author: JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD LIBMAN, Defendant-Appellant.
    First District (5th Division)
    No. 1—92—0110
    Opinion filed June 30, 1993.

      Tuite, Stratton & Menaker, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Linda Woloshin, and Marci L. Jackson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

Ronald Libman was indicted for the offenses of solicitation to commit murder for hire, conspiracy to commit murder, attempted murder, aggravated battery, residential burglary and home invasion. After a jury trial by the circuit court of Cook County, Illinois, Lib-man was convicted of all counts and was sentenced to concurrent terms of 24, 15, 10 and 7 years in the Illinois Department of Corrections. A timely notice of appeal was filed.

In requesting that this court reverse his conviction, defendant makes four arguments: (1) the evidence was insufficient to sustain a conviction; (2) the trial court improperly excluded testimony of a defense witness which, defendant claims, would have contradicted the testimony of a prosecution witness; (3) the trial court improperly excluded the substantive aspects of letters written by the defendant, limiting their use to handwriting comparison only; and (4) the sentencing structure establishing a 20-year minimum for a person who solicits another to commit the offense of first-degree murder and only provides for a three- to seven-year sentence for the person who accepts the solicitation and attempts to carry it out is unconstitutional.

Defendant began working for Rite-Way Messenger Service in 1988. In February 1990, he was executive assistant to Rich Weisenmayer, the president and one of . three founding partners of the company. During the time period of September 1989 to February 1990, defendant complained repeatedly to John Mackrell, a former Rite-Way employee, and to his wife, Marlene Libman, about Rich Weisenmayer. Defendant told his wife that he did not like Weisenmayer and that “it would be better off if he [Weisenmayer] was out of the picture, and he hoped that [Weisenmayer] would die from his alcoholism.” In mid-December 1989, defendant and his wife had a conversation in their car in which defendant told her that he wanted to hire Bill Bailey, an old Marine buddy, to “do away with Rich [Weisenmayer] *** [defendant] wanted to kill [Weisenmayer].” Defendant told Ms. Libman that if “Rich Weisenmayer was killed *** [defendant’s] father would obtain Rite-Way and [defendant] could do better for himself *** [and defendant] could drive Cadillacs and have nice jewelry and stuff.”

Mackrell testified that defendant discussed with Mackrell his theory that Rite-Way was going downhill because of Weisenmayer’s drinking problems. Defendant told Mackrell that he wanted to get rid of Weisenmayer legally — by having Weisenmayer declared incompetent — but defendant thought that would take too long. Defendant suggested that Mackrell murder Weisenmayer. Defendant agreed to give Mackrell $500, arrange a change of identification for him, and get him a job at Rite-Way paying $500 per week in return for the murder of Weisenmayer. Defendant told Mackrell that once Weisenmayer was out of the way, he would take over Weisenmayer’s responsibilities and “have the run of the company.” Defendant and Mackrell agreed that a break-in burglary would be the method used to carry out the murder of Weisenmayer. They decided that the best time for the murder would be late at night. Because Mackrell had never been to Weisenmayer’s trailer before, and because the trailer park consisted of unmarked streets, defendant drew maps of the trailer park and the inside layout of Weisenmayer’s mobile home so Mackrell could find it.

In the early morning hours of February 20, 1990, Mackrell took the “el” train to O’Hare airport in Chicago, Illinois, and then took a cab to Weisenmayer’s trailer park. When he located the trailer, he looked inside a window and observed Weisenmayer sitting on a sofa. It was between 5:30 and 6 a.m. at this point and Weisenmayer had just awakened. After deciding that prying the door open would make too much noise, Mackrell decided just to knock. Weisenmayer testified that he heard the knock and asked, “Who’s there?” He thought the person said, “I’m here for Brian,” his grandson, and so he opened the door. Mackrell entered the mobile home and proceeded to hit Weisenmayer over the head with a pry bar. Weisenmayer knew who John Mackrell was due to Mackrell’s former employment at Rite-Way. Mackrell told Weisenmayer that he was there “to kill you [Mr. Weisenmayer] for Ron. Ron wants me to kill you.” Mackrell continued to hit Weisenmayer over the head with the crowbar. Eventually, Weisenmayer offered Mackrell $10,000 to stop hitting him and Mackrell accepted the offer. Mackrell and Weisenmayer agreed that when the bank opened at 9 a.m., Weisenmayer would go there and write Mackrell a check for the $10,000. Thereafter, Weisenmayer would drop Mackrell at the airport.

While they were waiting for the bank to open, Mackrell told Weisenmayer that defendant thought Weisenmayer was doing a terrible job running the company. Mackrell stated that defendant felt he could run Rite-Way better than Weisenmayer and that is why he wanted Weisenmayer out of the way. Mackrell told Weisenmayer that defendant was to give Mackrell a job at the company in exchange for killing Weisenmayer. Mackrell telephoned defendant from Weisenmayer’s home during this discussion. Mackrell told defendant that Weisenmayer offered him $10,000, which was “better than the other offer.” The record does not reveal what defendant said in response to Mackrell’s statement but it is apparent, however, that defendant did not contact the police after this conversation. Mackrell was willing to take Weisenmayer to the hospital as long as he agreed to fabricate a story as to how Weisenmayer received his injuries. They determined that they would tell hospital personnel or police that Mackrell was a friend of defendant’s and that he had gone to Weisenmayer’s to do some plumbing work on the kitchen sink. They would say that Mackrell found Weisenmayer in his present condition when Mackrell arrived at the mobile home and that some unknown person had broken in and was responsible for Weisenmayer’s injuries. On the way out of Weisenmayer’s house, Mackrell took the $23 or $33 that was in Weisenmayer’s wallet “to make it look like somebody came in and robbed him.”

Mackrell drove Weisenmayer to the hospital in Weisenmayer’s car from which they again called defendant. Mackrell told defendant not to tell anyone what happened and informed defendant about the plan he and Weisenayer had devised. In the emergency room, Weisenmayer was treated for his injuries. The police came to the hospital and questioned Weisenmayer and Mackrell about Weisenmayer’s injuries. Initially, both of them related the fabricated version of events. The police then discovered that there was a warrant out for Mackrell’s arrest by the Marine Corps and, thus, Mackrell was taken into custody. Later that morning, Detective Prandini spoke to Weisenmayer again and informed him that Mackrell had already told them the real story. At this time, Mr. Weisenmayer told the police the truth about the events of the morning. Meanwhile, at the police station, Mackrell, too, eventually confessed the truth about Weisenmayer’s injuries.

Marlene Libman spoke to police about the incident about a week after it happened. In early March 1990, while Mackrell remained in jail, he had his girl friend retrieve from his apartment and turn over to police the maps of the trailer park and Weisenmayer’s home that defendant had drawn. On March 12, 1991, Weisenmayer turned over to police documents from Rite-Way that defendant had written up as samples of defendant’s handwriting. Next, a handwriting expert testified that within a reasonable degree of scientific certainty, defendant probably drew the maps turned over to police by Mackrell’s girl friend.

Defendant was arrested March 16, 1990, and indicted in April 1990, based on the events described above. In April 1991, Marlene provided Detective Prandini with letters defendant had written to her, also for use as handwriting samples. All of these letters were written after defendant had been indicted for soliciting the murder of Weisenmayer. Subsequently, defendant was brought to trial.

Weisenmayer, Mackrell, and Marlene Libman all testified on behalf of the State. Marlene testified to the conversations she had with defendant wherein he told her that he wanted Weisenmayer killed.

John Mackrell, having pled guilty to the aggravated battery of Weisenmayer and having received a two-year prison sentence, recounted defendant’s and his own role in the incident. He further testified that he was not mad at anyone for firing him from Rite-Way.

