text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH MARCOTTE, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0462
    Opinion filed August 20, 1991.
    Rehearing denied September 26,1991.

      Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Kathryn Dobrinic, State’s Attorney, of Hillsboro (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Defendant was convicted of attempting to lure a minor into his car in violation of the child abduction statute. (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 5(b)(10).) We reverse because the jury instructions created a mandatory rather than a permissive inference, thereby shifting to defendant both the burden of producing evidence and the burden of persuasion.

Defendant approached two girls, a 13-year-old and her little sister, in a store, telling one that she was pretty and asking her if she wanted him to buy her a home permanent. She declined. When the girls left the store, defendant motioned them over to his car and asked one of them if she wanted him to pick her up after school to go get her hair done. She said no. The girls ran home and told their parents. Defendant was arrested and charged with attempted child abduction. Ill. Rev. Stat. 1989, ch. 38, par. 10 — 5(b)(10).

At trial the following instructions were read to the jury:

People’s 12

“The attempted luring of a child under the age of 16 into a motor vehicle without the consent of the parent or lawful custodian of the child shall be prima facie evidence of other than a lawful purpose.” (Emphasis added.) (This is not an Illinois Pattern Jury Instruction.)

People’s 18

“Prima Facie evidence is evidence sufficient to establish a given fact if not rebutted or contradicted.” (Emphasis added.)

People’s 12 was patterned after the child abduction statute. According to section 10 — 5(b)(10) of the Criminal Code of 1961 (Code):

“(b) A person commits child abduction when he or she:
* * *
(10) Intentionally lures or attempts to lure a child under the age of 16 into a motor vehicle, building, housetrailer, or dwelling place without the consent of the parent or lawful custodian of the child for other than a lawful purpose.
For the purposes of this subsection (b), paragraph (10), the luring or attempted luring of a child under the age of 16 into a motor vehicle, building, housetrailer, or dwelling place without the consent of the parent or lawful custodian of the child shall be prima facie evidence of other than a lawful purpose.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 5(b)(10).)

Section 10 — 5(c)(4) of the Code provides:

“(c) It shall be an affirmative defense that:
* * *
(4) The person lured or attempted to lure a child under the age of 16 into a motor vehicle, building, housetrailer, or dwelling place for a lawful purpose in prosecutions under subsection (b), paragraph (10).” Ill. Rev. Stat. 1989, ch. 38, par. 10— 5(c)(4).

On appeal, defendant argues that the child abduction statute violates due process as guaranteed by the United States and Illinois Constitutions. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2.) Defendant maintains that the statutory instruction, when combined with the instruction on prima facie evidence, creates a mandatory presumption, thereby shifting the burden of proof to defendant to prove an element of the offense, namely “other than a lawful purpose.” The State argues that “other than a lawful purpose” is not an element of the offense which the State must prove, but rather is an affirmative defense which defendant must raise, as specifically provided for by the statute. (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 5(c)(4).) We agree with the State that “lawful purpose” is an affirmative defense, which must be raised by the defendant. However, the jury instructions given in this case created a mandatory presumption as applied to this defendant, and therefore, defendant is entitled to a new trial.

Defense counsel challenged section 10 — 5(b)(l)’s constitutionality on grounds of vagueness and overbreadth, but did not assert the grounds argued here on appeal. Though failure to object to instructions waives any claimed error (People v. Pastorino (1982), 91 Ill. 2d 178, 435 N.E.2d 1144), challenges to a statute’s constitutionality may be presented at any time. (People v. Zeisler (1988), 125 Ill. 2d 42, 531 N.E.2d 24; People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221.) Moreover, this court may examine this matter under the plain error doctrine (134 Ill. 2d R. 615(a)) and does so here.

We interpret section 10 — 5(b)(10) as requiring the State to prove that defendant: (1) intentionally lured or attempted to lure; (2) a child under the age of 16; (3) into a motor vehicle, building, house-trailer, or dwelling; and (4) without the consent of the parent or lawful custodian of the child. (Ill. Rev. Stat. 1989, ch. 38, par. 10— 5(b)(10).) Not making the words “other than a lawful purpose” an element of the offense is consistent with the statute’s legislative history; namely, that a child abduction offense is complete when one intentionally attempts to lure a child into a car. 84th Ill. Gen. Assem., House Proceedings, May 23, 1985, at 150.

A primary rule of statutory construction is to give effect to the legislative intent by considering the entire statute, “the evil to be remedied and the object to be attained.” (People v. Ivy (1985), 133 Ill. App. 3d 647, 653, 479 N.E.2d 399.) The object: protecting the rights of custodial parents and protecting children from intentional removing, detaining, or concealing by those who have no legal right. The evil: luring or attempting to lure a child under the age of 16 without the parent’s consent. Section 10 — 5(b)(10) condemns the intentional luring of children without parental or custodial consent; that act establishes a violation of the statute. Since defendant is in the best position to know the lawfulness of his purpose, the legislature found it proper to place the burden of proving lawful purpose on the defendant.

Section 10 — 5(b)(10), taken in conjunction with section 10— 5(c)(4), specifically provides that a defendant accused of child abduction may raise “lawful purpose” as an affirmative defense. (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 5(c)(4).) This interpretation of the child abduction statute is analogous to the construction given to the first-degree murder statute, which provides that “[a] person who kills an individual without lawful justification commits first degree murder.” (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a).) In homicide, the words “without lawful justification” do not constitute an element of the offense of first-degree murder, but provide an affirmative defense (see People v. Williams (1980), 80 Ill. App. 3d 963, 969, 400 N.E.2d 532, 536), and this analogy is most persuasive here because the statute expressly makes “lawful purpose” an affirmative defense (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 5(c)(4)). Therefore, we find that the words “other than a lawful purpose” do not constitute an element of the child abduction offense but provide an affirmative defense in accordance with section 10 — 5(c)(4).

The State argues that because “other than a lawful purpose” was not an element of the offense itself and because defendant did not raise the affirmative defense, the jury instruction became irrelevant, and rather than causing prejudice to defendant, it actually placed a greater burden on the State than was required. We disagree.

Mandatory presumptions in criminal cases are unconstitutional because they relieve the State of its burden of proof beyond a reasonable doubt and violate the due process clause by shifting the burden of persuasion to the criminal defendant. (Francis v. Franklin (1985), 471 U.S. 307, 85 L. Ed. 2d 344, 105 S. Ct. 1965.) On the other hand, an entirely permissive inference or presumption, which allows— but does not require — the trier of fact to infer an elemental fact from proof of the basic one, and which places no burden of any kind on the defendant, is clearly permissible. In that situation the basic fact may constitute prima facie evidence of the elemental fact. When reviewing this type of evidentiary device, the Supreme Court has required the party challenging it to demonstrate its invalidity as applied to him. County Court v. Allen (1979), 442 U.S. 140, 157, 60 L. Ed. 2d 777, 792, 99 S. Ct. 2213, 2224.

