carter, was found guilty of burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1) and sentenced to six years’ imprisonment. On appeal, he contends that the State failed to prove him guilty of burglary beyond a reasonable doubt. We affirm.

Detective Robert Browne testified on behalf of the State that at 5:30 a.m. on July 26, 1986, he and his partner responded to an alarm that had been activated in a liquor store, located one-half block away from them. When they arrived at the store, the burglary alarm was still being transmitted. At the store, Browne noticed that a window had been broken. He then looked down the street and saw defendant walking with an object in his hands. Defendant was approximately one-half of a block away from the store when Browne saw him. Browne followed defendant across a parking lot and into an alley. When defendant saw Browne approach him, defendant stopped walking. Browne saw that defendant’s hands were bleeding and that he was carrying a case of Richards Wild Irish Rose wine. He then arrested defendant and drove him back to the liquor store. When they arrived at the store, Browne discovered that there was also blood on the window and on two coolers placed by the window. Browne further testified that when the owner of the store arrived, he identified the case of wine recovered from defendant as one of the cases that had been stolen from his store.

On cross-examination, Browne testified that he did not see defendant enter or leave the liquor store and that he did not take samples of the blood he discovered at the store for testing. He also acknowledged that he failed to state in his report that there was blood on the window and cooler.

The parties stipulated that if the owner of the liquor store, Abraham Ali, were to testify, he would state as follows: At 8:30 p.m. on July 25, 1986, he locked the burglary gates and window of his shop. When he left his store, the burglary gates covering the west-side window were locked and that window was not broken. At 5:30 a.m., the next day, the police department informed him that there had been a forced entry into his store. When he arrived at the store, the gates he had earlier locked had been removed and the window broken. He inspected his store and found that five cases of Richards Wild Irish Rose wine had been stolen. He identified the case of wine found in defendant’s possession as one of the cases stolen from his store. He did not give defendant or anyone else permission to enter his store.

Defendant testified on his own behalf that he was on his way to seek employment at a “day labor” service in the early morning hours of July 26, 1986, when he saw a man walking out of a gangway with boxes. That man placed the boxes on the sidewalk. When the man left, defendant picked up one of the boxes and walked away. When he walked into an alley, he was stopped by Detective Browne. Defendant admitted being caught with a case of wine but denied taking it from the store.

On cross-examination, defendant testified that he left his house, which was about two blocks from the liquor store, at 4:40 a.m. He further testified that he did not get a close look at the man who purportedly left the cases of wine on the sidewalk. Moreover, he stated that his hands were bleeding because he had been stabbed 30 times by two men at about 3 a.m., that same day.

At the conclusion of the evidence, the State proffered certified copies of defendant’s prior convictions, which revealed that defendant had two burglary convictions and had once been convicted of attempted burglary. The trial court found defendant guilty of burglary and sentenced him to six years’ imprisonment. Defendant appeals, contending that he was not proved guilty of burglary beyond a reasonable doubt since there was no evidence that the blood found at the store was his blood.

Generally, in cases involving exclusive possession of recently stolen property, the question of whether the State sustained its burden of proving defendant guilty depends on whether it was proper for the trier of fact to infer guilt from the defendant’s possession of recently stolen property. (People v. Mallette (1985), 131 Ill. App. 3d 67, 475 N.E.2d 237.) As articulated in People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, the inference is proper if the following three-part test is satisfied: (1) there is a rational connection between defendant’s possession of stolen property and his participation in the burglary; (2) his guilt of burglary is more likely than not to flow from his unexplained possession of burglary proceeds; and (3) there is evidence corroborating the defendant’s guilt. (People v. Housby (1981), 84 Ill. 2d 415, 424, 420 N.E.2d 151, 155.) The same evidence may be used to satisfy all three parts of the Housby test. People v. Klein (1983), 115 Ill. App. 3d 582, 450 N.E.2d 1268.

Our examination of the record reveals that all three parts of the Housby test were satisfied, and therefore, the inference of the defendant’s guilt by the trier of fact was proper.