Detective Prandini testified to his knowledge of the events. He stated that in his initial interview of Mackrell, when Mackrell gave the false story, Mackrell answered the questions slowly and “appeared to be thinking out the answers before he was very hesitant to answer anything directly.” The second time Detective Prandini interviewed Mackrell, when Mackrell told the truth, Mackrell’s answers were “very forward, he gave the story, did not appear rehearsed. He just spilled his guts about the whole incident.”

Defendant’s first argument on appeal is that the evidence was insufficient to sustain a conviction. The general rule is that a conviction will be sustained where, viewed in the light most favorable to the prosecution, the record evidence is such that a rational trier of fact could have found guilt beyond a reasonable doubt. (See Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.) This rule gives due consideration to the fact that the court and jury saw and heard the evidence and recognizes that it is the duty of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. People v. Holmes (1990), 141 Ill. 2d 204, 565 N.E.2d 950.

A thorough review of the record in the light most favorable to the prosecution persuades us that a rational fact finder could have found defendant guilty of solicitation to commit murder for hire beyond a reasonable doubt.

Defendant’s wife testified that defendant wanted to hire someone to kill the victim. The accomplice testified that defendant hired him to kill the victim and that defendant drew maps to and of the victim’s home for the accomplice to use in carrying out their plan. In addition, evidence of defendant’s motive was established.

Defendant alludes to the reliability concerns that arise when a conviction is based “mainly on the testimony of an accomplice.” We are skeptical of uncorroborated accomplice testimony. Such testimony should be subject to careful scrutiny, “acted upon with great caution” and have the “absolute conviction of the truth.” (People v. Wilson (1977), 66 Ill. 2d 346, 349, 362 N.E.2d 291.) However, even the uncorroborated testimony of an accomplice witness can suffice to sustain a criminal conviction where it convinces the jury of the defendant’s guilt beyond a reasonable doubt. The State correctly notes that the weaknesses of accomplice testimony affect questions of the weight of the evidence and the credibility of the witness. And those matters are peculiarly within the province of the trier of fact. (Holmes, 141 Ill. 2d at 242, 565 N.E.2d at 967.) Moreover, this conviction was based on material corroboration of the testimony of an accomplice, which is entitled to great weight. (Holmes, 141 Ill. 2d at 242, 505 N.E.2d at 967.) The testimony of several other witnesses as- well as physical evidence corroborated the accomplice testimony.

We therefore conclude that the record in the case at bar upholds the reliability of Mackrell’s accomplice testimony. The jury was fully apprised of all of the charges against Mackrell and the agreement he made with the assistant State’s Attorneys to testify truthfully in exchange for a lenient sentence. The jury considered these factors along with the substance of Mackrell’s testimony in light of the rest of the evidence presented at trial. Defendant’s wife, the victim, and defendant’s own hand, in drawing maps to aid his accomplice, provided corroboration of defendant’s guilt. The jury apparently gave this evidence great weight. We therefore conclude that the questions involving the credibility of the accomplice witness are insufficient to aid defendant’s cause. We are unable to say that the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt as to defendant’s guilt.

Testimony of the state of mind of the principle prosecution witness inconsistent with his trial testimony is admissible to show that the witness, as well as defendant, had a motive to harm the victim, Weisenmayer. However, the question, “You never badmouthed Rich Weisenmayer to Gary Shapiro [sic] Leiberman?” does not clearly establish that purpose. The key to saving for review error in excluding evidence is the offer of proof. The offer of proof discloses the nature of offered evidence and thereby enables the reviewing court to determine whether the exclusion was erroneous and harmful. (Miller v. Chicago Transit Authority (1966), 78 Ill. App. 2d 375, 223 N.E.2d 323.) When the objection to this question was sustained, counsel made no offer of proof to clarify for the record his purpose in asking the question. Since the purpose of the evidence is not clear, a detailed and specific offer of proof is required. (People v. Jackson (1989), 180 Ill. App. 3d 78, 90-91, 535 N.E.2d 1086; Volvo of America Corp. v. Gibson (1980), 83 Ill. App. 3d 487, 404 N.E.2d 406.) We will not speculate about counsel’s motivation in the face of a silent record and will view the failure to make an offer of proof as a waiver of this point on appeal. It is also evident that even if the evidence had been admitted at trial it would not have affected the jury verdict in this case.

The third issue defendant raises on appeal is whether the trial court properly limited the use of letters written by Libman to handwriting comparison and excluded their substantive aspects. It is important to note that evidence is relevant where it “tends to make the questions of guilt more or less probable.” (People v. Ward (1984), 101 Ill. 2d 443, 455, 463 N.E.2d 696, 702.) Moreover, “when evidence is competent only for one purpose, the other party is entitled by instructions to have it limited to the purpose for which it is proper.” (People v. Edwards (1991), 144 Ill. 2d 108, 168, 579 N.E.2d 336, 361.) Furthermore, “the admission of evidence is within the sound discretion of the trial court, and its ruling should not be reversed absent a clear showing of abuse of that discretion.” (Ward, 101 Ill. 2d at 456, 463 N.E.2d at 702.) Defendant claims that the letters written to Marlene Libman should have been introduced to impeach Marlene Libman’s credibility by showing that defendant “was a good and loving husband and cared for both his children,” in spite of her testimony to the contrary. The State maintains that the substantive aspects of the letters are irrelevant in that they do not make the question of the defendant’s guilt more or less probable. The substance of the letters consisted of defendant wishing Marlene and the boys well. Defendant’s feelings about his family simply are not probative of any material element of the crimes for which he was convicted.

In support of his contention that the trial court erred in not allowing the defense to introduce substantive aspects of the letters, defendant cites two cases: People v. Titone (1986), 115 Ill. 2d 413, 505 N.E.2d 300, and People v. Eichelberger (1989), 189 Ill. App. 3d 1020, 546 N.E.2d 274. Eichelberger held that prior consistent out-of-court statements are admissible to refute a charge of recent fabrication or motive to testify falsely, provided that the statements were made when a motive to fabricate did not exist or the effect of the statements could not have been foreseen by the witness. The touchstone for deciding this issue is the presence of a motive to fabricate. In Eichelberger the witness did not have a motive to fabricate. There the jury verdict found defendant guilty of three counts of possession of 15 or more grams of cocaine. The main witness for the prosecution at trial, William Cofel, testified as to his involvement with the defendant in purchasing, selling, and distributing cocaine. During cross-examination, defendant’s counsel sought to establish that Cofel possessed a motive to testify falsely concerning the defendant. After cross-examination, the State elicited testimony from Cofel on rebuttal that he had previously told his lawyer that he had been involved with the defendant in buying and selling cocaine. The State sought to introduce this testimony to refute the suggestion that the witness had a motive to testify falsely at the time of the trial. When Cofel told his lawyer of his involvement with the defendant in the buying and selling of cocaine, the focus of law enforcement was not upon him to the extent that he had a motive to fabricate at the time of the making of the prior consistent statements.

Similarly, Titone held that prior consistent statements were properly admitted to rebut an inference that a witness’ testimony was of recent fabrication. The inference there was that the prosecution witness’ trial testimony had been a fabrication. The State introduced the witness’ original statement to police in response to defendant’s cross-examination. The State contended that the witness had no reason to fabricate her statement to the police because she was not offered any deal or threatened by the police in order to elicit the statement. The court affirmed the admission of the prior consistent statements.

In the case at bar, defendant’s reliance on Eichelberger and Titone is misplaced. When defendant testified that he thought he was a caring father and husband, the State did not suggest that the witness had a motive to testify falsely or that the testimony was recently fabricated. There was no incentive to do so because defendant’s feelings about his family were not material to the State’s case. Even if the State did make this suggestion, defendant could not prove up his testimony by his “prior consistent statements” that he was a caring father through the letters he wrote after he was indicted because at the time the letters were written a motive to fabricate was present. Defendant knew that Marlene had given testimony, against him in the grand jury hearing and was likely to testify at trial against him. There was a motive to fabricate at the time the statements were made, and the statements could not properly have been admitted.