In this case, instructions 12 and 18 when read together say, “The attempted luring of a child under the age of 16 into a motor vehicle without the consent of the parent or lawful custodian of the child shall be evidence sufficient to establish that the purpose of luring was unlawful unless rebutted or contradicted.” This instruction tells the jury that an unlawful purpose is established, unless it is rebutted or contradicted. The jury was not told that it had a choice of applying the presumption or rejecting it, or that it “may infer” that conclusion; it was told, instead, it “shall” be established. The clear implication to a jury, therefore, was that defendant had to present some evidence rebutting or contradicting the State’s case, or an unlawful purpose was conclusively established, thereby forcing him to either present evidence or allow the inference against him to be automatically established.

We believe the jury should have been instructed as in County Court. In that case, the jury was explicitly told that the presumption if contradicted disappeared, leaving only an inference, and most significantly, that the presumption need not be challenged by affirmative proof, but that it was free to refuse to draw the inference. See County Court, 442 U.S. at 160-62, 60 L. Ed. 2d at 794-95, 99 S. Ct. at 2226-27.

We hold that the jury instructions had the effect of shifting to defendant the burden of producing evidence and the burden of persuasion, thereby violating defendant’s due process rights under both the United States and Illinois Constitutions.

We hasten to make clear that on its face, the child abduction statute does not create a mandatory presumption or improperly shift the burden of proof to defendant and therefore is not unconstitutional, per se. (See People v. Garofalo (1989), 181 Ill. App. 3d 972, 537 N.E.2d 1166 (reckless homicide statute did not create mandatory presumption or impermissibly shift burden of proof to defendant).) As applied to defendant, however, the jury was erroneously instructed that the State had to prove an unlawful purpose, notwithstanding the fact that the defendant presented no affirmative defense; in consequence, the presumption was inadvertently implicated and applied to defendant. The jury was not given any explanatory instructions informing it that it could reject the inference or that defendant need not present affirmative proof in defense. Consequently, we reverse defendant’s conviction and remand to the circuit court for a new trial.

Reversed and remanded.

LEWIS and WELCH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    ANTHONY N. KOLEGAS et al., Plaintiffs-Appellants, v. HEFTEL BROADCASTING CORPORATION et al., Defendants-Appellees.
    Second District
    No. 2 — 90—0992
    Opinion filed August 29, 1991.
    Rehearing denied October 1, 1991.

      Aldo E. Botti and Howard R. Wertz, both of Botti, Marinaccio, DeSalvo & Tameling, Ltd., of Oak Brook (John R. Wimmer, of counsel), for appellants.
    Francis D. Morissey, Thomas F. Tobin, and Michael A. Pollard, all of Baker & McKenzie, and Jane E. Jarsho, of D’Ancona & Pflaum, both of Chicago (John M. McGarry, of counsel), for appellee Heftel Broadcasting Corporation.
    Jean Maclean Snyder and Steven L. Baron, both of D’Ancona & Pflaum, of Chicago, for other appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiffs, Anthony, Donna, and Christopher Kolegas, appeal the dismissal of their first amended complaint by the trial court. Plaintiffs brought this action against defendants, Tim and Beth Disa, two WLUP-AM radio personalities, et al., for defamation, publication of an injurious falsehood, invasion of privacy, and reckless infliction of emotional distress. Defendants moved to dismiss the complaint for failure to state a cause of action pursuant to section 2 — 615 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.) After a hearing on the matter, the trial court dismissed the complaint. We affirm in part and reverse in part.

This action was brought as a result of a radio broadcast on April 26, 1988. According to the amended complaint, Anthony Kolegas was engaged in the business of promoting and producing classic cartoon festivals. In April 1988, Kolegas was preparing for a cartoon festival to be held on April 30 and May 1, 1988. The complaint alleged the cartoon festival was to be a benefit for public awareness of neurofibromatosis, which was once known as the elephant man’s disease. Kolegas intended to donate a portion of the proceeds from the festival to the National Neurofibromatosis (NF) Foundation, Inc. The complaint also alleged that Kolegas’ wife, Donna, and his son, Christopher, were afflicted with the disease.

Kolegas hired Evergreen Media Corporation of Chicago AM to advertise the festival on WLUP-AM from April 25, 1988, through May 1, 1988. On April 26, shortly after the advertisement aired during the broadcast of a radio program featuring Tim and Beth Disa, Kolegas telephoned WLUP-AM. A conversation ensued between Kolegas and Tim and Beth Disa on the air. Kolegas was allowed to introduce himself by name. He stated that he was the producer of the cartoon festival described in the advertisement. He also described the dates and times of the festival, as well as its location.

During the conversation, Kolegas stated that a portion of the proceeds from the festival would benefit the NF Foundation. In response to questions posed by Tim and Beth Disa, Kolegas explained that NF was neurofibromatosis, or elephant man’s disease. Beth Disa asked Kolegas how he was involved, and Kolegas replied that his wife and son had elephant man’s disease. Tim Disa then stated on the air, “You’re gone,” and disconnected Kolegas.

The amended complaint alleges that shortly after the conversation, Tim Disa stated on the air that Kolegas was not for real and that Beth Disa stated that Kolegas was “scamming” them. The amended complaint also alleges that both Tim and Beth Disa stated that “there was no such show as the classic cartoon festival” described by Kolegas.

In addition, the complaint alleges Tim Disa stated, “Why would someone marry a woman if she had Elephant Man disease? It’s not like he couldn’t tell — unless it was a shotgun wedding.” Allegedly, Beth Disa replied that it must have been a shotgun wedding. Shortly after the comments concerning the shotgun wedding, the complaint alleges that Tim Disa stated, “If he is producing it, he’s only producing it part-time. The rest of the time he’s too busy picking out their wardrobe. You know, he has to make sure they have large hats to cover their big heads and make sure that all of their collars are big enough to fit.” Beth Disa allegedly indicated her agreement with that statement. Kolegas’ five-year-old son, Christopher, was listening to the broadcast. Kolegas alleges these statements were made wantonly and maliciously, and with knowledge of, or with reckless disregard as to their truth or falsity.

Count I was brought in the name of Anthony Kolegas alone. It alleges the statements made by the Disas concerning Kolegas’ business were false and defamatory. In particular, Kolegas alleges the statements made by the Disas that he was “not for real,” that he was “scamming” the Disas, and that “there was no such show as the classic cartoon festival” prejudiced him in the business of producing and promoting classic cartoon festivals. Kolegas alleges that, as a proximate result of these false and defamatory statements, he was greatly injured in his reputation and business and that the attendance receipts earned from the festival held April 30 and May 1, 1988, were greatly diminished. Defendants claim these statements are insufficient to support a cause of action for defamation because they consist of constitutionally protected opinion, rhetorical hyperbole, and are capable of an innocent construction. We disagree.