The record discloses that there was a rational connection between defendant’s possession and his participation in the burglary. Although there is no evidence of the precise time at which the burglary occurred, the trial judge could have reasonably inferred that the burglary occurred moments before Detective Browne arrived at the store in view of Browne’s testimony that, at 5:30 a.m., he was responding to an alarm that a burglary was in progress at a store only one-half block away, and that the alarm was still being transmitted as he arrived at the store site. The short period of time it took Browne and his partner to get to the store, coupled with the close proximity of defendant to the store, supports that inference.

The record also discloses that once he arrived at the store, Browne remained seated in the squad car and immediately noticed that there had been forced entry into the store because a window had been smashed. Browne momentarily turned his head in a westerly direction and saw defendant carrying an object, subsequently found to be one of the cases of wine that had just been stolen from the liquor store. The defendant was only one-half block away from the store at this point. The short time span between the burglary, which can be inferred to have occurred shortly before the detectives arrived at the store, and the subsequent discovery of the burglary proceeds in defendant’s possession, coupled with the proximity of defendant to the burglarized store, sufficiently established a rational connection between defendant’s possession and his participation in the burglary.

The foregoing evidence is also sufficient to satisfy the second part of the Housby test, requiring that defendant’s guilt more likely than not flow from his unexplained possession of recently stolen property. Moreover, in explaining his possession, defendant testified that he picked up a case of wine that had been stolen by another. When that explanation is considered in conjunction with defendant’s own testimony of the time at which he left his home, coupled with testimony of the proximity of his house to the burglarized store, a trier of fact could reasonably conclude that defendant’s explanation was false. Defendant testified that he left his home at 4:40 a.m. to seek employment. Defendant, however, was subsequently discovered with stolen property, only 21/a blocks away from his house, 50 minutes after defendant testified he left his house. If the defendant in fact left his house at 4:40 a.m., he would have gotten farther than two blocks from his house within that 50-minute time period. Defendant’s explanation failed to reasonably account for his actions or whereabouts within the 50-minute time lapse between leaving his house and being found with the stolen property.

This record amply supports a conclusion that defendant’s proximity to the store when he was found in possession of the stolen property, coupled with his implausible alternative explanation, made it more likely than not that his guilt flowed from his possession.

As indicated earlier the same evidence, if otherwise sufficient, can be used to satisfy each of the three parts of the Housby test. Corroborative evidence here included not only the very short time span between the burglary and the discovery of defendant in possession of the burglary proceeds, but also the implausibility of defendant’s explanation. See Housby, 84 Ill. 2d at 430-31, 420 N.E.2d at 158.

In addition to the foregoing, there was other corroborative evidence of defendant’s guilt. Detective Browne testified that when he stopped defendant, he noticed that defendant’s hands were bleeding, and when he returned to the store, he also discovered that there was blood on the broken window and adjacent cooler. Browne failed to include in his report that he discovered blood on the window and cooler. However, the fact that Browne’s report did not state that he discovered blood on the window and cooler did not preclude the trial court from considering his testimony on this subject. People v. Spain (1980), 91 Ill. App. 3d 900, 414 N.E.2d 1244.

Defendant, however, maintains that Browne’s testimony concerning the blood could not be considered as probative evidence because no tests were performed to establish that it was his own blood. However, the failure to test the blood does not prevent a reasonable inference of culpability to be derived from the coincidence of finding blood at the burglary site and on defendant’s hands, while he was in close proximity, and carrying property stolen from the store.

Defendant attempted to explain that the blood on his hands was the result of 30 stab wounds he sustained at 3 a.m. that same morning. Defendant further testified that he neither called the police nor sought medical attention for his wounds. However, it is improbable that a person sustaining that many stab wounds would not seek immediate medical attention. Moreover, it is also highly improbable and contrary to common experience that a person, who has been stabbed 30 times, would still proceed to seek “day labor” employment within a couple of hours thereafter.