Even if the trial court should have admitted the letters for their substance, any such error was harmless. The admission of the letters for their substance would not have changed the outcome of his trial.

Defendant contends that the sentencing structure establishing a 20-year minimum for a person who solicits another to commit the offense of first-degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 8 — 1:2 (now 720 ILCS 5/8 — 1.2 (West 1992))), and only provides for a three- to seven-year sentence for the person who accepts the solicitation and attempts to carry it out (Ill. Rev. Stat. 1989, ch. 38, par. 8 — 2(c) (now 720 ILCS 5/8 — 2 (West 1992))), is unconstitutional. Defendant correctly observes that article I, section 11, of the Illinois State Constitution (Ill. Const. 1970, art. I, §11) provides that all penalties shall be determined according to the seriousness of the offense and with an eye toward rehabilitation of the offender. Nonetheless this court is reluctant to invalidate penalties prescribed by the legislature because it recognizes that it is the legislature which has been empowered to declare and define conduct constituting a crime and to determine the nature and extent of punishment for it. (People v. Steppan (1985), 105 Ill. 2d 310, 473 N.E.2d 1300.) Defendant suggests that one who accepts a solicitation to commit murder is more culpable than one who solicits a murder for hire. However, this determination is one for the legislature to make. It is a function of the legislature to gauge the seriousness of various offenses.

Defendant’s contention that the sentencing structure violates equal protection of the laws is one that need not detain us long. To succeed, defendant must show that the sentencing structure treats those within the same class dissimilarly. (People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029.) Here, since a defendant convicted of aggravated battery is not similarly situated to one convicted of conspiracy, no equal protection violation can be incurred.

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

Affirmed.

GORDON, P.J., and COUSINS, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STUART I. SMITH, Defendant-Appellant.
    Second District
    No. 2—92—0017
    Opinion filed August 18, 1993.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    David R. Akemann, State’s Attorney, of Geneva (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Stuart I. Smith, was convicted after a bench trial in the circuit court of Kane County of one count of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1 (now 720 ILCS 5/19 — 1 (West 1992))). He was sentenced to an extended term of 10 years’ imprisonment, and he thereafter filed a timely appeal. In this court, defendant argues (1) that the trial judge erred to defendant’s prejudice by denying him the right to present closing argument at trial; (2) that his appointed counsel abdicated her responsibility at trial when she complied with defendant’s request to refrain from cross-examining three State witnesses; (3) that the trial judge improperly limited the role of standby counsel in post-trial proceedings; and (4) that the judge erred to defendant’s prejudice when he did not obtain a proper waiver of defendant’s right to counsel before defendant proceeded pro se at sentencing.

As defendant does not challenge the sufficiency of the evidence to convict him, we will not recite it in detail. In short, defendant was arrested in the early morning hours of October 28, 1990, near the scene of a break-in at a gas station in Aurora, Illinois. A side window of the gas station had been smashed and cartons of cigarettes taken. When defendant’s vehicle was pulled over, a large garbage can filled with cartons of cigarettes was lying on its side in the backseat, and rubber gloves were lying on the front seat. Defendant subsequently confessed to smashing the gas station’s window and absconding with a garbage can full of cigarettes which he planned to sell for $8 to $10 per carton to support himself.and the drug habit he incurred in Viet Nam.

Defendant was originally represented at trial by the public defender’s office, but they came to a parting of the ways after defendant filed a complaint with the Attorney Registration and Disciplinary Commission. A private attorney (defense counsel) was then appointed to represent defendant at trial.

Defendant’s trial began on May 17, 1991. Because one State witness was then unavailable, the parties agreed that the trial would be completed on June 28. Before the trial got started, defense counsel told the court that defendant had asked her to cross-examine State witnesses, but that defendant wanted to present his defense himself. Following a recess after the first three State witnesses had testified, the following discussion took place:

“DEFENSE COUNSEL: Judge, Mr. Smith has a statement he’d like to make to the Court before we resume.
THE COURT: No, I don’t want to hear any statement.
DEFENSE COUNSEL: Judge, Mr. Smith has told me that he would like me not to cross-examine any more witnesses.
THE COURT: Okay, that’s between you and him.
DEFENSE COUNSEL: I wanted him to say it on the record.”

Defense counsel cross-examined the next witness, the owner of the gas station, on defendant’s request, but did not cross-examine the remaining three witnesses who testified that day, all of whom were Aurora police officers.

When the trial resumed on June 28, defendant informed the court that he wanted defense counsel to assume standby status so he could handle his case largely by himself. He engaged in a very abbreviated cross-examination of the State’s last witness, another Aurora police officer. The State then rested and defendant moved for a directed finding, claiming that the State had not proven its case because there was no evidence placing him inside the gas station. Defendant argued that the proof, at best, showed theft by possession. The court denied the motion and then denied defendant’s motion to quash the indictment after extended argument by defendant.

The court asked defendant if he had any evidence to present. The defendant replied in the negative and rested. The court then announced that there would be a finding of guilty. After a short discussion about post-trial motions, the trial judge asked defendant how he would be utilizing defense counsel. Defendant responded that he would like her assistance “here in court and possibly informally in my motion for arrest of judgment.” Defense counsel then asked about her role in the upcoming proceedings:

“DEFENSE COUNSEL: And my role is?
THE COURT: Well, I’m going to come to that in a second. Mr. Smith, you can either have [defense counsel] represent you or you can represent yourself. If you want her here in court to assist you, that’s fine. But that’s the only place that she’s going to be is in court to assist you if you choose to represent yourself.
THE DEFENDANT: Your Honor, how about — suppose I formulate this motion and I have some questions that I would like to ask her. You mean to tell me the only time I can ask her is right here in court and I can’t use the benefit of her expertise?
THE COURT: Well, if you want to represent yourself with her only here to advise you, then that’s correct. If you want her to represent you, well, that’s a different story. Now, she wants to know what she’s supposed to do. So do I. I was under the impression when we started this morning that you wanted to represent yourself.
THE DEFENDANT: I’m going to represent myself.
* * *
THE COURT: You want her back in court on [the date set for sentencing] to advise you if you need any advice?
THE DEFENDANT: Yes, sir, if its okay with her.
THE COURT: Okay, [defense counsel], as far as I’m concerned you just be here [for sentencing] to advise him if he needs you. Other than that you have no connection at all with this case based on Mr. Smith’s motion he made.”

Defense counsel appeared with defendant on the date originally set for sentencing, September 13, 1991. She wrote a motion for new trial with defendant at the start of the hearing. Defendant argued the motion, and it was denied. The State called a witness in aggravation and argued for an extended sentence. Defendant did not argue in response. The case was continued until October 23 for a TASC evaluation of defendant.

On October 23, defense counsel argued that the court should order drug treatment for defendant. The TASC evaluator was not present and the case was continued until the court could hear from TASC.

On October 29, a TASC evaluator testified that defendant was unacceptable for TASC. Defense counsel appeared with defendant. The court ordered a psychological evaluation of defendant. Defendant asked defense counsel to file a petition which alleged, inter alia, that defense counsel was ineffective. Defense counsel sought to withdraw, but defendant still desired her assistance.

Defendant and defense counsel appeared before the court on January 2, 1992. Defendant had refused to meet with a psychologist and requested that he be sentenced so he could start post-conviction proceedings. When asked whether he wanted defense counsel to stay, defendant replied, “No, I don’t want her in the courtroom with me. I don’t want her no where around me.” Defense counsel was then excused and defendant was given an extended sentence of 10 years’ imprisonment.