Defamatory statements may be actionable per se or actionable per quod. A statement is actionable per se if it is “so obviously and naturally harmful to the person to whom it refers that a showing of special damages is unnecessary.” (Owen v. Carr (1986), 113 Ill. 2d 273, 277; Schaffer v. Zekman (1990), 196 Ill. App. 3d 727, 731.) Statements are actionable per quod if they necessitate extrinsic facts or innuendo to explain their defamatory meaning, and require evidence demonstrating, as a matter of fact, that some substantial injury resulted to the aggrieved person from their use. (Heerey v. Berke (1989), 188 Ill. App. 3d 527, 532; Schaffer v. Zekman, 196 Ill. App. 3d at 731.) Among other things, a statement is actionable per se if it imputes an inability to perform or want of integrity in the discharge of duties of office or employment or if it prejudices a particular party in his or her profession or trade. (Costello v. Capital Cities Communications, Inc. (1988), 125 Ill. 2d 402, 414; Lowe v. Rockford Newspaper, Inc. (1989), 179 Ill. App. 3d 592, 595.) The statements at issue in count I appear to fall within this category.

A cause of action will not be dismissed under section 2 — 615 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) unless it clearly appears that no set of facts can be proved which entitle plaintiff to recover. (Downers Grove Volkswagen, Inc. v. Wigglesworth Imports, Inc. (1989), 190 Ill. App. 3d 524, 527; Century Universal Enterprises, Inc. v. Triana Development Corp. (1987), 158 111. App. 3d 182, 187.) All facts which are well pleaded are to be construed as true, as well as all reasonable inferences favorable to the nonmoving party which can be drawn from those facts. (Downers Grove Volkswagen, 190 Ill. App. 3d at 527; Century Universal Enterprises, 158 Ill. App. 3d at 187.) Although the question of whether a statement is reasonably understood as defamatory is generally a question of fact for the jury, it is nevertheless the role of the court to determine, in the first instance, if the alleged defamatory remark is reasonably susceptible to an innocent construction. Heerey v. Berke (1989), 188 Ill. App. 3d 527, 530.

In Chapski v. Copley Press (1982), 92 Ill. 2d 344, our supreme court explained how the rule of innocent construction is to be applied. The court stated:

“We therefore hold that a written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance; whether the publication was in fact understood to be defamatory or to refer to the plaintiff is a question for the jury should the initial determination be resolved in favor of the plaintiff.” (Chapski, 92 Ill. 2d at 352.)

In modifying the rule of innocent construction, the court noted that courts applying that rule had been straining to find innocent meanings for words when a defamatory meaning was far more reasonable. (Chapski, 92 Ill. 2d at 350; see also Costello, 125 Ill. 2d at 416.) Thus, this court must determine whether the alleged statements, when given their natural and obvious meaning, may reasonably be innocently interpreted.

In the present case, plaintiff alleges that defendants stated on the air that plaintiff was “not for real,” that plaintiff was “scamming” them and that “there was no such show as the classic cartoon festival.” The trial court was too quick to dismiss count I under section 2 — 615. Plaintiff has pleaded facts sufficient to state a cause of action. These statements are not reasonably susceptible to an innocent construction and, thus, are to be considered libelous per se because they impute a want of integrity in the discharge of the duties of plaintiffs employment and prejudice plaintiff in his trade or business. We leave it to the jury to decide in light of the evidence adduced at trial if, in fact, these statements were understood as defamatory or as referring to someone other than the plaintiff.

Defendants also assert the alleged statements contained in count I constitute privileged opinion and/or rhetorical hyperbole. Illinois courts have recognized the distinction between actionable statements of fact and privileged statements of opinion. (See Owen v. Carr (1986), 113 Ill. 2d 273; Horowitz v. Baker (1988), 168 Ill. App. 3d 603; Stewart v. Chicago Title Insurance Co. (1987), 151 Ill. App. 3d 888.) However, the United States Supreme Court recently abolished what it considered to be the “creation of an artificial dichotomy between ‘opinion’ and fact.” Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, 19, 111 L. Ed. 2d 1, 18, 110 S. Ct. 2695, 2706.

Although the court did away with what it considered to be a wholesale defamation exemption for statements of opinion, it did not eliminate constitutional protection for all types of opinion. The court stated that protection is still to be afforded to statements that cannot reasonably be interpreted as stating actual facts about an individual. (Milkovich, 497 U.S. at 20, 111 L. Ed. 2d at 19, 110 S. Ct. at 2706.) The court also emphasized the duty of an appellate court to make an independent examination of the whole record to ensure the judgment does not constitute a forbidden intrusion on the field of free expression. Milkovich, 497 U.S. at 17, 111 L. Ed. 2d at 17, 110 S. Ct. at 2705.

The question of whether a particular statement is one of privileged opinion or actionable defamation is a question of law. (Owen v. Carr, 113 Ill. 2d at 280.) In order to determine as a matter of law whether the statements constitute privileged opinion, the entire context of the statements must be examined. However, this case is not on appeal following trial proceedings. Rather, this case comes up on appeal after the dismissal of plaintiff’s complaint for a failure to state a cause of action under section 2 — 615. Because we do not have the whole record before us, we must determine only whether plaintiff has pleaded facts sufficient to state a cause of action. Downers Grove Volkswagen, 190 Ill. App. 3d at 527.

All well-pleaded facts are to be construed as true. (Downers Grove Volkswagen, 190 Ill. App. 3d at 527.) The facts as alleged in the complaint, when construed as true, are sufficient to support a cause of action for defamation. It is not at all clear from the face of the complaint that, as a matter of law, these statements were privileged opinion or rhetorical hyperbole. Again, we leave it to the jury to decide if, in fact, these statements were defamatory in light of the evidence adduced at trial.

Next, we consider whether the trial court correctly dismissed count II of plaintiffs’ first amended complaint. Count II alleges the publication of an injurious falsehood. Like count I, this count was brought in the name of Anthony Kolegas alone based on statements made by the Disas that he was “not for real,” that he was “scamming” them and that “there was no such show as the cartoon festival.” Plaintiff alleges these statements were made with reckless disregard to their falsity. This tort has not been recognized in Illinois. Plaintiff asks this court to recognize it for the first time.

The common-law tort known as publication of an injurious falsehood has not been recognized in Illinois. (Suhadolnik v. City of Springfield (1989), 184 Ill. App. 3d 155, 185.) Nor has its subspecies, the tort of commercial disparagement. (American Pet Motels, Inc. v. Chicago Veterinary Medical Association (1982), 106 Ill. App. 3d 626, 633 n.2.) However, this court need not address the issue of whether to recognize this tort for the first time in the present case because the facts as alleged do not support a cause of action for injurious falsehood.

The Restatement (Second) of Torts defines liability for the publication of an injurious falsehood as follows:

“One who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other if
(a) he intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and
(b) he knows the statement is false or acts in reckless disregard of its truth or falsity.” Restatement (Second) of Torts §623A, at 334 (1977).

The comments to section 623A note the similarity between this tort and the tort of defamation. Although both involve the imposition of liability for injuries sustained through publication to third parties of a false statement affecting the plaintiff, the two torts protect different interests. (Restatement (Second) of Torts §623A, Comment g, at 340 (1977).) Defamation is designed to protect the personal reputation of the injured party, whereas injurious falsehood is designed to protect economic interests. Although the two torts may overlap in certain situations, generally the tort of injurious falsehood has more stringent requirements. Restatement (Second) of Torts §623A, Comment g, at 341 (1977).