Defendant, however, cites People v. Bryant (1985), 130 Ill. App. 3d 532, 472 N.E.2d 889, as support for his position. In Bryant, a custodian of a school discovered that several items, including a television, had been stolen from the school. During his investigation, he found a yellow button on a window ledge. He did not know how long the button had been on the ledge. A few days after the theft, the defendant was picked up for questioning and it was discovered that his green coat was missing two yellow buttons that looked like the button found at the school. The stolen television was recovered from the home of two women who knew the defendant. There was evidence that other stolen merchandise was delivered to that house by someone other than the defendant.

The Bryant court held that the State failed to sustain its burden of proving the defendant guilty of burglary beyond a reasonable doubt. (Bryant, 130 Ill. App. 3d 532, 472 N.E.2d 889.) The court noted that the only evidence tending to connect the defendant to the crime was the missing buttons and the fact that the television was recovered from the house of defendant’s friend, whom he occasionally visited. The court pointed out that there was no evidence as to how long the button had been at the school, and then found that even if the button was distinctive enough to support the conclusion that it came from defendant’s coat, there was insufficient evidence to establish that the button fell onto the ledge during the commission of the burglary. 130 Ill. App. 3d at 535, 472 N.E.2d at 892.

The present case is unlike Bryant in that defendant was found in exclusive possession of stolen property one-half block away from the liquor store shortly after the crime occurred. In Bryant, however, the stolen property was neither found in defendant’s possession, nor recovered immediately after the alleged burglary. Rather, the stolen television was recovered from a house that was not defendant’s residence, days after the burglary occurred. Moreover, the cotenant of that house testified that other stolen property was brought to the premise by someone other than the defendant, although she did not know who brought the stolen television to her house.

We therefore conclude that the State sustained its burden of proving the defendant guilty beyond a reasonable doubt of burglary. Accordingly, we affirm.

Affirmed.

COCCIA, P.J., and LORENZ, J., concur.


author: JUSTICE MURRAY

text:
    JANE DREWS, Special Adm’r of the Estate of Randall Drews, Deceased, et al., Plaintiffs-Appellees, v. GOBEL FREIGHT LINES, INC., Defendant-Appellant.
    First District (5th Division)
    No. 1—88—2975
    Opinion filed May 4, 1990.

      Clausen, Miller, Gorman, Caffrey & Witous, P.C., and Richard L. Berdelle, of Pretzel & Stouffer, Chartered, both of Chicago (James T. Ferrini, Edward M. Kay, and Richard R. Winter, of counsel), for appellant.
    Albert F. Hofeld and Howard Schaffner, both of Hofeld & Schaffner, of Chicago, for appellees.
    Cassidy & Mueller, of Peoria (David B. Mueller, of counsel), for amicus curiae Illinois Association of Defense Trial Counsel.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant Gobel Freight Lines, Inc., appeals from a wrongful death award of $8,336,000 to plaintiff Jane Drews, individually and as administrator of the estate of her husband, Randall Drews. Defendant specifically appeals from the aforementioned verdict, the judgment entered thereon, and the trial court’s denial of its post-trial motion for a new trial or, alternatively, a remittitur of $3,300,000. Decedent was fatally injured when his camper-van and one of defendant’s semitrailer trucks collided on August 12, 1985. Defendant admitted liability, and the case proceeded to trial on the issue of damages. The verdiets of $150,000 for decedent’s pain and suffering and $7,100 for medical and funeral expenses are not challenged by defendant.

On appeal, defendant asserts that an excessive award resulted because of improper jury instructions, the admission into evidence of certain photographs and videotapes, and an inappropriate closing argument by plaintiff’s counsel. Joining in the appeal as an amicus curiae is the Illinois Association of Defense Trial Counsel (IDG). IDC is concerned only with the issue of whether awards for “pecuniary injuries” under the Illinois Wrongful Death Act (Act) (Ill. Rev. Stat. 1987, ch. 70, par. 2) should be reduced to present cash value.