CLOSING ARGUMENT

Defendant’s first claim is that he was prejudiced and denied his right to defend against the charge when the trial judge declared him guilty after he rested his case, without affording him an opportunity to present closing argument. The State replies that defendant was not denied an opportunity to defend against the charge because the finding of guilt occurred only moments after defendant presented pro se argument on his motion for a directed finding and immediately after defendant rested without offering any evidence on his behalf. The State claims that defendant probably saw no reason to repeat the argument he had just made, and that if defendant had wanted to present closing argument he would have asked to do so. Finally, the State argues that defendant waived this issue by failing to object at trial or include this issue in his post-trial motion.

Defendant has not waived the issue. The right to present closing argument at trial is of constitutional magnitude, regardless of whether the trial is before a judge or jury or whether the defendant is represented by counsel or represents himself. (Herring v. New York (1975), 422 U.S. 853, 45 L. Ed. 2d 593, 95 S. Ct. 2550.) We may address an alleged defect that affects substantial rights under an exception to the general rule that issues not brought to the attention of the trial court are waived for purposes of appeal. 134 Ill. 2d R. 615(a); People v. Moman (1990), 201 Ill. App. 3d 293, 309.

Defendant cites Herring in support of his claim. In that case, the United States Supreme Court found unconstitutional a New York State statute which allowed judges presiding over criminal bench trials to deny closing argument before the entry of judgment. (Herring, 422 U.S. 853, 45 L. Ed. 2d 593, 95 S. Ct. 2550.) Herring is distinguishable, in that Herring concerned a blanket legislative finding that closing arguments are extraneous.

Cases considering the question of denial of the right to present closing argument have discussed the question in terms of the right to appear and defend (People v. McMullen (1921), 300 Ill. 383, 389), the rights to due process and a fair trial (People v. Diaz (1971), 1 Ill. App. 3d 988, 992), and the right to effective assistance of counsel (People v. Smith (1990), 205 Ill. App. 3d 153, 156-57). However, in all these cases, prejudice to the defendant was apparent. In McMullen, the trial court limited the defense attorney to 35 minutes for closing argument in a long trial, which was insufficient for the attorney to discuss the facts and the law of the case. (McMullen, 300 Ill. at 389.) In Diaz, the defendants were pronounced guilty by the trial judge three times before he had heard all the evidence and without closing argument. (Diaz, 1 Ill. App. 3d at 991-93.) In Smith, the trial court stopped the defense attorney during closing argument and refused to allow her to continue, denying the defendant his right to argue his case. Smith, 205 Ill. App. 3d at 156.

Further, the above cases all spoke of the importance of an opportunity for the defendant to argue his case, not that the opportunity be given exactly at the time for closing argument. (See McMullen, 300 Ill. at 389; Diaz, 1 Ill. App. 3d at 992; Smith, 205 Ill. App. 3d at 156-57.) In this case, defendant was not denied an opportunity to argue his case to the court, he was simply not given a second opportunity to do so.

A number of factors convince us that no prejudice occurred to defendant. First, defendant argued a motion for a directed finding only moments before the judge found defendant guilty without closing argument. Although defendant’s argument on his motion was short, it attacked the State’s case, which itself was concise and straightforward. Second, defendant presented no evidence on his behalf, so that a closing argument would have necessarily been another attack on the State’s case as it stood when defendant moved for a directed finding. Defendant was not denied the right to summarize or champion, for example, an alternate version of events, a justification or an alibi defense. Third, a review of the trial transcript shows that defendant was well acquainted with the rudiments of trial procedure, was articulate in his arguments, and was not reticent to express himself or demand to be heard, even when the judge was attempting to have defendant curtail his arguments.

Thus, we believe that defendant, who knew enough to move for and argue a motion for directed finding at the close of the State’s case, would have asked to present closing argument if he had wanted to argue again the defects in the State’s case. We hold that, although the trial judge erred by failing to make a record that defendant knew about and expressly waived his right to present closing argument, the error was harmless under the facts of this case.

CROSS-EXAMINATION

Defendant argues that he was denied his constitutional right to effective assistance of counsel when his attorney abided by defendant’s request that she not cross-examine three State witnesses. Defendant claims that as long as counsel was not acting in a standby capacity, she had a duty to subject the State’s case to meaningful adversarial testing, not simply follow defendant’s wishes. Prejudice is presumed, defendant asserts.

The State argues that this issue is also waived because it was not mentioned in defendant’s post-trial motion. On the "merits, the State asserts that defendant was not prejudiced by his counsel’s actions and that, at any rate, defendant should be estopped from challenging his counsel’s failure to cross-examine because defendant explicitly asked her to follow his request.

We will not treat this issue as waived even though it was not raised in defendant’s post-trial motion. As with the first issue, this issue could affect substantial rights. Thus, the substantial rights exception to the general waiver rule is applicable. 134 Ill. 2d R. 615(a); People v. Moman (1990), 201 Ill. App. 3d 293, 309.

Defendant is correct that whether to cross-examine witnesses is a decision to be made by the defense attorney, not the defendant. (People v. Keys (1990), 195 Ill. App. 3d 370, 374.) However, defendant is mistaken in his claim that his counsel’s forbearance in this case denied him his right to effective assistance of counsel. Defendant cites People v. Hattery (1985), 109 Ill. 2d 449, in support of his assertion. In Hattery our supreme court held that a defendant who had pled not guilty to murder charges was denied the effective assistance of counsel when his trial attorney admitted defendant’s guilt in opening statements, advanced no theory of defense and presented no evidence or closing argument. (Hattery, 109 Ill. 2d at 458-65.) The defense attorney’s strategy, to protect the defendant from the death penalty, did not subject the State’s case “to the ‘meaningful adversarial testing’ required by the sixth amendment.” (Hattery, 109 Ill. 2d at 464, quoting United States v. Cronic (1984), 466 U.S. 648, 656, 80 L. Ed. 2d 657, 666, 104 S. Ct. 2039, 2045.) The failures of the defense attorney in Hattery are so much more egregious than those of defense counsel here that Hattery is of no real help to defendant. Likewise, People v. Coss (1977), 45 Ill. App. 3d 539, and People v. Williams (1989), 192 Ill. App. 3d 304, cited by defendant, are also distinguishable. In Coss, defense counsel refused to participate in a proceeding to revoke the defendant’s probation because the attorney believed, incorrectly, that he would thereby waive a claim of error in the denial of his motion to dismiss the petition to revoke. (Coss, 45 Ill. App. 3d at 540.) Despite being admonished by the judge that participation would not amount to waiver of his claim, the attorney did not cross-examine the State’s witnesses or present any evidence. (Coss, 45 Ill. App. 3d at 540-41.) In Williams, a public defender refused to participate in defendant’s trial on murder charges. He did not cross-examine witnesses, present any evidence, or make opening or closing statements. (Williams, 192 Ill. App. 3d at 308-11;) Like Hattery, Coss and Williams do not aid defendant due to the qualitative differences in the actions of respective counsel.

“[Constitutionally guaranteed assistance of counsel has not been provided if the defendant can prove that counsel’s representation fell below an objective standard of reasonableness and that counsel’s shortcomings were so serious as to ‘deprive the defendant of a fair trial, a trial whose result is reliable.’ [Citation.] *** [A] defendant must establish ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (People v. Albanese (1984), 104 Ill. 2d 504, 525, quoting Strickland v. Washington (1984), 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068.) Further, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) Finally, if a defendant cannot show prejudice, a court need not examine the question of whether the attorney’s performance was deficient. Albanese, 104 Ill. 2d at 527, citing Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069-70.