Most importantly, this tort was designed to apply to situations in which statements were made disparaging the quality of what the plaintiff has to sell or the character of his business. On the other hand, if a statement implies the plaintiff is dishonest or perpetrating a fraud on the public, personal defamation may be found. (Restatement (Second) of Torts §623A, Comment g, at 341 (1977).) The Disas’ statements pertain to plaintiff’s honesty, not to the quality of the classic cartoon festivals. Therefore, the facts do not support a cause of action for publication of an injurious falsehood.

Count III of plaintiffs’ first amended complaint alleges a cause of action for invasion of privacy, in particular, publicly placing another in a false light. This count was brought in the names of Anthony, Donna and Christopher Kolegas. Plaintiffs allege the statements made by the Disas were made in reckless disregard to their falsity and the false light in which the plaintiffs were placed. The alleged statements are as follows. Tim Disa stated, “Why would someone marry a woman if she had Elephant Man disease? It’s not like he couldn’t tell — unless it was a shotgun wedding.” He then stated, “If he is producing it, he’s only producing it part-time. The rest of the time he’s too busy picking out their wardrobe. You know, he has to make sure they have large hats to cover their big heads and make sure that all of their collars are big enough to fit.”

The Restatement (Second) of Torts describes the privacy tort of placing another in a false light as follows:

“One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard to the falsity of the publicized matter and the false light in which the other would be placed.” (Restatement (Second) of Torts §652E, at 394 (1977).)

Because this case comes before the court on a motion to dismiss a complaint for failure to state a cause of action, all well-pleaded facts are admitted as true. (Lovgren v. Citizens First National Bank (1989), 126 Ill. 2d 411, 419.) Again, a motion to dismiss a complaint for failure to state a cause of action should not be granted unless it clearly appears no set of facts could be proved under the pleadings which would entitle plaintiff to relief. Lovgren, 126 Ill. 2d at 419.

In Lovgren v. Citizens First National Bank (126 Ill. 2d 411), our supreme court discussed the elements of this common-law tort. First, it must be determined whether the statements place the plaintiffs in a false light. The first amended complaint clearly alleges the statements place the plaintiffs in a false light. The complaint states that Anthony and Donna Kolegas were not married in a “shotgun” wedding. In addition, as previously stated, the complaint states that Donna and Christopher Kolegas do not have abnormally large heads.

Second, the court must determine whether a finder of fact could decide the false light in which the plaintiffs were placed is highly offensive to a reasonable person. (Lovgren, 126 Ill. 2d at 419-20.) The test articulated by the Restatement states that this element is met “when the defendant knows that the plaintiff, as a reasonable man, would be justified in the eyes of the community in feeling seriously offended and aggrieved by the publicity.” Restatement (Second) of Torts §652E, Comment c, at 396 (1977).

The statements alleged in the first amended complaint are insufficient to support the “highly offensive to a reasonable person” prong of the tort. The false light in which the plaintiffs were placed is not highly offensive to a reasonable person. Accordingly, the trial court properly dismissed this count.

The last issue before this court is whether the trial court properly dismissed count IV of plaintiffs’ first amended complaint. Count IV was brought in the names of all three of the plaintiffs and alleges a cause of action for reckless infliction of emotional distress. This count involves the same statements underlying count III of plaintiffs’ complaint.

The elements of this common-law tort were set out by our supreme court in McGrath v. Fahey (1988), 126 Ill. 2d 78, 86. First, the conduct involved must be truly extreme and outrageous. Second, the actor must either intend that his conduct inflict severe emotional distress or know that there is at least a high probability that his conduct will cause severe emotional distress. Third, the conduct must in fact cause severe emotional distress. (McGrath, 126 Ill. 2d at 86, citing Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 90.) The court pointed out that the tort does not extend to “ ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ ” McGrath, 126 Ill. 2d at 86, quoting Restatement (Second) of Torts §46, Comment d, at 73 (1977).

Generally, Illinois cases in which infliction of emotional distress has been sufficiently alleged have involved a defendant who stood in a position of authority relative to the plaintiff. (McGrath, 126 Ill. 2d at 87.) Many of these cases involve corporate defendants harassing clients, customers or employees. (See Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85; Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740; Milton v. Illinois Bell Telephone Co. (1981), 101 Ill. App. 3d 75.) The degree of power or authority by the defendant over the plaintiff makes an impact in determining whether the conduct was outrageous or extreme. (McGrath, 126 Ill. 2d at 86.) Such a position of authority is lacking in the present case.

However, the McGrath court points out that serious consideration is to be given to the defendant’s awareness that the plaintiff is particularly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. (McGrath, 126 Ill. 2d at 89-90.) Behavior which (though rude, abrasive or extremely inconsiderate) may not otherwise be actionable may be deemed outrageous if the defendant knows that the plaintiff is peculiarly susceptible to emotional distress. Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85.

As tasteless as defendants’ comments may have been, their conduct was not truly extreme and outrageous. Even considering plaintiffs Donna and Christopher Kolegas are afflicted with neurofibromatosis, the statements made do not constitute extreme and outrageous conduct so as to support plaintiffs’ claim for reckless infliction of emotional distress. A court should deny a motion to dismiss unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. (McGrath, 126 Ill. 2d at 90.) No set of facts could be proved under count IV of plaintiffs’ first amended complaint which would allow plaintiffs to recover under a theory of reckless infliction of emotional distress. The trial court properly dismissed this count.

Accordingly, we reverse the portion of the trial court’s order dismissing count I of plaintiffs’ first amended complaint. However, we affirm the portion of the order dismissing counts. II through IV. This cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

WOODWARD and BOWMAN, JJ., concur.


author: PRESIDING JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARKENNETH MIKELL, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 88—1818
    Opinion filed August 2, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Janet Stewart, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William Pistorius, and Joseph P. Roddy, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Following a jury trial defendant was convicted of murder, aggravated battery and armed violence and sentenced to concurrent terms of 20 years for murder and six years for armed violence. No sentence was imposed for aggravated battery. The issues on appeal are: (1) whether defendant was denied his right to effective assistance of counsel; (2) whether the voluntary manslaughter instruction erroneously stated the burden of proof; (3) whether the jury was properly instructed on the armed violence charge; (4) whether defendant was proved guilty of murder beyond a reasonable doubt; and (5) whether the prosecutor’s remarks during closing argument were improper and deprived defendant of his right to a fair trial. We reverse and remand.