During trial, there was much testimony about the character and life of decedent from his friends, neighbors, parents, wife, children, professional associates, and others. He was described as an outstanding young man who had a very close relationship with his wife (e.g., they built their home together) and was actively involved in the parenting of his sons. At the time of his death, decedent was 32 years old and his sons were approximately three years old and three months old, respectively. Decedent was also active in community and volunteer activities. The terms “all-American guy,” “great neighbor and friend,” “most memorable person,” “devoted husband and father,” and similar expressions were used to describe him. Videotapes and photographs were admitted showing decedent participating in family activities.

Other witnesses included the first person on the accident scene and a paramedic who attended to decedent. Both men described decedent’s pain and suffering while he was being cut free from the wreckage. Dr. Robert Kirschner, a forensic pathologist who performed the autopsy, testified in detail regarding decedent’s injuries. These included blunt trauma injuries to the head, trunk and extremities, with one of his legs having been mangled when it was pushed against the engine of his van. In addition to this testimony, the trial court admitted certain photographs of the accident and decedent’s injuries over defendant’s objections.

Section 2 of the Wrongful Death Act provides, in pertinent part, that, “in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person.” (Ill. Rev. Stat. 1987, ch. 70, par. 2.) The Wrongful Death Act was originally enacted in 1853 and limited recovery to $5,000. The cap on damages was gradually raised to $30,000 by 1957 and, in 1965, the restriction was deleted in favor of a jury determination as to the amount of recovery without limitation. (See Ill. Ann. Stat., ch. 70, par. 2, Historical Note, at 293-94 (Smith-Hurd 1989).) Despite statutory language that “the jury shall determine the amount of damages to be recovered without regard to and with no special instruction as to the dollar limits on recovery” (Ill. Rev. Stat. 1987, ch. 70, par. 2), Illinois courts have approved jury instructions regarding the elements of damages for which one may recover in a wrongful death action.

In Allendorf v. Elgin, Joliet & Eastern Ry. Co. (1956), 8 Ill. 2d 164, our supreme court held that the loss of a deceased father’s felicity, care, attention, and guidance were compensable as pecuniary injuries. In 1982, “pecuniary injuries” was expanded to include loss of consortium as an element of damages. (Elliott v. Willis (1982), 92 Ill. 2d 530.) The Elliott court defined loss of consortium as including society, guidance, companionship, felicity, and sexual relations. Since then, Illinois courts have broadly interpreted “pecuniary injuries” to include loss of society to parents for the death of a minor child (Bullard v. Barnes (1984), 102 Ill. 2d 505); to parents of an adult decedent (Ballweg v. City of Springfield (1986), 114 Ill. 2d 107); and to the adult children of a decedent (In re Estate of Keeling (1985), 133 Ill. App. 3d 226) regardless of financial dependency upon the decedent (In re Estate of Wiese (1989), 178 Ill. App. 3d 938). There appear to be diverse, but reconcilable, opinions as to whether a decedent’s siblings may recover for loss of society. Compare Prendergast v. Cox (1st Dist. 1984), 128 Ill. App. 3d 84, and Carter v. Chicago & Illinois Midland Ry. Co. (4th Dist. 1985), 130 Ill. App. 3d 431 (sibling recovery denied), with Sheahan v. Northeast Illinois Regional Commuter R.R. Corp. (1st Dist. 1986), 146 Ill. App. 3d 116 (interpreting Prendergast as not barring recovery if a sibling proves damages); accord Singh v. Air Illinois, Inc. (1st Dist. 1988), 165 Ill. App. 3d 923, and Schmall v. Village of Addison (2d Dist. 1988), 171 Ill. App. 3d 344.

Defendant first argues that an award for pecuniary damages for future loss of society must be reduced to present cash value in order to conform to sound economics and public policy. Based on this argument, defendant claims that the trial court erred in instructing the jury that damages for future loss of society are not reduced to present cash value. In short, defendant contends that if the nature of the loss is pecuniary under the Act, then it is also pecuniary for purposes of computation. IDC argues that all damages compensable under the plain wording of the Act, including loss of society and companionship, are pecuniary and, thus, are economic losses which should be reduced accordingly.