Here, defendant has not shown prejudice, but claims that ineffectiveness is presumed under Hattery. We have found incomparable the actions of defense counsel in Hattery and in the present case. Moreover, our supreme court has held that Hattery should be narrowly construed and that “the defendant faces a high burden before he can forsake the two-part Strickland test.” (People v. Johnson (1989), 128 Ill. 2d 253, 269-70.) The Johnson court held that ineffectiveness would not be presumed where defense counsel admitted that the defendant had committed murder but not felony murder, and where defense counsel presented no evidence on behalf of the defendant. (Johnson, 128 Ill. 2d at 264-72.) Similarly, it was found that Hattery did not apply to a case in which defense counsel allegedly conceded the defendant’s guilt to a murder charge in closing argument where counsel did attempt to develop a theory of innocence at trial and did not make “a direct, unequivocal concession of the defendant’s guilt of the primary charge against him.” People v. Emerson (1987), 122 Ill. 2d 411, 430.

The record does not show how defendant was prejudiced by his counsel’s failure to cross-examine the three State witnesses. Indeed, these three witnesses were not the State’s primary witnesses. Rather each one’s testimony could have been omitted with no loss of persuasiveness in the evidence against defendant. For example, police officer Podschweit, who was not cross-examined, testified that he helped with defendant’s arrest after defendant had been pulled over. He also saw the gloves and the garbage can full of cigarettes in the car. Officer Nilles, who was cross-examined, testified about the garbage can and the gloves. Officer Anderson, who was not cross-examined, assisted Officer Fuller in interviewing defendant. However, Officer Fuller testified as to the interview. Moreover, defense counsel raised an objection and forced a clarification of the scope of Officer Anderson’s testimony. Finally, Officer Sullivan, who was not cross-examined, merely identified photographs of the cigarettes taken from the gas station while they were at the police station. The photos added little to the State’s case.

In sum, defendant has not established that he was prejudiced by his attorney’s inaction. Thus, he has not shown that he was denied effective assistance of counsel.

STANDBY STATUS

Defendant next argues that the trial judge erred when, at the time he changed the status of defense counsel to standby counsel, he limited counsel’s assistance to aiding defendant in court despite defendant’s request for help in drafting motions.

The State asserts that this issue is waived because it was not specified in defendant’s post-trial motion. Further, the State claims that the trial court has complete discretion in deciding the nature and extent of standby counsel’s involvement and that such discretion was not abused in this case.

First, we will not find this issue to have been waived even though it "was not included in defendant’s post-trial motion. The essence of defendant’s claim is that he should have had professional help in drafting his post-trial motion. It would be unfair to refuse to consider an issue on the grounds that it was not included in a post-trial motion when the very error asserted is purportedly the reason for the post-trial motion’s deficiency. Moreover, because this issue also concerns defendant’s right to counsel, it falls within the substantial rights exception to the waiver rule. 134 Ill. 2d R. 615(a).

A trial judge has discretion to appoint standby counsel for a pro se defendant. (People v. Gibson (1990), 136 Ill. 2d 362, 375.) Additionally, “deciding the nature and extent of standby counsel’s involvement” in the case is also a matter within the trial court’s discretion. (People v. Taggart (1992), 233 Ill. App. 3d 530, 557.) A defendant has no right to a “hybrid trial” where he can alternate between representing himself and being represented by an attorney. People v. Pondexter (1991), 214 Ill. App. 3d 79, 88.

Defendant argues that we should follow People v. Lindsey (1974), 17 Ill. App. 3d 137, in which it was held that the defendant was prejudiced when the court did not allow standby counsel to cross-examine witnesses or make objections. (Lindsey, 17 Ill. App. 3d at 143-44.) However, Lindsey is not on point here and does not require reversal. In Lindsey, the court emphasized that defendant was prejudiced by having his requests for assistance from standby counsel denied because “the trial court did not initially restrict or limit the availability of” standby counsel. (Lindsey, 17 Ill. App. 3d at 143.) Therefore, Lindsey implies that no prejudice would have occurred if the trial judge had set limits on standby counsel’s availability and the defendant had elected to proceed pro se with those limitations. That is exactly what happened here.

The trial judge told defendant before defendant elected to proceed pro se that standby counsel would only assist him in court and would not be available to help defendant draft motions. Defendant clearly agreed to represent himself subject to the limitations on standby counsel’s availability. Thus, this case is not like Lindsey, in which the defendant was apparently surprised by the limits placed on standby counsel’s assistance after the defendant had made the decision to represent himself.

Further, we believe that the limits placed on standby counsel’s assistance here were not an abuse of discretion. The role of standby counsel is to assist a defendant who has elected to represent himself. (Gibson, 136 Ill. 2d at 374-75.) The defendant is in charge of his trial. Because a defendant has no right to a “hybrid trial,” it behooves a trial judge to set out the rules to be followed at the time the defendant decides whether to forego full representation. Otherwise, a defendant may misunderstand standby counsel’s role.

The trial judge was not required to allow defendant to proceed pro se with standby counsel (Taggart, 233 Ill. App. 3d at 556; Lindsey, 17 Ill. App. 3d at 143), and the judge could properly limit standby counsel’s role. (Taggart, 233 Ill. App. 3d at 557.) We believe that the dividing line drawn by the trial judge here helped ensure that no “hybrid trial” would occur. We agree with the decision in Taggart where it was held that standby counsel was properly prohibited from prompting the defendant to make objections. (Taggart, 233 Ill. App. 3d at 556-58.) The trial court there had informed the defendant that standby counsel was “not to prompt you by being the attorney” and that the defendant assumed the responsibility of making objections. (Taggart, 233 Ill. App. 3d at 557.) As in Taggart, the limitation placed on standby counsel’s assistance here was reasonable in light of the fact that defendant could consult with his attorney in court. (Taggart, 233 Ill. App. 3d at 557-58.) We reject defendant’s assertion that Taggart is not persuasive because Taggart involved a jury trial while a bench trial took place in this case. While the jury’s perception of whether the defendant is truly representing himself is a factor to consider when deciding the scope of standby counsel’s role (Pondexter, 214 Ill. App. 3d at 88), we do not believe that it is determinative. (See Taggart, 233 Ill. App. 3d at 557.) We see no abuse of discretion.

RIGHT TO COUNSEL

Finally, defendant claims that he is entitled to a new sentencing hearing because the trial judge did not obtain a knowing and voluntary waiver of his right to counsel when defendant represented himself without standby counsel at sentencing. Defendant argues that he was prejudiced because, after defense counsel was dismissed, defendant rejected the TASC treatment that the trial judge was trying to get defendant to accept and defendant offered no argument on his own behalf prior to receiving an extended sentence.

The State argues that the issue is waived because defendant did not challenge his sentence by way of a motion to reconsider. Also, the State contends that the waiver of counsel was proper because defendant had received the requisite warnings 13 months earlier, at his arraignment. The State further asserts that defendant was so sophisticated with regard to the law that the failure to admonish him was harmless.

Again, we reject the State’s waiver argument on the basis of the substantial rights exception to the general rule that issues not brought to the trial court’s attention cannot be raised on appeal. 134 Ill. 2d R. 615(a); People v. McClendon (1990), 197 Ill. App. 3d 472, 482.

Supreme Court Rule 401 governs waivers of the right to counsel in criminal proceedings. It provides, in pertinent part:

“Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.” 134 Ill. 2d R. 401(a).

Defendant had a constitutional right to counsel at his sentencing proceeding (People v. Baker (1982), 92 Ill. 2d 85, 90), and a waiver of counsel without the proper admonitions is ineffective. (People v. Langley (1992), 226 Ill. App. 3d 742, 749.) However, “[substantial compliance with Rule 401(a) is sufficient to effectuate a valid waiver of counsel if the record indicates that the waiver was made knowingly and intelligently.” (Emphasis in original.) People v. Coleman (1989), 129 Ill. 2d 321, 333.