Ronald Wynn testified that he had known the murder victim, Richard Burrell, for approximately 20 years. On the night of February 13, 1987, the victim asked Wynn for a ride to the Nabisco plant at 73rd Street and Kedzie Avenue in Chicago. When they arrived at the plant, the victim saw Gloria Winslow, a female acquaintance of his, and he spoke with her for about five minutes. Winslow then entered a vehicle containing two men and a girlfriend of hers from the plant. Wynn and the victim left the plant and drove to a gas station to get some gas. The victim then asked Wynn to drive him to 82nd and Throop Street. When they arrived at this location Wynn saw the car in which Winslow had been riding when she left the plant. The victim approached the other vehicle and began talking to Winslow, who was in the front passenger seat. He then spoke to the defendant, who was in the driver’s seat. At that point, Winslow and the other two passengers, Charles Sutton and Tanya Oates, left the vehicle. Wynn testified that he next saw Sutton and the victim pushing each other. Defendant exited the vehicle and joined Sutton in the fight against the victim. When this occurred, Wynn left his vehicle and started approaching the group to break up the fight. However, defendant came toward him and hit him in the back with his hand. Defendant then pulled the victim off Sutton, and defendant and Sutton started kicking the victim in his side and head. Wynn continued to try and break up the fight, and he saw defendant repeatedly stab the victim with a knife. Wynn stated that defendant was the only one in the group with a knife or other weapon. At some point during the struggle the victim was able to get away from the group and return to Wynn’s vehicle. Defendant tried to come after the victim as the victim approached Wynn’s vehicle but was unable to catch him. Wynn and the victim were taken to the hospital. When Wynn arrived at the hospital, he discovered that he had been stabbed.

On cross-examination, Wynn stated that the victim had indicated that he wanted to see Winslow to give her some money but gave no reason for wanting to go to 82nd and Throop Street. Wynn did not know whether defendant and the victim knew each other prior to the incident. Wynn acknowledged that he and the victim drank a few beers prior to the incident.

Detective Angelo Pesavento testified that he was assigned to investigate the homicide in this case. On the night of the incident he went to the hospital where the victim had been taken and spoke to Wynn. Wynn told him to look for the “ex-boyfriend of Gloria Winslow or the boyfriend of the ex-girlfriend of the victim.” Pesavento spoke with Winslow and obtained defendant’s telephone number. At 6 a.m. on February 14, 1987, the police went to defendant’s home and placed him under arrest. Pesavento noted that defendant had no injuries or marks on his face. Defendant then informed the police where the knife was located, and it was recovered from defendant’s car.

Dr. Michael Chambliss, a forensic pathologist with the Cook County medical examiner’s office, testified that he performed the autopsy on the victim and concluded that he died from a stab wound to his back. He also found evidence of traumatic injury to the side and back of the victim’s head. Chambliss stated that there was evidence of alcohol in the victim’s body.

Tanya Oates testified for defendant that she lived at 8240 South Throop. On the night of the incident defendant was driving her and Gloria Winslow home from the plant when she noticed that the victim was following defendant’s car. When they arrived at her house, defendant and the victim started arguing. She further stated that the victim struck the first blow. When the fight started, Winslow was in the back seat of defendant’s car, and the victim was attempting to pull her out of the car. The victim initially started fighting with Sutton, and Wynn came over and joined in the fight. According to Oates, defendant offered a knife to Winslow for her protection, but she refused it.

On cross-examination, Oates testified that she had known defendant for seven or eight months and that he had been Winslow’s boyfriend at one time. She stated that she did not see defendant with a knife in his possession while he was outside the vehicle, and she did not see him stab the victim. She also acknowledged that she did not see the victim fight with Sutton.

Gloria Winslow testified that she had been the victim’s girlfriend until 2xk years prior to the incident and had not seen him at all since the relationship ended. On the night of the occurrence, the victim had wanted her back, but she had told him that it was all over and to leave her alone. When the two cars were parked in front of Oates’ house, the victim started yelling at defendant to “get out and fight.” Winslow stated that at that point Wynn and Sutton got out of their respective vehicles, and defendant offered her a knife for protection which Winslow refused. Winslow then testified that her relationship with the victim ended in March 1986, but that six or seven months later he had threatened to kill her if she did not come back to him. On another occasion the victim threw acid in her brother’s face in order to prevent her from leaving. Winslow added that defendant knew about this incident.

On cross-examination, Winslow stated that her relationship with the victim had lasted five years and that she seen him 10 or 11 months prior to the incident rather than 2xk years earlier. According to her testimony, the victim had not given her money when he spoke with her outside the Nabisco plant on the night of the incident. She stated that she had known the defendant for about eight months but was not going out with him on the night in question. On the night of the incident Winslow saw defendant on top of the victim during the fight but did not see him kick or stab the victim. She did not know that the victim had been stabbed until the police came to her house.

Charles Sutton testified that he had known defendant for many years. Sutton saw the victim talking to Winslow outside the Nabisco plant on the night of the incident. He had never seen the victim before and had only met Winslow and Oates on one other occasion. When the vehicle in which he was riding left the plant he noted that the victim’s vehicle was following them. At Oates’ house, he got out of the car to “stretch” when he saw the victim walk toward them. He started to get back in the car but the victim grabbed him by the hair and started pulling him away from the vehicle. Defendant and Wynn then exited their vehicles and all four men started fighting.

During cross-examination, Sutton acknowledged that he and defendant were beating the victim. Sutton stated he did not see defendant with a knife but did see something black in his hand which he used to hit the victim in the head. The victim then said that he quit and ran back to Wynn’s vehicle. Sutton denied that he and defendant ran after the victim as he ran away. After the fight, Sutton and defendant went to a friend’s house to watch television. Sutton testified that defendant learned that he had stabbed the victim when he saw blood on his knife.

Defendant testified that he never saw the victim prior to the night of the incident. Defendant was told that Wynn’s vehicle was following him when he and Sutton were driving Oates and Winslow home. He tried to elude them, but Wynn and the victim were at Oates’ residence when defendant arrived. Defendant was told that the victim had thrown acid in Winslow’s brother’s face and caused him to be hospitalized for six months. When he saw the victim, defendant told Oates to go inside and call the police. Sutton then approached Wynn’s car to get the license number. Shortly thereafter, the victim approached defendant’s vehicle and began hitting the car, which resulted in a crack to the front passenger window. Defendant offered a knife to Winslow, and when she refused it, defendant exited the vehicle with the knife still in his hand. According to defendant’s testimony, the fight began when the victim hit defendant and Sutton, who fell to the ground. When the victim was on top of Sutton, defendant removed the knife from his coat pocket and hit the victim’s head a few times with the hand in which he was holding the knife. Defendant also stated that he hit someone with his knife when he was trying to pull the victim off Sutton. However, defendant did not recall stabbing Wynn or the victim.

On cross-examination, defendant stated that he saw the victim reach for his pocket as defendant was trying to pull him off of Sutton. Defendant acknowledged that he did not include this information in his statement to the police. According to defendant’s testimony, he hit the victim with the handle of the knife one time and unintentionally cut someone. However, the day after the incident defendant had given a statement to the police that he held the victim with one hand and stabbed him. In addition, defendant told the assistant State’s Attorney that he struck the victim twice with the fist which was holding the knife. After the fight had ended, defendant went to a friend’s house and watched television until 4 a.m. Defendant then returned home, where he was arrested.

The jury initially returned verdicts of guilty of murder, voluntary manslaughter, aggravated battery and armed violence. When the jury was instructed to deliberate further and return only one guilty verdict on the charges of murder and voluntary manslaughter, the jury found defendant guilty of murder.