We agree with defendant that its contentions are encompassed by the basic query as to whether there are any restrictions placed upon a jury’s determination of an award under the Wrongful Death Act. We acknowledge that the only limitations, in addition to the “fair and just” language of the Act, are those imposed by case law. It is apparent from the Act’s history that the concept of “pecuniary injuries” has been gradually expanded by case law with tacit approval from our legislature since no action has been taken to limit the changes. As a result, courts of review must often rely on case precedent in determining wrongful death issues.

Both defendant and IDG contend that the Air Illinois cases (Singh v. Air Illinois, Inc. (1988), 165 Ill. App. 3d 923; Exchange National Bank v. Air Illinois, Inc. (1988), 167 Ill. App. 3d 1081 appeal withdrawn (1988), 121 Ill. 2d 568; Lorenz v. Air Illinois, Inc. (1988), 168 Ill. App. 3d 1060) were improvidently decided. These First District Appellate Court decisions held that an award for loss of society in a wrongful death action should not be reduced to present cash value. Defendant argues that the present cash value issue was wrongly decided in the Air Illinois cases because: (1) defendant waived the issue by failing to object to plaintiff’s instructions in the trial court and, therefore, the appellate court’s determination of the issue is merely obiter dictum and not precedent (Singh, 165 Ill. App. 3d 923); (2) the court held the jury instruction was proper because defendant failed to cite precedent for its position (Singh, 165 Ill. App. 3d 923; Lorenz, 168 Ill. App. 3d 1060); (3) the court relied on an unpublished but revised draft of the Illinois Pattern Jury Instructions in upholding the validity of plaintiff’s instruction that loss of society should not be reduced to present cash value (Lorenz, 168 Ill. App. 3d 1060); (4) the court’s reference to Illinois Pattern Jury Instructions, Civil, Nos. 34.02 and 34.04 (2d ed. 1971) (hereinafter IPI Civil 2d), which provide that noneconomic damages, such as pain and suffering, disfigurement, and disability, are not to be reduced to present cash value as a basis for approving the loss of society instruction (Lorenz, 168 Ill. App. 3d 1060); and (5) the court’s finding that lost society cannot be calculated to the same arithmetic certainty as economic injury (Exchange National Bank, 167 Ill. App. 3d 1081).

No rehearing petitions were filed in the Air Illinois cases; however, defendant is in essence asking us to now reconsider those cases in the present case. We decline to reconsider the Air Illinois cases, but will merely elucidate the reasons we agree with Justice Buckley’s rulings.

We first note that the waiver of the “present cash value” issue occurred in only one of the Air Illinois cases. (Singh, 165 Ill. App. 3d at 930.) Furthermore, since the Singh appeal was based on an allegedly inappropriate wrongful death award, a ruling as to the propriety of a jury instruction that an award for loss of society should not be reduced to its present cash value could arguably be considered judicial dictum rather than obiter dictum, and as such can serve as precedent or, at the very least, persuasive authority. See In re Marriage of Drews (1985), 139 Ill. App. 3d 763, aff'd on other grounds (1986), 115 Ill. 2d 201.

Defendant also contends that this court approved the “no present cash value” instruction because the defendants cited no precedent. This may have been a factor in the Singh decision, but in Lorenz, Justice Buckley stated, “not only does defendant fail to cite any authority to support its position that such damages are to be reduced to present cash value, but it also overlooks the fact that Illinois Pattern Jury Instructions, Civil, Nos. 34.02 and 34.04 (2d ed. 1971) *** make clear that future noneconomic damages such as pain and suffering, disfigurement, and disability, damages which are akin to those in No. 9A [damages for loss of companionship, sexual relations, and society], are not to be so reduced.” (Lorenz, 168 Ill. App. 3d at 1067.) This analysis is consistent with our supreme court’s recent decision in Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, wherein the court reiterated that in Illinois, future damages for medical expenses and lost earnings shall be discounted to present cash value, but damages for pain and suffering, disability and disfigurement are not.