The record here shows that defendant was not given the Rule 401(a) warnings at the time he elected to represent himself at sentencing. The State notes that defendant was given the Rule 401(a) admonitions at his arraignment and cites Baker for the proposition that these arraignment admonitions were sufficient. However, defendant’s arraignment took place 13 months before sentencing and defendant did not waive his right to counsel at that time. In Baker, the accused waived his right to counsel at his arraignment, after being properly informed pursuant to Rule 401(a), and the supreme court merely held “that a competent waiver of counsel at arraignment by a defendant who is advised that he has a constitutional right to counsel at all stages of the proceedings is operative at the time of sentencing.” (Baker, 92 Ill. 2d at 95.) Thus, Baker is not on point.

The State’s other main case, People v. Smith (1985), 133 Ill. App. 3d 574, is not apposite, either. In that case, the court found that the defendant “did not waive the right to counsel within the meaning of Rule 401(a), and strict compliance with that rule was not necessary” because the defendant had acquiesced to having standby counsel. Smith, 133 Ill. App. 3d at 581.

People v. Langley (1992), 226 Ill. App. 3d 742, cited by defendant, is also distinguishable. There, the defendant elected to represent himself at sentencing and the trial judge provided no admonishments at that time. (Langley, 226 Ill. App. 3d at 750-51.) The court found that the defendant was denied his right to counsel and that the defendant was prejudiced because representation by counsel may have made a difference in the sentence imposed. (Langley, 226 Ill. App. 3d at 751-52.) Likewise, in this case there were no formal admonitions given when defendant finally rejected standby counsel at the sixth hearing in the sentencing process. However, we do not believe that defendant was prejudiced. First, defendant had the benefit of standby counsel at the first five hearings at sentencing. Second, at the initial hearing, defendant heard the State’s Attorney argue that he was eligible for a three- to seven-year sentence, that he was eligible for an extended term based on his prior record, and that the State wanted a term of 10 years’ imprisonment. Third, the trial judge informed defendant at this same hearing that an extended-term sentence would be between 7 and 14 years and that, if defendant was not accepted for or did not complete a treatment program, the judge would sentence him to the penitentiary, “probably for as long as I can put you there.” Fourth, defendant’s standby counsel argued at the second hearing that the court should order drug treatment for defendant.

Because defendant did not elect to represent himself until well into the sentencing proceedings, defendant obviously knew the nature of the charge for which he had been convicted. Defendant was also informed of the penalties which could be imposed upon him. Finally, the record shows that defendant knew of his right to have counsel represent him and to have counsel appointed for that purpose. Thus, we find that the error committed by the trial judge in failing to formally admonish defendant pursuant to Rule 401(a) when defendant rejected standby counsel was harmless under the facts of this case. The record here indicates that defendant’s waiver of counsel was knowing and intelligent.

For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

Affirmed.

UNVERZAGT and WOODWARD, JJ., concur.


author: JUSTICE DOYLE PRESIDING JUSTICE INGLIS,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH T. TURNER et al., Defendants-Appellants.
    Second District
    Nos. 2—91—0639, 2—91—0640 cons.
    Opinion filed August 17, 1993.
    INGLIS, P.J., dissenting.

      G. Joseph Weller and Ingrid L. Holler, both of State Appellate Defender’s Office, of Elgin, for appellants.
    James E. Ryan, State’s Attorney, of Wheaton, Brian L. Buzard, of Mt. Morris, and Jay Wiegman, of Springfield (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Following a bench trial, defendants, Kenneth Turner and Luvenia Givens, were each found guilty of one count of cruelty to children (Ill. Rev. Stat. 1989, ch. 23, par. 2368 (now 720 ILCS 115/53 (West 1992))). Defendants were sentenced to 30 months’ probation with counselling and ordered to pay costs. Defendants filed a timely appeal asserting that (1) the State failed to prove beyond a reasonable doubt that defendants unnecessarily exposed their children to the inclemency of the weather; (2) the trial court erred by considering evidence that defendants had left their children unattended in a car on a previous occasion; and (3) victims assistance fines were improperly imposed by the circuit clerk.

On January 4, 1991, defendants were living in an apartment in Woodridge with their children, Kenyatta Givens, then age nine, and Keenath Turner, then age two. A friend of defendant Turner, Harry Campbell, also lived with them.

Defendants both worked as paper staffers at the Chicago Tribune distribution center in Downers Grove where they inserted various sections into the newspaper. They were regularly scheduled to work on Thursdays, Fridays, and Saturdays, and they worked irregular hours during the rest of the week. Defendant Turner was also employed delivering papers. On Friday, January 4, defendants were scheduled to work from 3:30 p.m. until they were finished or had to leave. The testimony of defendants’ supervisor indicated the paper-stuffing crew worked that evening until at least 2 a.m. the following morning. Defendants were paid a certain amount for each paper they completed, rather than hourly.

At about 3 p.m. on January 4, 1991, defendant Turner attempted to phone Campbell from a convenience store to assure that he would be able to watch the children. Defendants also called their respective mothers and Turner’s brother, but none of them were able to baby-sit. Unable to secure a baby-sitter, defendants drove to work, parked on the street, left the children in the car, and went to work inside the building. Evidence showed that the temperature that evening was 21 degrees Fahrenheit.

At about 6:30 p.m. someone called the Downers Grove police to report that two children had been left in a car for approximately three hours. Officer David Franklin arrived at the Tribune building at about 6:40 and found the children huddled together inside the car. The car was not running, and its windows were covered with frost from the cold. Although Kenyatta testified that she had had gloves, a hood, and a cover with her, the police officers testified that neither child had gloves or a hat, nor was there a blanket in the car. The two-year-old had a running nose and his diaper needed changing. There was also neither food nor water in the car. The older child initially told police she was cold but later stated that she really was not. Paramedics found no physical harm to the children. Defendants were arrested and charged with cruelty to children, a Class 4 felony.

At trial, Campbell explained that he had known Turner since they were in the fifth grade. In June 1989, defendants were unemployed and homeless and lived in their car until they secured employment at the Tribune. Campbell moved in with defendants shortly after they found an apartment. He lived with them rent-free in exchange for periodically baby-sitting the children. Occasionally, he would stop by the Tribune on his way home from work to see if the children were waiting in the car for him to baby-sit. This would happen approximately three times per month. Defendant Turner admitted that there had been no arrangement made for Campbell to baby-sit the children on January 4, 1991. On that day Campbell worked late, getting off at 5:30. He did not think the children would require baby-sitting at that late hour, and so he proceeded directly home.

Tim Yarcheeta testified that he is a supervisor at the Tribune. Defendants would sometimes work for him and were doing so on January 4. Defendants were scheduled to work until they finished all the papers or until they “had to leave.” Yarcheeta recalled that in November 1990 he had told Turner that he could bring the children into the building. Defendant, however, had also worked under another supervisor, known as “Bug.” Yarcheeta and Bug each supervised one-half of the work area in the Tribune’s warehouse. Bug had told Turner once before that it would not be wise to bring his children into the building because the employer had no liability insurance to cover them. Also, there had previously been problems with unsupervised children running around in the work area, and Yarcheeta had told Bug on a prior occasion to tell his people to keep their children out of -Yarcheeta’s side of the warehouse.

Two Markham police officers testified that defendants had previously been arrested after a child was found left alone in Givens’ car outside the Markham police station in October 1989.

The court found defendants guilty. After denying their post-trial motions, it sentenced them to 30 months’ probation, including counseling.

Defendants’ first contention on appeal is that the State failed to prove beyond a reasonable doubt that they wilfully and unnecessarily exposed their children to the inclemency of the weather. The statute under which defendants were convicted provides:

“Any person who shall wilfully and unnecessarily expose to the inclemency of the weather, or shall in any other manner injure in health or limb, any child, apprentice, or other person under his legal control, shall be guilty of a Class 4 felony.” Ill. Rev. Stat. 1989, ch. 23, par. 2368 (now 720 ILCS 115/53 (West 1992)).