Defendant first contends that he was denied effective assistance of counsel by defense counsel’s failure to tender a jury instruction on involuntary manslaughter and by counsel’s request that defendant’s statement be considered as substantive evidence. In order to determine whether defendant has received effective assistance of counsel as guaranteed by the sixth amendment to the United States Constitution (U.S. Const., amend. VI), the Illinois Supreme Court has adopted the two-part test set out in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. Under Strickland, a defendant must show that counsel’s representation fell below an objective standard of reasonableness such that the trial results were unreliable and that but for the attorney’s unprofessional errors, the results of the trial would have been different. (People v. Albanese (1988), 125 Ill. 2d 100, 106, 531 N.E.2d 17, citing Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Under the first component, a defendant must overcome a presumption that his counsel’s conduct fell within a broad range of professional representation, and decisions regarding defense strategy made after a thorough investigation of the law and facts are virtually unchallengeable unless that strategy is found to be unsound. (People v. Barrow (1989), 133 Ill. 2d 226, 248, 549 N.E.2d 240.) Furthermore, without deciding whether the error was serious enough to constitute less than reasonable representation, a court can move to the second part of the two-prong test to determine if defendant has shown that he was prejudiced by the claimed errors and that but for these errors, there is a probability that the results of the proceeding would have been different. People v. Caballero (1989), 126 Ill. 2d 248, 260, 533 N.E.2d 1089.

Defendant identifies two alleged errors by defense counsel which he claims were serious enough to result in ineffective representation. The first error was that counsel failed to tender a jury instruction on involuntary manslaughter. Section 9 — 3(a) of the Criminal Code of 1961 defines involuntary manslaughter as follows:

“A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts *** which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.” (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a).)

Defendant argues that there was enough evidence in the record to support the tender of this instruction, and that the outcome of the trial would have been different if defense counsel had requested it. Thus, he was prejudiced by this omission, which rendered counsel’s representation ineffective.

Defense counsel’s decision to rely on one theory of defense to the exclusion of other theories is generally a matter of trial strategy. (People v. Gallardo (1983), 112 Ill. App. 3d 764, 770, 445 N.E.2d 1213.) Thus allegations arising from matters of judgment or defense counsel’s trial strategy will not support a claim that counsel’s representation was ineffective. People v. Murphy (1978), 72 Ill. 2d 421, 436, 381 N.E.2d 677; People v. Clark (1991), 207 Ill. App. 3d 439, 450, 565 N.E.2d 1373.

It was defense counsel’s theory throughout the instant case that defendant acted in self-defense when he stabbed the victim. Consequently, counsel requested and was granted a jury instruction on self-defense as well as one on voluntary manslaughter. We conclude that defense counsel’s decision to request these instructions as opposed to an involuntary manslaughter instruction was a matter of trial strategy rather than ineffective representation.

In addition, we note that defendant’s claims that there was evidence to support an involuntary manslaughter instruction and that the results of the trial would probably have been different are eonclusory and unsupported by any circumstances surrounding the victim’s death. Furthermore, the victim in this case died shortly after he was stabbed in the back with the knife defendant was holding. Although there is a possibility that other injuries the victim might have received during the fight with defendant could have been unintentional, it does not seem reasonable that the same conclusion could be drawn regarding the fatal stab wound to the victim’s back. Consequently, People v. Robinson (1987), 163 Ill. App. 3d 754, 516 N.E.2d 1292, and People v. Santiago (1982), 108 Ill. App. 3d 787, 439 N.E.2d 984, which defendant cites, are factually distinguishable. In both cases, there was a reasonable possibility that the acts of defendant could have been unintentional.

The next error which defendant claims deprived him of effective representation was counsel’s request that the jury be given an instruction which directed it to consider defendant’s prior inconsistent statement as substantive evidence. The alleged improper instruction was Illinois Pattern Jury Instructions, Criminal, No. 3.06-3.07 (2d ed. 1981) (hereinafter IPI Criminal 2d), which stated:

“You have before you evidence that the defendant made statements relating to the offenses charged in the indictment. It is for you to determine what weight should be given to the statements. In determining the weight to be given to a statement, you should consider all of the circumstances under which it was made.”

Defendant claims that this instruction was improper because his prior statement to the police was admitted by the State only for the purpose of impeaching his trial testimony, and defense counsel’s request for IPI Criminal 2d No. 3.06-3.07 allowed the jury to consider the prior inconsistent statement as evidence of its truth. The prior statement to which defendant refers was his statement to the police that he held the victim down and stabbed him. At the trial defendant testified that he did not know that he had stabbed the victim. Defendant claims that he was prejudiced by the instruction that counsel requested and that the jury’s consideration of his prior statement as substantive evidence contributed to the verdicts he received.

In reviewing the propriety of a jury instruction in criminal cases, the particular instruction must be considered in conjunction with all of the instructions given. (People v. Terry (1984), 99 Ill. 2d 508, 516, 460 N.E.2d 746; People v. Hartfield (1985), 137 Ill. App. 3d 679, 689, 484 N.E.2d 1136.) Following the allegedly improper instruction, the jury was also given the following instruction:

“The believability of a witness may be challenged by evidence that on some former occasion he made a statement that was not consistent with his testimony in this case. Evidence of this kind may be considered by you only for the purpose of deciding the weight to be given the testimony you heard from the witness in this courtroom.” (IPI Criminal 2d No. 3.11.)

Viewing IPI Criminal 2d No. 3.06-3.07 in conjunction with IPI Criminal 2d No. 3.11, we conclude that the jury received the proper instructions regarding defendant’s statements.

We also conclude that IPI Criminal 2d No. 3.06-3.07 does not direct the jury to consider defendant’s prior statements as evidence of his guilt as he alleges. Where defendant’s pretrial statement contradicted his trial testimony, the jury could not make a determination as to defendant’s credibility without considering the weight of both conflicting statements which is what the jury was instructed to do.

Even if the instruction at issue had been improper, counsel’s error would not have been serious enough to constitute ineffective representation under the second prong of the two-part test set forth in Strickland, where the remaining evidence of defendant’s guilt would have supported the same verdict. The evidence presented at trial was uncontradicted that defendant was the only one with a knife in his possession during the fight, and the victim died from a stab wound to his back.

Defendant next contends that he should be granted a new trial because the voluntary manslaughter instruction that was given to the jury in conjunction with the murder instruction erroneously stated the burden of proof regarding the offense of voluntary manslaughter. Defendant relies on People v. Reddick (1988), 123 Ill. 2d 184, 194, 526 N.E.2d 141, which found that the same instructions given in this case were invalid. In Reddick, the court held that the then-existing jury instructions for murder and voluntary manslaughter when given together incorrectly informed the jury that the State was required to prove the mitigating mental states which would reduce the murder charge to voluntary manslaughter. As a consequence, the defective instructions failed to inform the jury that the State had the burden of disproving the mitigating mental states. Reddick, 123 Ill. 2d at 193-97. See also People v. Rosa (1990), 206 Ill. App. 3d 1074, 1082, 565 N.E.2d 221; People v. Riggins (1990), 205 Ill. App. 3d 904, 914, 564 N.E.2d 122.