Despite defendant’s (and IDC’s) assertion that loss of society is a pecuniary and thus an economic damage, our courts have, by inference, espoused a contrary view, i.e., loss of society is a noneconomic element of pecuniary damages. For example, the supreme court in Bullard v. Barnes (1984), 102 Ill. 2d 505, 514, in deciding that parents are entitled to a presumption of pecuniary injury in the loss of a child’s society, states, “[i]n Illinois, too, the trend in our more recent decisions under the Wrongful Death Act has been to expand the scope of pecuniary injury to encompass nonmonetary losses.” (Emphasis added.) The Bullard court continued, citing as an example of this trend the decision in Elliott v. Willis (1982), 92 Ill. 2d 530, which allowed compensation for loss of consortium. Holding that there is no longer a presumption of lost earnings upon a child’s death, the Bullard court noted that “the chief value of children to their parents is the intangible benefits they provide in the form of comfort, counsel and society.” (Bullard, 102 Ill. 2d at 516-17, citing Cockrum v. Baumgartner (1983), 95 Ill. 2d 193.) It is therefore only logical to con-elude that loss of society, no less than pain and suffering, is a noneconomic or intangible injury, and under present practice, should not be reduced to present cash value.

We find defendant’s reliance on Allendorf v. Elgin, Joliet & Eastern Ry. Co. (1956), 8 Ill. 2d 164, to be misplaced. Allendorf was decided 34 years ago and whether loss of society, as it is expansively understood today, should be reduced to present cash value was not the issue. Although the relevant instruction examined by the Allendorf court instructed the jury to reduce awarded benefits to present cash value, the actual issue was whether an actuary should have used neutral figures. We could therefore say that the present cash value issue is obiter dictum, and merely persuasive authority. However, we prefer to follow the current trend wherein our supreme court treats pecuniary damages as including both economic and noneconomic losses. There is no doubt that today the general rule is that future noneconomic damages should not be reduced to present cash value.

We find it difficult to discern defendant’s disagreement with the court’s logic in Exchange National Bank, that a noneconomic damage cannot be calculated to the same arithmetic certainty as an economic damage. This does not mean that intangible damages cannot be calculated based upon the evidence; it merely indicates that the calculations cannot, by the nature of the injury, be as precise as those based on more definite bases, e.g., damages for future earnings.

Accordingly, the Lorenz court’s reference to IPI Civil 2d Nos. 34.02 and 34.04 (pain and suffering, etc.) in categorizing loss of society damages is a reasonable syllogism. Furthermore, defendant’s argument that the Lorenz court erred in relying on an unpublished but revised draft of IPI instructions is without merit. (The Lorenz instruction, which was taken from the revised version, was later adopted by the IPI committee. (See IPI Civil, No. 34.02 (3d ed. 1990) (adopted September 10, 1988).) However, the court explicitly approved the instruction, using the same rationale as in Exchange National Bank, because it determined that loss of society is similar to pain and suffering in that both are noneconomic injuries that should not be reduced to present cash value. Moreover, the instruction as used in the present case is appropriate. An instruction approved by the committee, but not yet approved by the supreme court, is sufficient if it is based on the evidence. DeYoung v. Alpha Construction Co. (1989), 186 Ill. App. 3d 758.

For the above reasons, we join the Fourth District Appellate Court (see Goad v. Evans (1989), 191 Ill. App. 3d 283) in concluding that the Air Illinois rulings are valid precedent for the concept that loss of society damages should not be reduced to present cash value.