Defendants contend that the State was required to prove beyond a reasonable doubt that the exposure of the children was done “unnecessarily.” They further contend that the State failed to meet its burden with respect to this element of the offense. Defendants presented evidence that they feared losing their jobs and perhaps becoming homeless again, that they were unable to afford to pay a baby-sitter, and that they had attempted unsuccessfully to find someone to watch the children. Moreover, they received mixed signals from Tribune supervisors concerning whether the children could stay inside the building.

The State does not contest that it had the burden of proving lack of necessity but contends that the evidence was sufficient. According to the State, the evidence established that other options were available, such as bringing the children inside or having one of the parents stay home from work. Therefore, leaving them in the car and exposing them to the weather was unnecessary.

Initially, we agree that where the crime of cruelty to a child is based upon exposure to the inclemency of the weather, the lack of necessity is an element of the offense which the State is required to prove beyond a reasonable doubt. (See People v. Miller (1983), 116 Ill. App. 3d 361, 365-67.) Whether defendants unnecessarily exposed their children to the inclemency of the weather was a question of fact which must be resolved- by considering all the attendant circumstances. Cf. People v. Gaurige (1988), 168 Ill. App. 3d 855, 865 (factual determination regarding whether actions taken in self-defense were necessary depends upon the surrounding facts and circumstances of the case).

Due process requires that the prosecution prove beyond a reasonable doubt all the elements included in the definition of the charged offense. (Patterson v. New York (1977), 432 U.S. 197, 210, 53 L. Ed. 2d 281, 292, 97 S. Ct. 2319, 2327.) The standard for reviewing whether sufficient evidence was presented to support a criminal conviction is whether, after considering all the evidence, in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (People v. Wittenmyer (1992), 151 Ill. 2d 175, 190; People v. Campbell (1992), 146 Ill. 2d 363, 374.) A reviewing court will not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of witnesses, and will not reverse a criminal conviction unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. Campbell, 146 Ill. 2d at 375.

“Necessary” and the related term “unnecessarily” are commonly used in the law, and their meaning has a great flexibility depending upon the context in which they are used. (See Illinois Bell Telephone Co. v. Fox (1949), 402 Ill. 617, 631.) “Necessity” can encompass that which is “absolutely necessary,” “indispensable,” “expedient,” or merely “reasonably convenient.” (Illinois Bell, 402 Ill. at 631.) In the context of the affirmative defense of necessity, the meaning is very restrictive; it applies only in situations which the defendant is blameless in occasioning or developing, and then only to conduct which the defendant reasonably believes is necessary to avoid a public or private injury greater than that which might reasonably result from that conduct. (720 ILCS 5/7 — 13 (West 1992).) Because the legislature has not defined the term “unnecessarily,” as it is used in section 53 of “An Act to revise the law in relation to criminal jurisprudence” (the Criminal Jurisprudence Act) (720 ILCS 115/53 (West 1992)), we must ascertain and give effect to the intent and meaning of the legislature. (See People v. Frieberg (1992), 147 Ill. 2d 326, 345.) In making this determination, we may properly consider not only the language of the statute, but also the reason and necessity for the law, the evils sought to be remedied, and the purpose to be achieved. Frieberg, 147 Ill. 2d at 345.

The statute, enacted in 1874 (Ill. Rev. Stat. 1874, ch. 38, par. 53), codified and broadened the common law crime of cruelty to children, as established in Rex v. Ridley (1811), 2 Campbell 650, and it was intended to make it an offense to in any manner wilfully do such acts as to injure the health of a child under one’s legal control. (See Miller, 116 Ill. App. 3d at 365-67; People v. Lynam (1895), 65 Ill. App. 687, 688-89.) The law furthers the common legislative purpose of protecting children, who are particularly vulnerable to abuse by a caretaker, and establishing certain basic responsibilities for those entrusted with the legal control of a youth. (See, e.g., 720 ILCS 150/4 (West 1992); see also 720 ILCS 5/12 — 21 (West 1992) (establishing criminal penalties for caretakers of elderly or disabled persons who fail to perform acts which are necessary to preserve the life of individuals for whom they are responsible).) Considering that the care and discipline of children is a difficult and multifaceted responsibility, we recognize that we must take care in construing the types of conduct prohibited by section 53 so that we adequately protect children, but at the same time avoid placing an impossible or unreasonable burden upon their parents and guardians. The crime of cruelty to children, however, is clearly intended as a preventative measure, and it does not require as an element that the child or children being exposed incur any actual physical injury. (See Lynam, 65 Ill. App. at 689.) Whether a child’s caretaker unnecessarily exposed the child to the inclemency of the weather must, therefore, be determined by focusing upon the risk to the child rather than the result of the exposure.

Several cases have addressed a concern that otherwise acceptable disciplinary acts might violate section 53 if the statute were given a literal meaning. (See People v. Tomlianovich (1987), 161 Ill. App. 3d 241, 242-43; People v. Virgin (1978), 60 Ill. App. 3d 964, 966-68.) Our courts have resolved such conflicts by applying an element of “reasonableness” to cases in which a child has been injured by a caretaker or parent’s conduct in administering discipline. “ ‘[A] parent’s disciplinary authority over his children “must be exercised within the bounds of reason and humanity.” *** [Pjarental rights of discipline are limited by a standard of reasonableness.’ ” (Virgin, 60 Ill. App. 3d at 968, quoting People v. Ball (1974), 58 Ill. 2d 36, 39.) We believe that the underlying test of reasonableness must also apply when the crime of cruelty to children is based upon exposing a child to the inclemency of the weather. Reasonableness, in this context, is thus incorporated into the concept of necessity. For example, it will generally be reasonable and not viewed as an unnecessary exposure for parents to allow their children to play outside in the wintertime. If, however, the parents fail to properly dress the children, if the weather conditions are too extreme, or if the children are forced to remain outside for an excessive period of time, the parents’ conduct can be determined to unreasonably and unnecessarily place the children at risk of harm. Again, the question of necessity is a factual one which must be determined based upon the facts and circumstances surrounding each individual case.

Interpreting a similar statutory provision, the Michigan Supreme Court in 1858 commented as follows:

“Did the acts of the party leaving or abandoning the child, viewed in connection with the time, place, and all the accompanying and surrounding circumstances, subject the child to the hazard of such personal injury? If so, this is an exposure. The law cannot enumerate the chances, nor fix upon any degree of risk as the dividing line between impunity and crime. And any rule, based upon an attempted distinction of this kind would be clearly giving impunity to crime, or be so vague as to be wholly unintelligible. *** The law can recognize no degree of hazard *** as void of criminality. We do not intend. *** to say that a bare possibility of injury would constitute the exposure; but the only safe and practical rule upon this point, we think, is this: If, from the tihie, place, and manner of leaving the child — its age, dress, the state of the weather, and all the circumstances surrounding and accompanying the transaction— *** there was a reasonable ground to apprehend, or fear, that such injury might thereby happen to the child, *** it is an. exposure *** but if, judging from the like premises, there was no reasonable ground to fear or apprehend that such injury might occur, then the exposure ***' did not exist. *** [I]f the child be left at such a time, in such a place, and under such circumstances, as would render a parent, or other person (to whom it is confided) of ordinary prudence and humanity, reasonably apprehensive of such injury to the child, then the hazard may be said to exist, and it is an exposure within the statute.” (Emphasis in original.) Shannon v. People (1858), 5 Mich. 72, 92-93.