The State concedes that the instructions given to the jury in this case were similar to those in Reddick, but points out that because Reddick was decided after defendant’s trial was completed, he cannot rely on its ruling for a reversal of his conviction unless it can be applied retroactively. The issue of the retroactive application of Reddick has very recently been decided by the Illinois Supreme Court in People v. Shields (1991), 143 Ill. 2d 435. The Shields court referred to its prior ruling in People v. Erickson that retroactivity was triggered when two factors were present: (1) the case to which the new rule applied was not final or was pending on direct review when the rule was declared, and (2) the rule to be applied retroactively was of constitutional dimension. Shields, 143 Ill. 2d at 442, citing People v. Erikson (1987), 117 Ill. 2d 271, 513 N.E.2d 367.

As was true of the cases reviewed in Shields, the instant case was pending on direct review when Reddick was decided. Thus, the next question addressed by the court in Shields was whether the decision in Reddick was of constitutional dimension. In its discussion of this issue, the court noted that the defects in the instructions could deny a defendant his constitutional right to due process because the State, which had the burden of proof regarding the mitigating mental states that would reduce a murder charge to voluntary manslaughter, would have little incentive to do so. Furthermore, such evidence would most likely come from the defense rather than the State. Therefore, a jury that literally followed the instructions would not give effect to its finding. (Shields, 143 Ill. 2d at 443-44, citing Reddick, 123 Ill. 2d 184.) Shields also noted that because the instructions failed to inform the jury that the State had the burden of disproving the mitigating mental states, the jury might find defendant guilty of murder even if it found that he was provoked by a sudden intense passion or unreasonably believed that his actions were justified. The court concluded that because the erroneous instructions could deprive a defendant of his due process right to a fair trial, the holding in Reddick was of constitutional dimension and should be applied retroactively in those cases pending on direct review at the time that Reddick was decided. Shields, 143 Ill. 2d at 445.

Although this case was also pending on direct review when Reddick was decided, a retroactive application of the decision does not automatically require that defendant be granted a new trial. Generally, an error in jury instructions is waived if defendant fails to object, offer alternative instructions at trial or raise the issue in a post-trial motion. (Reddick, 123 Ill. 2d at 198, citing People v. Thurman (1984), 104 Ill. 2d 326, 472 N.E.2d 414.) However, the waiver rule is not absolute. “Substantial defects in jury instructions in criminal cases may be noticed despite failure to make a timely objection thereto if the interests of justice require.” (Thurman, 104 Ill. 2d at 329; 134 Ill. 2d R. 451(c).) The plain error doctrine is applied where the evidence of defendant’s guilt is closely balanced or where the error denied defendant a fair trial. Shields, 143 Ill. 2d at 446; Thurman, 104 Ill. 2d at 330.

In this case, the voluntary manslaughter instructions tendered to the jury were based on defendant’s unreasonable belief that his murder of the victim was justified. At the trial, evidence was presented that Gloria Winslow, one of the passengers in defendant’s vehiele on the night of the incident, had a former relationship with the victim. Several months after Winslow terminated their relationship, the victim had threatened to kill her and had thrown acid in her brother’s face. On the night of the incident, the victim met Winslow as she was leaving work and tried to resume their relationship, but she refused. Winslow then left in defendant’s vehicle. Although defendant testified that he tried to elude the victim, Wynn and the victim followed defendant’s vehicle until it stopped near Tanya Oates’ house. The victim then approached defendant’s car and started hitting the hood of the vehicle. There was also testimony that the victim tried to pull Winslow out of defendant’s car and that he challenged defendant to a fight. According to several witnesses, the fight that initially started was between the victim and Charles Sutton. Sutton testified that the victim tried to pull him away from defendant’s vehicle, and the two men started fighting. Sutton also stated that during the struggle the victim tried to choke him, and that Sutton fell to the ground. Defendant testified that he tried to pull the victim away from Sutton, and he hit the victim several times with his hand in which he was holding a knife. Ronald Wynn, the driver of the vehicle in which the victim was riding, testified that he and the victim had been drinking some time before the incident. This fact was corroborated by the medical examiner’s testimony.

However, there was also evidence that defendant was the only one with a weapon, he sustained no injuries and that the fatal wound was to the victim’s back. After receiving the improper instructions on murder and voluntary manslaughter, the jury returned a verdict of guilty on both offenses. When the jury was instructed to deliberate further and return a verdict on only one of these two offenses, it found defendant guilty of murder.

Based on the above facts, we conclude that the evidence was closely balanced and that the use of the improper jury instructions constituted plain error. Although the victim had no weapon and defendant sustained no injuries, there was sufficient evidence for a properly instructed jury to conclude that defendant could have believed, however unreasonably, that the use of force was necessary to protect himself. Furthermore, because the jury initially returned verdicts on voluntary manslaughter and murder, there is a reasonable possibility that the jury found the evidence sufficient for a verdict of voluntary manslaughter or, at the very least, that it was confused by the instructions. We thus conclude that there was reasonable doubt as to the effect of the invalid instructions on the jury’s verdict. Therefore, defendant’s conviction is reversed, and the cause is remanded for a new trial.

Pursuant to our discussion below, we also conclude that a rational juror could find that defendant did not act under the belief, reasonable or unreasonable, that his actions were justified. Therefore, while defendant is entitled to a new trial, he is not presently entitled to an acquittal. Reddick, 123 Ill. 2d at 201.

Defendant further contends that the jury was improperly instructed on the charge of armed violence because the instructions given to the jury broadened the charge against him. The jury was given IPI Criminal 2d Nos. 11.19 and 11.20. IPI Criminal 2d No. 11.19 states:

“A person commits armed violence when he commits the offense of aggravated battery while armed with a dangerous weapon.
A person is considered armed with a dangerous weapon when he carries on or about his person or is otherwise armed with a knife.”

IPI Criminal 2d No. 11.20 states:

“To sustain a charge of armed violence, the State must prove the following propositions:
First: That defendant committed the offense of aggravated battery; and
Second'. That when he committed the offense of aggravated battery he was armed with a dangerous weapon.
If you find from your consideration of all of the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

Defendant appears to argue that the instructions were improper because they did not specify that the offense was committed against Ronald Wynn rather than the victim. Thus he was prejudiced by the fact that the charges against him were broadened in that the jury was permitted to convict defendant of an offense not charged.

In order to preserve an issue for appeal, a defendant must both make a contemporaneous objection and include it in his post-trial motions. (People v. Young (1989), 128 Ill. 2d 1, 39, 538 N.E.2d 453; People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) In this case, defense counsel stated that he had no objection to giving the above instructions to the jury. In his motion for a new trial, defense counsel made only a general statement that the judge erred in giving instructions on behalf of the State but failed to specify the error. Defense counsel also failed to tender instructions regarding the armed violence charge without the errors alleged. Therefore, defendant has not properly preserved this issue for review. See People v. Huckstead (1982), 91 Ill. 2d 536, 543, 440 N.E.2d 1248; People v. Tannenbaum (1980), 82 Ill. 2d 177, 180, 415 N.E.2d 1027.