Defendant next argues that the verdict is excessive because it is based on sympathy and prejudice. It contends that the $8.3 million award bears no relationship to decedent’s earning capacity or loss of his society. We disagree. The amount of damages to be awarded in a wrongful death action rests largely within the discretion of the jury and should not be overturned unless it is evidently the result of passion or prejudice, falls outside the limits of fair and reasonable compensation, or shocks the judicial conscience. (Dotson v. Sears, Roebuck & Co. (1987), 157 Ill. App. 3d 1036.) We, as a reviewing court, cannot substitute our judgment for that of the jury if the evidence indicates the award is reasonable compensation for pecuniary injuries to decedent’s widow and children. As discussed above, pecuniary injury includes not only loss of financial support, but also all of those intangible benefits encompassed by the terms “loss of society” or “loss of consortium.” Furthermore, a jury may take into account the fact that decedent was enterprising and industrious and had good prospects for advancement. Allendorf v. Elgin, Joliet & Eastern Ry. Co. (1956), 8 Ill. 2d 164.

During trial, there was unrebutted evidence that decedent was an exemplary husband and father. Moreover, contrary to defendant’s assertions, there was competent evidence from which a jury could deduce that decedent would have enjoyed a progressive and substantial increase in his earnings. He was 32 years old when he died. He had worked for seven years as an insurance salesman for his parents’ insurance agency, which he was to have purchased on January 1, 1986, when his parent retired. The agency’s financial records showed that decedent would have earned approximately $60,000 in 1985; $21,860 in a fixed salary and a projected $38,507 in commissions as an independent agent for several health and life insurance companies. Testimony elicited from several insurance executives indicated that decedent had been selected outstanding young insurance salesman of 1985 in Illinois and was also the leading salesman out of 3,000 agents in a three-State area for one company. Another company’s sales manager stated that decedent was the most prolific salesman of the company’s innovative policy. Other testimony indicated that his future as a salesman was “bright,” and that he sold the bulk of casualty insurance for the agency. In addition to this testimony, the record reveals that decedent had sold over $1 million in premiums for his agency in the first 71/2 months of 1985. From the independent commissions on health and life insurance policies he had sold, decedent earned $8,360 in 1982, $11,592 in 1983, $15,595 in 1984, and the projected $38,507 in 1985.

In determining damages, a jury may consider what a decedent earned or might reasonably be expected to earn in the future. (American National Bank & Trust Co. v. Bourland (1978), 65 Ill. App. 3d 977.) The above figures considered in tandem with testimony indicating the possibility that decedent would have been highly sue-, cessful in his field are sufficient bases for a jury to determine that he would have earned considerable future sums as sole owner of the agency. Furthermore, the trial court properly refused to allow defendant to argue to the jury what the sum awarded would return if invested at a specific percent. (See Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1.) Defendant’s attempts to establish the excessiveness of the award by comparing it to awards in other wrongful death cases is without avail. The propriety of such awards is not subject to exact mathematical computation and cannot be measured by comparison with other verdicts. (Northern Trust Co. v. County of Cook (1985), 135 Ill. App. 3d 329.) As a matter of interest, we note that there have been comparable sums awarded to wrongful death plaintiffs at trial court level in cases that have not been appealed to this court. And, this court has recently affirmed an award of $3,600,000 to the husband and 10 adult children for the loss of society of a 75-year-old woman. DeYoung v. Alpha Construction Co. (1989), 186 Ill. App. 3d 758.

Accordingly, since the facts of this case are adequate to support the award, we decline to substitute our judgment for that of the jury. The award does not fall outside the limitations of fair and reasonable compensation. Although we conclude that the record reveals an adequate evidentiary basis for the award, we must still address defendant’s contention that, because of trial errors, the verdict was a result of passion and prejudice. The two morgue photographs of decedent were admissible as being relevant to his pain and suffering. This is so even though the pathologist testified as to decedent’s injuries. If a decedent’s photograph has sufficient probative value, it should be admitted even though it may be gruesome or inflammatory, and such a decision is normally within the trial court’s discretion. (Bullard v. Barnes (1984), 102 Ill. 2d 505.) We find no abuse of discretion here. Defendant also objects to admission of a photograph of the accident scene because it argues that, pursuant to a motion in limine, no evidence regarding the manner or cause of the accident was permitted. The photograph showed defendant’s tractor-trailer surrounding and partially inside the crushed van of decedent. It was admitted for the purpose of showing the extent of pain and suffering during the 30 minutes decedent was pinned inside the wreckage and, again, is a proper exercise of the trial court’s discretion. See Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1; Lindsay v. Appleby (1980), 91 Ill. App. 3d 705.