In the present case, defendants argue that their actions were justified because of the necessity to earn an income which would enable them to provide food and shelter to the family. Economic necessity, however, such as the theft of food, has never been recognized or accepted as a defense to otherwise criminal conduct. (See 720 ILCS Ann. 5/7 — 13, Committee Comments — 1961, at 400 (Smith-Hurd 1993); State v. Moe (1933), 174 Wash. 303, 307, 24 P.2d 638, 640 (“[E]conomic necessity is frequently invoked in mitigation of punishment, but has never been recognized as a defense”); Rex v. Holden (Cr. Cas. Res. 1809), 168 Eng. Rep. 607.) Although we find that actions deemed “necessary” under section 53 of the Criminal Jurisprudence Act (720 ILCS 115/53 (West 1992)) encompass a broader range than that permitted under the affirmative defense of necessity under section 7 — 13 of the Criminal Code of 1961 (720 ILCS 5/7-13 (West 1992)), the preclusion of economically necessary conduct as a justification still applies. To hold otherwise would be a contradiction of the legislature’s intent to protect children. If the facts of the present case are taken to a hypothetical extreme and it is assumed that the temperature had been 20 degrees below zero, rather than 20 above, would defendants’ conduct be excusable because one of them might have lost a job by choosing to remain at home with the children? Although defendants were faced with a difficult decision, it was the function of the fact finder to determine from all the circumstances whether their decision to leave the children locked in the car on that cold winter day was unreasonable and unnecessary.

Reviewing the attendant circumstances, we note that one of the two children was only two years old. The children were locked in the car for more than three hours, and the temperature outside was well below freezing. The windows of the car had frosted over from the cold. The trial court made a factual determination that this exposure was unnecessary. Based upon the facts, viewed in a light most favorable to the prosecution, we conclude that there was sufficient evidence, to support the trial court’s determination. A risk to the children, especially the two-year-old, existed, and either of the defendants could have elected to stay home with the children rather than go to work. We recognize the fact that this family was struggling financially, and that if either defendant had stayed with the children and became unemployed the family might have suffered further hardship. That consideration alone, however, does not excuse defendants from the responsibility of acting on the more immediate priority of protecting the children from an imminent threat to their health and safety. The unfortunate financial dilemma confronting this family was an important extenuating factor which apparently was considered by the trial court in determining the appropriate sentencing disposition.

Defendants next argue that the trial court erred by failing to grant their motions in limine to bar the introduction of other crimes evidence. We can find no copy of any such motion in the record provided on appeal. Also, after reviewing the trial testimony, we find no mention of any such motion, or any related objection, until after Officer Barron had testified on this subject. It is the responsibility of the party making an assertion of error to preserve the asserted error and present a sufficient record for review. (People v. Smith (1985), 106 Ill. 2d 327, 334-35; People v. Odumuyiwa (1989), 188 Ill. App. 3d 40, 45-46.) Despite the inadequate record submitted by defendants, the subsequent arguments of counsel and the ruling of the court indicate that a motion was made regarding the introduction of this evidence, and they also provide us with a sufficient basis upon which to address this question. Defendants argue that evidence of defendants’ "previous arrest for leaving one of their children locked in their car was erroneously admitted and prejudiced their case by raising the inference that they were more likely to have committed the current crime. The State responds that the prior, similar crime demonstrated defendants’ knowledge of the dangers inherent in exposing their children to the inclemency of the weather, and also that any error which occurred was harmless because defendants admitted the act of leaving their children in the car.

Other crimes evidence is admissible to prove modus operandi, intent, identity, motive, or absence of mistake, or if it is relevant to establish any material question other than the propensity to commit a crime. (People v. Thingvold (1991), 145 Ill. 2d 441, 452; People v. Contreras (1993), 246 Ill. App. 3d 502, 512.) When such evidence is offered, the trial court must weigh the relevance of the evidence against the prejudicial effect it may have upon the defendant. (Thingvold, 145 Ill. 2d at 452; Contreras, 246 Ill. App. 3d at 512.) The trial court’s ruling as to the admissibility of such evidence will not be reversed absent a clear showing of abuse of discretion. Thingvold, 145 Ill. 2d at 452-53; Contreras, 246 Ill. App. 3d at 512.

At trial, the State argued that evidence of defendants’ prior act of leaving one of their children locked in a car during October 1989 was admissible to prove both wilfulness and an absence of mistake on the part of defendants. (See People v. McKibbins (1983), 96 Ill. 2d 176, 182-86; People v. Harris (1991), 220 Ill. App. 3d 53, 54-55.) Defendants argue on appeal that their mental state was not in question: “There was no claim of mistake nor issue of wilfulness at trial; there is no dispute that the defendants consciously left the children in the car.” We agree with defendants’ position that the acts committed by them were not in controversy; rather, the trial focused upon only the issue of whether the acts defendants undisputedly committed constituted a crime in violation of section 53 (720 ILCS 115/53 (West 1992)). Accordingly, we must conclude that the other crimes evidence could have had no relevance to any alleged improper issue of criminal propensity, and the admission of the evidence could have had no bearing on the outcome of this bench trial. We hold, therefore, that any error in admitting this evidence was harmless, and no reversal would be required. See People v. Smith (1984), 102 Ill. 2d 365, 374, rev’d on other grounds (1984), 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490; People v. Nunn (1989), 184 Ill. App. 3d 253, 267.

Finally, defendants challenge the victims assistance fines (Ill. Rev. Stat. 1991, ch. 70, par. 510(c) (now 725 ILCS 240/10(c) (West 1992))) imposed against them. It is clear from the record that the court failed to impose the victims assistance fine as mandated by law. (See People v. Wisotzke (1990), 204 Ill. App. 3d 44, 50.) Yet, the fines were somehow charged to defendants at a later time. We therefore vacate that portion of defendants’ sentences involving the victims assistance fines and remand to the trial court with directions that the mandatory fine be imposed.

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed in part and remanded in part with directions.

COLWELL, J., concurs.

PRESIDING JUSTICE INGLIS,

dissenting:

Although I agree with the majority’s reasoning in theory, I respectfully dissent from their decision. In my view, the State did not make its case. It did not prove beyond a reasonable doubt that it was unreasonable for the defendants, under the circumstances presented, to leave their small children in a cold car while they went to work. Readers note that I am not unsympathetic to the discomfort that might have been suffered by the children in their three hours in a dark and cold vehicle. Neither do I believe that a struggling working parent may make a cursory attempt to find child care and then be justified in leaving his or her child in a car while the parent shows up for a job that pays the rent and puts food on the table.

The readers of this case are unlikely to have ever been homeless or suffered in a helpless-state of poverty, yet at the heart of this case are two social problems which have increasingly received public attention in recent years: poverty and homelessness.

The facts are clear that the couple before us, convicted of a felony, were recently homeless and desperately in need of money to retain their housing, which they were trying to earn at a marginal labor. We are informed by the record that they have in fact since lost their housing. In this case, the critical question is whether it was proved beyond a reasonable doubt that it was unreasonable for these defendants, under their circumstances, to do what they did. Homelessness and poverty with marginal employment present facts that are important in determining reasonableness. Under section 53 (Ill. Rev. Stat. 1989, ch. 23, par. 2368), the burden on the question of reasonable necessity was the State’s. It had to prove each element of the felony charge beyond a reasonable doubt. People v. Lynch (1987), 151 Ill. App. 3d 987, 990.

This was not a case in which the evidence shows that the children were left in a car while the parents were working to afford a new television set or were out drinking or pursuing recreational interests. The State might well have met its burden of proof in this case had it offered evidence of persons who were ready, willing and able to watch the children on January 4. Similarly, the State might have shown that the defendants’ finances were such that they could have paid for child care or that one of them could have stayed home from work that evening. No such proof was offered, and without such proof the State has failed to prove that these defendants, under their circumstances, acted “unnecessarily.” The defendants appear to have been faced with leaving the children in the car for a few hours or being out on the street as a family in the near future. In my view, the State did not meet its burden of proof on an essential element of the offense, mandating reversal of the defendants’ convictions.