Assuming arguendo that defendant did not waive this issue, the instructions quoted above were not improper when viewed in conjunction with the other instructions given, which when viewed together stated the applicable law. (Terry, 99 Ill. 2d at 516; People v. Duffie (1990), 193 Ill. App. 3d 737, 742, 550 N.E.2d 691.) In addition to IPI Criminal 2d Nos. 11.19 and 11.20, the jury was also given IPI Criminal 2d No. 11.10, which stated:

“To sustain the charge of aggravated battery, the State must prove the following propositions:
First: That the Defendant.knowingly or intentionally, without legal justification, caused bodily harm to Ronald Wynn; and Second: That Defendant used a deadly weapon; or Second: That the Defendant committed the battery upon a person who was on or about a public way.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, you should find the Defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the Defendant not guilty.”

Thus, the jury was instructed that the State must prove beyond a reasonable doubt that defendant caused bodily harm to Ronald Wynn by use of a deadly weapon. Reading IPI Criminal 2d Nos. 11.19 and 11.20 together with 11.10, the jury was properly instructed that the armed violence charge pertained to the aggravated battery against Ronald Wynn.

Defendant next contends that the State failed to prove that he was guilty of murder beyond a reasonable doubt. When an appeals court reviews the sufficiency of evidence, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) Young, 128 Ill. 2d at 49, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

Defendant claims that he killed the victim in self-defense. When a defendant charged with murder raises this affirmative defense, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. Defendant argues that the State did not meet its burden of proof regarding this issue. However, the use of force in self-defense is justified only where force is threatened against the person, the person threatened is not the aggressor, the danger of harm is imminent, the force threatened is unlawful and the person threatened reasonably believes that a danger exists and that the use of force is necessary. (People v. Greene (1987), 160 Ill. App. 3d 1089, 1095-96, 513 N.E.2d 1092.) The issue of self-defense is for the trier of fact, and a decision as to whether a defendant acted in self-defense will not be disturbed on review unless it is so improbable or unsatisfactory that it raises a reasonable doubt of defendant’s guilt. Greene, 160 Ill. App. 3d at 1096; People v. Balfour (1986), 148 Ill. App. 3d 215, 222, 498 N.E.2d 547.

In this case, there are several facts which support the jury’s rejection of defendant’s self-defense claim. Ronald Wynn testified that the victim started fighting with Charles Sutton, a male passenger in defendant’s car, and that defendant then joined Sutton in fighting with the victim. At one point, defendant pulled the victim off Sutton, and the two men began kicking the victim in his side and head. Wynn then saw defendant stab the victim. Sutton also testified that the victim initially started fighting with him and that when defendant joined the fight, both Sutton and defendant beat the victim. The day after the incident, defendant gave a statement to the police that he held the victim with one hand and stabbed him. At the trial, defendant testified that he “unintentionally” stabbed someone. Thus, the evidence established that there was initially a fight between Sutton and the victim. When defendant joined the fight there was no evidence that his use of deadly force was necessary to protect himself or Sutton. There was even less justification for defendant’s stabbing of the victim where the victim had no weapon and was already being beaten and kicked by both men. Other evidence which contradicted defendant’s self-defense argument was his testimony that he did not remember stabbing the victim as well as the fact that the victim was stabbed in the back.

Defendant cites People v. Shipp (1977), 52 Ill. App. 3d 470, 367 N.E.2d 966, in support of the proposition that it is a defendant’s perception of danger and not the actual peril which is dispositive. However, the court in Shipp held that the perception of danger had to be one that was reasonable. Shipp, 52 Ill. App. 3d at 477.

In Shipp, the decedent had a long-standing history of violent behavior toward the defendant including attempted murder and numerous occasions of brutal assaults. Immediately prior to the shooting, the decedent had threatened to kill the defendant, and on the night of the incident, he forced his way into a room where the defendant was located, placed his hand in his coat pocket and started walking toward her. He also failed to respond to defendant’s demands that he remove his hand from his pocket and that he not come any any closer. It was at this point that the defendant shot the decedent in self-defense. (Shipp, 52 Ill. App. 3d at 476-77.) The court ruled that even though no weapon was found on the decedent after the shooting, it was reasonable that the defendant thought he had one in his possession. The Shipp court further concluded that the defendant’s use of force was justified where the decedent was much larger and stronger than defendant and he had been able to physically harm her on other occasions without a weapon. (Shipp, 52 Ill. App. 3d at 476.) In this case defendant had experienced no prior violence or threats from the victim, and on the night of the incident there was no evidence that the ■victim presented the kind of threat to defendant that warranted the use of deadly force. Finally, there was no evidence that the victim was superior in size and strength to defendant. Thus, Shipp is factually dissimilar and lends no support to defendant’s argument.

Defendant’s final contention is that he is entitled to a new trial because the prosecutor made comments during rebuttal closing argument which were an incorrect statement of the law and could have misled the jury. The comment which defendant claims was improper stated the following:

“Read that self-defense instruction, ladies and gentlemen. It’s very important. You cannot kill an unarmed man. He then took the law into his own hands.”

Defendant claims that the comment misstated the law because a victim is not required to have a weapon to justify defendant’s use of deadly force in self-defense.

Before addressing the merits of this issue, we note that defendant has waived review of this issue. Although defendant objected to the statement during closing argument, he failed to address the allegedly improper statements with sufficient specificity in his post-trial motion to preserve the issue for review. “A reference in a post-trial motion to ‘prejudicial’ or ’erroneous’ statements in closing argument, without factual detail, is not enough to preserve the issue for review.” People v. Phillips (1989), 186 Ill. App. 3d 668, 682, 542 N.E.2d 814.

Even if defendant has not waived this issue, we find no merit in his contention that the prosecutor’s comment constituted reversible error. A prosecutor is allowed wide latitude in closing argument. Furthermore, a conviction will not be disturbed on review unless the remarks constituted a material factor in defendant’s conviction thereby resulting in substantial prejudice. (People v. Wilted, (1979), 79 Ill. App. 3d 156, 165, 398 N.E.2d 68; People v. Franklin (1976), 42 Ill. App. 3d 408, 415, 355 N.E.2d 634.) The test employed to determine whether the prosecutor’s comments constituted prejudicial error is whether the jury would have reached a contrary verdict had the comments not been made. Franklin, 42 Ill. App. 3d at 415.

In this case, the prosecutor’s reference to the self-defense instruction and statement that “[y]ou cannot kill an unarmed man” were not material factors in defendant’s conviction. As discussed in the previous issue, the evidence did not lend any support to defendant’s theory of self-defense. Therefore, the jury would have reached the same verdict regarding the issue of self-defense even if the allegedly improper comment had not been made. In addition, the trial court instructed the jury on the purpose of closing argument as well as the law regarding self-defense. It is presumed on appeal that the jury followed the trial court’s instructions. (People v. Jackson (1986), 145 Ill. App. 3d 626, 646, 495 N.E.2d 1207.) We thus conclude that even if the prosecutor’s statements in rebuttal closing argument were improper, any resulting error was harmless due to the weight of the evidence in support of the jury’s verdict.

For the aforementioned reasons, the judgment of the circuit court is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

EGAN and LaPORTA, JJ., concur.