Defendant also objects to the admission of nine photographs showing decedent, before his accident, engaged in various activities and two video tapes with narration showing him teaching his older son to swim and play golf. No contention has been made that these exhibits were not probative to the relationships of decedent to his wife and sons. There is no reason not to admit such evidence in a wrongful death action in order to depict the love and companionship of a decedent towards his family when such evidence has long been admissible to show that a plaintiff has been feigning injury in personal injury cases. See Cisarik v. Palos Community Hospital (1989), 193 Ill. App. 3d 41.

Defendant’s claim that repetitive jury instructions given unduly emphasized plaintiff’s claim for loss of society is without merit. One of the objected-to instructions explained what is encompassed by the term “pecuniary loss,” e.g., future earnings, society, conjugal relationship, goods and services; the other brief instruction defined “loss of society and companionship,” e.g., love, affection, guidance. These terms do not indicate the same concepts and were based on the evidence. The instructions were complementary, not repetitive.

Lastly, defendant argues that, because of the above alleged errors and a prejudicial closing argument, it did not receive a fair trial. Defendant made no objections at trial to the following alleged errors, but now asserts that the cumulation of these errors mandate reversal under the plain error rule. We first note that matters not objected to at trial are waived for review unless they are so egregious as to deny one a fair trial. (Department of Public Works & Buildings v. Klehm (1973), 56 Ill. 2d 121.) Defendant first objects to statements made during plaintiff’s closing argument regarding decedent’s pain and suffering in which the jury was asked to suppose what his last thoughts were, e.g., “[h]is feet are pinned. He can’t get out. But he feels something warm because that’s the way that somebody feels when they are bleeding ***. He felt his blood, he could smell the flesh burning on his leg up against the engine. That’s something he knew. He was conscious.” While we do not approve of this type of argument, we consider it to be harmless error in this case. The jury had been explicitly informed that this argument applied to decedent’s pain and suffering. The jury’s award of $150,000 on this count was reasonable and was not appealed. Therefore, we can find no prejudice flowing from the remarks. See Fedt v. Oak Lawn Lodge, Inc. (1985), 132 Ill. App. 3d 1061.

We have reviewed counsel’s statements regarding loss of society, e.g., “[y]ou wake up in the morning he’s the first person you see. It sort of makes life worth living, doesn’t it? *** When you got problems, you resolve them together *** .” These and other remarks, were, for the most part, reflections on the very close relationships decedent shared with his family and were based on testimony adduced during trial. No objections were then made and none of the statements rise to the level of plain error. We also dismiss as meritless defendant’s arguments regarding plaintiff’s alleged references to insurance, during voir dire and closing argument. Neither incident appears to be error and, even if it were, no prejudice has been shown. All of the above claimed errors, and others, were brought to the trial court’s attention by defendant’s post-trial motion for a new trial and the subsequent hearing thereon. The trial court’s ruling that no prejudicial error occurred is entitled to great weight (Goad v. Evans (1989), 191 Ill. App. 3d 283) and no sufficient arguments have been proffered to overcome that determination.

It appears to us that this appeal constitutes a back-door attempt to place a cap on wrongful death damages. We are unable to do that absent a valid reason contained in the record. Such limitations are a legislative prerogative. (Jones v. Karraker (1983), 98 Ill. 2d 487.) Accordingly, since the award does not fall outside the parameters of fair and reasonable compensation, is not a result of passion or prejudice, and is not so large as to shock the judicial conscience, we must affirm the trial court’s orders.

Affirmed.

COCCIA, P.J., and LORENZ, J., concur.